TMI Blog2012 (4) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Kamala Agrawal, the gift totalling ₹ 2,25,000/- from different persons was shown similarly Rajiv Agarwal also claimed gift from different persons totalling ₹ 2,10,000/- in the assessment year in question. The assessing officer held that the gifts are not genuine and recorded finding that assessee has introduced her/his own fund in the garb of so called gifts and they are added to the income of Assessee from undisclosed source. Against the order passed by assessing officer, two appeals were filed before the Commissioner, Income Tax which were dismissed by common judgment and order dated 9th January, 1998. The appeals filed before the Tribunal were also dismissed vide order dated 08.11.2002. Learned counsel for the appellants challenging the order passed by the income tax authorities below contended that the assessee has substantially proved the relevant facts including the identity of the donor, payment through cheque transaction and the burden was on the department to prove, whereas merely on the ground that donee did not appear before assessing officer an adverse inference has been drawn and gifts have been disapproved. He submitted that all transactions were rou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I had made specific question as to whether she had also given a gift to them, she specifically said no. I had specifically questioned as to whether she made any help to them as their financial position is not good. To this question, she replied I had never helped them. I had put a straight question as to whether there was any occasion for the gift, she said that the gift have been given out of love and affection. Than I put again a straight question whether she had received any gift from her mother, father, brother, sister, brother-in-law, father-in-law etc, she replied no. then I asked whether she had ever made any gifts to anyone in the life, she said no. Then I put a question as to why she has not made the gift when she had received the gifts, she said there is no reason for it. The counsel was requested to put cross question which was declined. I had requested the assessee to produce the donor so as to ascertain their financial position as also their correct position of the facts. To my surprise the assessee avoided to produce them on some ground or the other. It is very well settled principle of law that where the assessee claim to have received the gifts, the onus upon her to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... celebrate occasion. Although the assessee and her family is family of means and the donors are having a vary nominal income just to carry on their life yet the donee did not make any gift or help to the socalled donors. None of the donors appeared before me for statement although the assessee was specifically requested to produce them and summon were issued by me instead of they have preferred to file the confirmation. In view of the above facts, I hold that the gifts are not genuine and the assessee had introduced him own funds in the garb of socalled gifts and the same are added as income of the assessee from undisclosed sources. The appellate authority also confirmed the findings recorded by assessing officer and the tribunal again in paragraph 9 has reconsidered the issues and noted the fact that in spite of notices issued to the donor to appear before the tribunal, they failed to appear. It is useful to quote para 9 of the tribunal which is as follows. I have considered the rival submissions and perused the record carefully. It is to be noted that a new company was formed in Gwalior and admittedly the amount of gift had gone to that company in which husband an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,20,000/- in A.Y. 1989-90 and the same was accepted by the Department. Copy of assessment order filed by the assessee itself show that she had examined all the donors and the AO believed the version of donors and accepted the genuineness, which is not the case before me. Here the assessee had not produced any one of the donors and that fact is rather going against the assessee. These circumstances and that fact is rather going against the assessee. These circumstances and the facts as noted by authorities below are sufficient, particularly when assessee failed to produce the donors for cross examination to disbelieve the theory of gift. I see no reason to interfere in the order of CIT(A). Accordingly, common of CIT (A) on the issue in question is upheld. The submission on which learned counsel for the appellant has pressed is that since the identity of donor was proved by their name, PAN no. and other details and the amounts were through bank transaction, there was no reason to disbelieve the said gifts. He has placed reliance on judgment of Delhi High Court 2008 299 ITR 268 (CIT v. Divine Leasing and Finance Ltd. Delhi) . It is submitted that under Section 68 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Commissioner of Income Tax vrs. Orisa Corporation 159 ITR page 78. The tribunal in the aforesaid case recorded finding that apart from issuing notice to the creditor no further step was take to examine the source of credit. The following was laid down by the Apex Court in the said judgement: In this case, the assessee had given the names and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessees. Their index numbers where in the file of the Revenue. The revenue, apart from issuing notices under Section 131 at the instance of the assessee, did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find out whether they were creditworthy or were such who court advance the alleged loans. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the assessee could not do anything further. In the premises, if the Tribunal came to the conclusion that the assessee has discharged the burden that lay on him, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re cannot be any dispute to the proposition as laid down by High Court in the aforesaid case but as observed above present is not a case were finding can be said to be based on no material or perverse. The said case has no application in the facts of the case. Following was observed in above case:- The issue raised by the assessee in the appeal cannot be said to involve any question of law, much less a substantial question of law. A question of fact becomes a question of law, if the finding is either without any evidence or material, or if the finding is contrary to the evidence, or is perverse or there is no direct nexus between the conclusion of fact and the primary fact upon which that conclusion is based. But, it is not possible to turn a mere question of fact into a question of law by asking whether as a matter of law the authority came to a correct conclusion upon a matter of fact. The judgment which has been referred by the learned counsel for the department in Commissioner of Income Tax Vs. P. Mohanakala (supra) fully supports the submission raised by learned counsel for the department. The Apex Court has laid down that mere fact that the transaction of the money ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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