Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Kailash A. Kothari Versus ITO, Ward 13 (1) (3) , Mumbai

2017 (11) TMI 320 - ITAT MUMBAI

Unexplained gifts received - capacity of donor to give gifts - Held that:- In this case the assessee has claimed to have received a gift of ₹ 11 lacs from his elder sister. The sister had shown statement of income of ₹ 93,112/- for assessment year 2007-08. No return of income was filed. The source of gift in the hands of the sister has been further explained as gift from her two daughters and son at ₹ 3,00,000/-, ₹ 3,50,000/- and ₹ 2,80,000/- respectively. Rest amou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or did not have the capacity to grant the gift of ₹ 11 lacs to the assessee. Hence, as the assessee has failed to discharge the onus regarding cogently proving the capacity of the donor to give the gift. Hence, we do not find any infirmity in the order of learned CIT-A. - Decided against assessee. - I.T.A. No.2334/Mum/2012 - Dated:- 1-11-2017 - SHRI SHAMIM YAHYA, AM AND SHRI AMARJIT SINGH, JM For The Appellant : Ms. Pranali Dixit For The Respondent : Shri Ram Tiwari ORDER Per Shamim Yahya, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

1 on 31/12/2010. 2. The Learned Commissioner erred in law in upholding the Order of the Assessing Officer of adding the Cash Gift amount of ₹ 11,00,000.00 given by the Assessee's Sister to him as his income. He ought not to have done so. 3. The Learned Commissioner erred in law in rejecting the Affidavit and Declaration of Gift by Mrs. Badamiben N. Jain, Sister of the Appellant and doubting her creditworthiness. He ought not to have done so. 4. The Learned Commissioner erred in law in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in cash. It was noted by the Assessing Officer that the sister was not a regular income tax assessee and had no return of income for the A.Y. 2007-08 was filed. The financial status of the sister was not so good so as to give a gift of such a big amount. She has three children and her husband was an accountant. No cash flow statement of the sister had been provided to prove the cash gift. The Assessing Officer, therefore, did not believe that the sister could give gift of such a huge amount. In .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e earlier assessment years was below the taxable limit. The age of the donor was around 49 years. The source of the money for giving gift to her brother was explained to be gift of ₹ 3,00,000/-, ₹ 3,50,000/- and ₹ 2,80,000/- received by the donor from her two daughters and son respectively and out of her opening cash balance. As regards the details of the children of the donor, it has been submitted that the two daughters had finished 1st year B. Com (Payal Kumar NJain) and 2nd .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the case and the submissions made by the assessee. It is settled position of law that whenever cash is found credited in the books of the assessee, the onus is upon the assessee to prove the source of the same. For this purpose, the assessee is not only to prove the identity of the person from whom the money is claimed to have been received, the assessee is also required to prove the genuineness of the transaction as well as the creditworthiness of the person, in this case, the donor. It is cle .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

etween a brother and a sister. However, it defies all logic as to how and why a sister, who does not appear to be well off economically, whose husband is an accountant and whose children are still very young and are claimed to be earning some income by giving tuitions, would give such huge amount of ₹ 11,00,000/- as gift. No social occasion for giving of the gift has also been brought on record. It appears that the assessee is much better off than the sister economically. In the Indian cul .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he children have gifted ₹ 9.30 lakhs to their mother and what was the source of the said alleged gifts to the mother. The claim is unbelievable and cannot be accepted. Further, no other occasion has been shown by the assessee that they were in the habit of giving or receiving such huge amounts of gifts, either prior to the gift in question or later. Hence, the genuineness of the transaction is not established. 3.1 The above facts also prove that the sister who is alleged to have given gift .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

her children had earnings and savings of the amount of the alleged gift. Secondly, the donor is shown to the gift in cash and the children are also in turn shown to have ti£ ₹ 9.30 lakhs to their mother in cash. Undisputably, the donor and her family members are not well off economically. It is unacceptable that they would be keeping money amounting to such a huge amount as ₹ 11 lakhs in the form of cash. 3.2 From the above, it is clear that the assessee has not been able to di .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gift from his sister. 4. The affidavit and gift declaration filed by the donor would not be of any help to the assessee as these are only self-serving documents which is clear from the discussions hereinabove. 4.1 In case of Ashok Mahindru & Sons (HUF) 173 Taxman 178 (Del), it has been held that if there is enough material to raise a strong suspicion regarding nature of transaction, the authorities can reject the documents and require the assessee to show that the transaction is above board .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ke into consideration the totality of the facts and circumstances of the case and to draw his own inference on the basis thereof and circumstantial evidence in such cases is not impermissible. In cases like this, it is only the circumstantial evidence which will be available. No direct evidence can be expected........ In case of Durga Prasad More 82 ITR 540 (SC), the Hon'ble Supreme Court observed that the taxing authorities are not required to put on blinkers while looking at the documents .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ity, it is not necessary that the evidence should be in the nature of beyond doubt as is required to fix a criminal liability. Tax liability can be fastened on the basis of preponderance of probabilities . Perusal and examination of the facts in the case of the assessee clearly show that the donor did not have the creditworthiness to gift away the amount of ₹ 11,00,000/- to the assessee and even the genuineness of the transaction has not been proved by the assessee. All the transactions re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sed the records. Learned counsel of the assessee submitted that the assessee has all the necessary documentary evidence. The authorities below have erred in not accepting the veracity of the same. He further submitted that no material has been brought on record that the said gift is false. He further referred to following case laws: 1. ITA Nos.6,8,9,10 and 39/Vizag/2015 in the case of Dr.Vempala Bala Manohar vs. ITO; and 2. Hon ble Delhi High Court decision in the case of CIT vs. Sudhir Budhraja .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version