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TMI Blog2022 (11) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... sment Year (A.Y) 2012-13. 2. The Registry has noted that there is delay of 56 days in filing the above appeal by the Revenue. This appeal is filed by the Revenue on 26.06.2020. This period falls under COVID-Pandemic situation, thus following Hon'ble Supreme Court judgment dated 23.3.2020 in suo moto Writ Petition (Civil) No.3 of 2020, vide Hon'ble Supreme Court has extended time limit for filing appeals w.e.f. 15.3.2020. Thus, there is no delay in filing the above appeal and we take the appeal of the assessee for adjudication 3. The brief facts of the case is that the assessee is an individual and doctor by profession. The assessee filed his Return of Income declaring total income of Rs. 16,34,278/-. The case was selected for scrutiny ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a kind of family arrangement for equalization of wealth among members of family. Relying upon various case laws, the A.O. treated the above gift as unexplained and added Rs. 3,06,13,009/- as the income of the assesse and demanded tax thereon. 4. Aggrieved against the reassessment order, the assessee filed an appeal before the Ld. Commissioner of Income Tax (Appeals), Vadodara. During the appellate proceedings, the assessee filed additional evidences namely DMAT A/c opening details by NRI brother, evidence of purchase of shares by NRI brother which were gifted to the assessee, bank statement of Axis Bank Ltd. of NRI brother showing debit entries for gifts made to the assessee. Letter dated 16.11.2015 from NRI brother stating that he is Non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act and requested to delete the addition of Rs. 3,06,13,009/- made by the Assessing Officer. 4.4. After considering the above submissions, the Ld. CIT(A) held that the A.O. accepted the purchase of shares by assessee's brother under NRI quota, the source of fund were paid through assessee's brother NRE bank account. Thus satisfied genuineness of the gift but however doubted the "occasion of the gift" in the absence of any family functions namely marriage, etc. 4.5. The Ld. CIT(A) relying upon Visakhapatnam Tribunal judgment in the case of Dr. Vempala Bala Manohar vs. ITO reported in 88 taxmann.com 410, Hon'ble Rajasthan High Court judgment in the case of Arun Kumar Kothari reported in 31 taxmann.com 258 and the Hon'ble Andhra Pradesh an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore we proceed with this appeal with available materials on record and with the assistance of Ld. CIT/DR. It is an admitted case that genuineness of the gift though doubted by the Assessing Officer, during the appellate proceedings, however he is satisfied with the evidences produced by the assessee by way of additional documents and satisfied with the genuineness of the gift by assessee's brother who is an NRI. The only remaining doubt of the Assessing Officer was that there is no justification in gifting such a huge sum without there being any big occasion in the assessee's family namely wedding, etc. It was held by the Co-ordinate Bench of the Tribunal in the case of Dr. Vempala Bala Manohar (cited supra) that lack of occasion cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh and Telangana in the case of Pendurthi Chandrasekhar (cited supra) held that unexplained credit addition u/s. 68 with respect to gift received by the assessee from his maternal aunt was to be deleted since accepting a gift from a relative, no occasion was to be proved. The relevant portion of the judgment is reproduced as under: "21. The further observation of the AO that the assessee appeared to have opened the bank account only for the purpose of receiving cash in the guise of a gift, is also flimsy. When the donor herself has given a confirmation letter clearly stating therein that she has transferred the amount of Rs.73,00,000/- to the account of the assessee and further declaring that she gave the said gift out of her natural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, it cannot be said that such a gift falls beyond "human probability" test as quite often applied by the Courts. Hence, it is not permissible for the AO to judge the conduct of the donor sitting in his arm chair. 7. Respectfully following the above judgments, the assessee received the gift from his own brother who is a Non-Resident from the year 1966. The allotment of shares were made under NRI quota to the assessee's brother in USA. Thus the source and genuineness is being proved beyond doubt, the assessee having received the above gifts from his brother, who is as per the Explanation 2 to Section 56(2)(v) of the Act, there need not be any "occasion" for receipt of gift by the assessee. 7.1. In our considered opinion, the whole approach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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