TMI Blog2009 (7) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... s who had disowned the making of gifts, were confronted and shown to be factually wrong, the same would have made no difference, as there was no natural love and affection and in its absence, the gifts were not genuine. – Addition confirmed. - 253 of 2009 - - - Dated:- 24-7-2009 - ADARSH KUMAR GOEL and DAYA CHAUDHARY, JJ. Mr. S.K. Mukhi, Advocate and Mr. Rajiv Sharma, Advocate for the appellant. JUDGMENT ADARSH KUMAR GOEL, J. - The assessee has preferred this appeal under Section 260A of the Income Tax Act, 1961 (for short, "the Act") against the order of Income Tax Appellate Tribunal, Delhi Bench "D" Delhi dated 24.10.2008 passed in ITA No. 4723(Del) of 2007 for the assessment year 2003-04, proposing to raise following subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the assessee to prove the identity, the genuineness of the transaction and creditworthiness of the donors. In the case before us, the assessee had only discharged the onus relating to identity of the donors. The onus of proving the creditworthiness of donors and the genuineness of the transactions had not been discharged. The ld. AR of the assessee has sought annulment of the order on the ground that the assessee was not allowed to confront the donors. We are unable to agree with the submissions made by the ld. AR of the assessee. Whatever material the assessing officer had gathered was put to the assessee to comment. Therefore, the statements of the donors denied to have made any gift had not been utilized against the assessee withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December. It is not understood as to how a gift deed can be executed on two different dates. From the above it is clear that all three gift deeds are defective and cannot be taken into consideration. Thus, the assessee has not discharged the initial onus even in respect of genuineness of transaction as the gift deeds are defective. The donors have also denied having any relationship or acquaintances with donee; even they do not know her. They have also denied to have given any gifts. Therefore, the genuineness of the transaction is not proved. The assessee has also not discharged the onus of proving the creditworthiness of the donors. When the donors have denied to have given any gifts it has to be logically concluded that it was the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onee and the donors in their statements recorded on oath under Section 131 have refused to have given any gift and, therefore, the genuineness of the transaction is not proved. The logical conclusion is that the assessee got her unaccounted money routed through the account of the alleged donors by way of cash deposits and issue of drafts for alleged gifts. Therefore, the alleged gifts have to be treated as undisclosed money of the assessee brought in the books of accounts. Even in the cases where donors have confirmed to have given gifts the Courts are applying the principle of human probabilities as held by Hon'ble Supreme Court in the case of Sumati Dayal v. CIT 214 ITR 801. The reliance placed by Ld. AR of the assessee on various de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Union of India 199 ITR 530 (SC) (ix) Heirs and LRs of Late Laxmanbhai S Patel Vs. CIT (2008) 12 DTR 108 (GUJ) (x) CIT Vs. Ms. Monica Oswal Ors. 267 ITR 308 (P H) (xi) Roopchand Manoj Kumar Vs. Commissioner of Income Tax (1999) 235 ITR 461 (GAU) 9. However, he wishes the Court to deal with the judgment in Sanjiv Kumar Jain's case (supra). 10. In the said judgment, the Assessing Officer had recorded statements of some persons to whose accounts the assessee had made credit entries but they were allowed to be cross-examined. This Court held that in absence of cross-examination, the order of assessment was vitiated. In para 9 of the judgment, it was observed as under:- "We find merit in the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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