2010 (5) TMI 924 - AT - Income Tax

Addition u/s 68 - Gift received by the assessee from his brother in USA - Deemed unexplained income of partnership - creditworthiness of the donor - HELD THAT - We have considered the issue. Without going into the legalities of the addition made by the A.O. u/s 68, we are of the opinion that there was no case for treating the gift received by the assessee from his brother in USA as unexplained income of the assessee. As seen from the facts available on record the assessee s brother is also partner in various firms in India and he has substantial capital towards his credit in India. The assessee s brother is also filing returns in India on the profits from firms and other incomes earned in India. As seen from the bank account furnished the assessee has large amount of credit as opening balance which was ignored by the A.O. in coming to the conclusion that the credits are only to the extent of US 16,500/- whereas the gift was to the extent of US 35,000. The opening credit of the month itself was about US 27,466. In view of these facts, we are of the opinion that the donor has creditworthiness to gift the amount to his brother and accordingly, the order of the CIT(A) is upheld. In the result, appeal of the Revenue is dismissed.

Summary

Issues:
1. Unexplained cash credit under section 68 of the Income Tax Act.
2. Proof of identity, genuineness of transaction, creditworthiness, and details of the donor.
3. Applicability of section 56(2) in relation to the gift received.

Analysis:
1. The primary issue in this case revolves around a cash credit of Rs. 15,27,618/- treated as unexplained under section 68 of the Income Tax Act. The appellant, a partner in firms and proprietor of a business, received this amount as a gift from his brother residing in the USA, who is involved in the business of running malls. The Assessing Officer (A.O.) doubted the creditworthiness of the donor despite establishing the donor's identity. However, the CIT(A) deleted the addition after considering extensive documentation provided by the appellant, emphasizing the need to prove the identity, genuineness of the transaction, creditworthiness, and relevant details of the donor as per legal precedents.

2. The dispute further delves into the adequacy of evidence regarding the donor's creditworthiness. The A.O. contended that the appellant failed to substantiate the donor's creditworthiness, suggesting the submission of complete business details and bank accounts of the brother. Conversely, the appellant argued that the provisions of section 56(2) should apply instead of section 68, as the gift was from the appellant's brother, thereby excluding it from the purview of section 68. The CIT(A) upheld the deletion of the addition, emphasizing the appellant's comprehensive discharge of the onus to prove the legitimacy of the gift.

3. Additionally, the issue of the applicability of section 56(2) arises concerning the exclusion of the gift from the brother under this provision. The Tribunal, while refraining from delving into the legalities of section 68, affirmed that there was no basis to treat the gift as unexplained income. Notably, the appellant's brother's substantial capital in India, his partnership in various firms, and filing of returns in India supported the creditworthiness to gift the amount. The Tribunal upheld the CIT(A)'s decision, emphasizing the donor's financial standing and dismissing the Revenue's appeal.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to delete the addition of the cash credit under section 68, emphasizing the comprehensive discharge of the onus by the appellant to establish the legitimacy of the gift from his brother.