2015 (8) TMI 112 - AT - Income Tax

Unexplained gift/loans received - Gift received - explaining source or source - capacity to give gift/loans - Held that - It is clear from the material on record that donor as well as creditors could not show prima facie the source of funds out of which gift/loans were given. Added to this is the circumstance that on the date when the gift/loans were given, there were cash deposits made in the bank accounts. It is in these circumstances that the donor/creditors were called upon to show their capacity to give gift/loans. We are satisfied that the explanation given with regard to capacity of the donor/creditors is unsatisfactory. With regard to the argument of the ld. counsel for the assessee that the assessee has been called upon to explain the source of source, we are of the view that the said stand taken by the ld. counsel for the assessee is unsustainable. As already stated, the capacity of the creditor alone was questioned by the revenue authorities. This cannot be equated as calling upon the assessee to furnish source of source. The capacity of the creditors has not been prima facie established by the assessee. It is only when credible evidence is let in regarding capacity of the creditor that this argument of calling upon the assessee to explain source of source can be advanced. In this regard, the law laid down by the Hon ble Calcutta High Court in Shankar Industries (1978 (3) TMI 91 - CALCUTTA High Court ) clearly explains the legal position wherein held that capacity of the creditor has to be established by the assessee.- Decided against assessee.

Summary

Issues:
Treatment of gift/loans received by the assessee as unexplained cash credits u/s. 68 of the Act for assessment years 2004-05 & 2005-06.

Analysis:
1. Assessment Year 2004-05:
- Gift received from Mr. Tahir Ali - Rs. One lakh: Mr. Tahir Ali gave a gift of Rs. 1 lakh to the assessee, but the AO found discrepancies in Tahir Ali's bank account transactions and loan availed, leading to the conclusion that his creditworthiness was not established. The Tribunal upheld this decision.
- Loan received from Shivanna Siddapur - Rs. One lakh: The loan was given by Shivanna Siddapur, who claimed it was withdrawn from his PF account for his daughter's marriage. However, the timing of the withdrawal and marriage raised doubts, supporting the AO's decision to treat it as unexplained.
- Loan received from Irshad Ali Khan- Rs. 1.45 lakhs: Irshad Ali Khan gave a loan of Rs. 1.45 lakhs by cheque, but the source of cash deposited by him remained unexplained, leading to the loan being treated as unexplained.

2. Assessment Year 2005-06:
- Loan of Rs. 1 lakh taken by the assessee from Zafrullah Khan: The creditor, Zafrullah Khan, claimed the loan was sourced from his brother-in-law, but the AO found discrepancies in the assessee's bank transactions, leading to the conclusion that the explanation provided was false. The Tribunal confirmed this decision.

3. Legal Arguments:
- The assessee argued that once donors/creditors confirm the gifts/loans, the assessee should not be required to explain the source of these funds, citing legal precedents. However, the Revenue argued that under section 68 of the Act, the onus is on the assessee to establish the identity, creditworthiness of the creditor, and genuineness of the transaction.
- The Tribunal considered the lack of prima facie evidence regarding the capacity of the donors/creditors, emphasizing the need for them to establish their capacity to give gifts/loans. The Tribunal dismissed the assessee's appeal, stating that the explanations provided were unsatisfactory.

4. Conclusion:
- The Tribunal upheld the AO's decisions to treat the gifts/loans as unexplained cash credits due to inconsistencies in donor/creditor transactions and lack of evidence regarding their capacity to provide the funds. The Tribunal rejected the argument that the assessee should not be required to explain the source of the donors/creditors' funds, emphasizing the importance of establishing the credibility of the transactions. The appeals by the assessee were dismissed in both assessment years.