2022 (10) TMI 172 - HC - Income Tax

Undisclosed income of the assessee - Unexplained NRI gifts - onus to prove - search conducted at assessee residence under Section 132 - ITAT concluded NRI gifts were not genuine and confirming the addition - HELD THAT - It is no doubt true that only through search, the evidence has been collected by the respondent and the Assessee had not voluntarily disclosed on his own volition about the receipt of gifts from donors. The plea raised by the appellant that the nature of payment with regard to gifts was established through affidavits filed by donors and therefore, duty is cast upon the respondent to prove the onus, cannot be accepted for the simple reason that the Assessee had received gifts from 29 persons hailing from Kerala and there was no acceptable explanation as to the nature of relationship he had with those persons in the course of business transaction. Had the appellant given a convincing and believable explanation / reply to the respondent, the question of charging additional tax would not have arisen. That apart, no gifts would be extended to a person after receipt of commission by the donors and the exchange of gifts must be warmhearted and not out of compulsion or demand. The term 'gift' denotes any sum of money received without consideration can be termed as monetary gift , Specified movable properties received without consideration can be termed as gift of movable property , Specified movable properties received at a reduced price (i.e. for inadequate consideration), can be termed as movable property received for less than its fair market value , Immovable properties received without consideration can be termed as gift of immovable property , Immovable properties acquired at a reduced price (i.e. for inadequate consideration) can be termed as immovable property received for less than its stamp duty value . The case of the appellant / assessee regarding receipt of gifts does not fall in anyone of the category mentioned above and as such, the burden is automatically shifted to the assessee to rebut the same, as held by the Supreme Court in the case of CIT vs. P.Mohanakala 2007 (5) TMI 192 - SUPREME COURT which was relied upon by the respondent before the Tribunal. That apart, as per the exact dictionary meaning of the word 'gift' is, something voluntarily transferred by one person to another without compensation . A literal meaning of 'commission' is, 'money that one gets for selling something'. On enquiry with two donors, namely, P.I.Joy and David Mathew, by the respondent, the former had deposed about the arrangement of gifts to the assessee on receipt of commission, whereas the latter had stated that no gift was proffered by him to the assessee. Thus, it is very obvious that the purported gifts received by the assessee are not at all gifts in its real sense. Hence, we are of the view that the order of the Tribunal is perfectly valid and is liable to be upheld - Decided against assessee.

Summary

Issues Involved:
1. Violation of principles of natural justice.
2. Genuineness of NRI gifts.
3. Opportunity for cross-examination.
4. Burden of proof and assessment based on statements.

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellant argued that the assessment order violated the principles of natural justice, particularly the rule of audi alteram partem, as no opportunity was provided to cross-examine the witnesses whose statements were relied upon by the Department. The Tribunal upheld the assessment despite this contention, leading to the appeal before the High Court.

2. Genuineness of NRI Gifts:
The core issue was whether the NRI gifts amounting to Rs.46,44,150/- were genuine. The Assessing Officer and the Tribunal found these gifts to be sham transactions, primarily based on statements from the donors' relatives and the lack of credible evidence from the assessee. The appellant contended that the gifts were genuine and supported by affidavits from the donors, which should have been sufficient to prove their authenticity.

3. Opportunity for Cross-Examination:
The appellant claimed that the assessment was flawed as the assessee was not given an opportunity to cross-examine the donors or their relatives, whose statements were used to conclude that the gifts were not genuine. The Tribunal, however, did not find merit in this argument and upheld the assessment order.

4. Burden of Proof and Assessment Based on Statements:
The respondent argued that the assessee failed to produce the donors to substantiate the genuineness of the gifts. The documents provided by the assessee were deemed unreliable. The Tribunal and the High Court emphasized that the burden of proof lies with the assessee to demonstrate the legitimacy of the gifts, especially when the transactions appeared dubious. The High Court referenced multiple judgments, including CIT vs. P.Mohanakala, to support the view that the assessee must provide convincing evidence to rebut the presumption of undisclosed income.

Conclusion:
The High Court dismissed the appeal, affirming the Tribunal's decision. It held that the assessment order did not violate the principles of natural justice, as the assessee failed to provide credible evidence or produce the donors for cross-examination. The court found that the purported gifts were not genuine and upheld the addition of Rs.46,44,150/- as undisclosed income. The questions of law were answered against the appellant, and no costs were awarded.