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TMI Blog2005 (1) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee regarding his closeness with the donor stands exposed and the same is discussed as under. From the discussed aspects of the case the assessee neither the statement of the assessee can be believed nor the gift of Rs. 1,00,000 given by the donor to the assessee can be treated as genuine. The arguments of learned AR for the assessee that since the other two gifts of Rs. 1 lakh given by the same donor to the two sons of the assessee has been accepted by the department as genuine, so in the case of the assessee, the genuineness of the gift from the same donor cannot be doubted also has no force because the CIT(A) deleted the addition in the case of two sons of the assessee on the reasoning that as they were majors so the gifts received by them cannot be added in the hands of the assessee but the deletion was not made treating the gifts in the hands of two sons of the assessee being genuine. Hence, this arguments of the learned AR of the assessee having no force, is rejected. Thus, the impugned gift of Rs. 1 lakh received by the assessee cannot be treated as genuine. The order of CIT(A) in this regard is set aside and that of Assessing Officer, in making the impugned addition of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known to me since long and he had come to India in May, 1996 and this visit was after a very long time. As it clear from the affidavit, gift is given out of natural love and affection and as regarding producing of Shri Darshan Singh is concerned, he is a permanent resident of Hongkong and as such as and when he shall come to India he shall be produced." 3. Thereafter the Assessing Officer recorded the statement of the assessee. Statement of Shri Mukhtiar Singh father of Shri Darshan Singh was recorded by the Inspector and by pointing out certain discrepancies in the statement of the assessee as well as the statement of the donor's father Shri Mukhtiar Singh, the Assessing Officer concluded that the assessee has no relationship whatsoever with the donor and in view of the decision of the Punjab & Haryana High Court in the case of Lal Chand Kalra v. CIT (23 CTR 135) (sic) made the addition of Rs. 1 lakh because in that decision it was held that gift to a stranger cannot be genuine gift. 4. Aggrieved with the order of the Assessing Officer, the assessee went in appeal before the CIT(A) and the CIT(A) after considering the submissions of the assessee and by placing reliance on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough banking channels. Learned DR further contended that the facts of the instant case of the assessee are identical to the facts of the case (supra) decided by the Chandigarh Bench of the ITAT. 6. On the other hand learned AR for the assessee submitted that in the instant case the gifts have been received from NRE account through banking channels by the assessee from his friend out of love and affection so the CIT(A) has rightly deleted the impugned addition in support of his contention, he placed reliance on CIT v. R.S. Sibal [2004] 135 Taxman 492 (Delhi) and unreported decisions of Amritsar Bench of the ITAT in ITA No. 619/97 dated 13-11-2003, ITA No. 553/97 and ITA No. 682/97 dated 28th July, 2003 wherein such circumstances the gifts received by the assessee were treated to be genuine by the Tribunal. 7. I have considered the rival contentions of both the parties, perused the record and carefully, gone through the orders of the tax authorities below as well as the case law relied upon by both the parties. On going through the order of the CIT(A), I am of the opinion that the CIT(A) has rightly observed in her order that the statement of the Inspector cannot be relied upon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he was giving an amount of Rs. 1 lakh as gift to the assessee out of love and affection. It means that the burden was upon the assessee to prove the facts in order to establish the genuineness of the gift. A gift cannot be treated to be genuine merely on the face value of the assertion of the assessee or the donor and can be only ascertained on considering the entire surrounding circumstances as well as on the basis of the statement of the donor/assessee, whichever is recorded by Assessing Officer. In the instant case admittedly there was no occasion for the donor for giving the gift to the assessee out of love and affection. Admittedly, the same donor, who is working as watchman in the foreign country, has gifted a sum of Rs. 1 lakh each to the assessee, his two sons and two other family members. It appears to be most improbable that a person serving as watchman in foreign country would gift a total amount of Rs. 5 lakhs to the assessee and his family members merely because he happens to be alleged friend of the assessee and more go because it does not conform with the human probabilities. 10. On analysing the statement of the assessee recorded by the Assessing Officer as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and find that the same are distinguishable on facts in R.S. Sibal's case (supra), the gift was treated as bogus by the Assessing Officer because the assessee failed to establish his relationship with the donor and in those facts their Lordship have held that once the appellate authority had recorded a categorical finding that by producing the copy of the gift deed, affidavits of the donor, extracts from their bank account and bank certificates, the assessee has discharged the onus which lay on him with regard to the genuineness of the gift and so no interference was required in the order of the appellate authorities. Whereas in the instant case, the Assessing Officer after categorically examining the statement of the Assessing Officer and other documentary evidence has come to the conclusion that the story narrated by the assessee having received the gifts from the channel out of love and affection being his close friend was not believable and so he held the gift received in the instant case of the assessee to be bogus. Hence, I find that the facts of the instant case of the assessee are thus distinguishable with that of the Delhi High Court decision in the case (supra) decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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