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TMI Blog2010 (10) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... L, JJ. JUDGMENT Ajay Kumar Mittal J.- This appeal was admitted by this court for consideration of the following substantial question of law : "Whether the finding of the Tribunal in support of its conclusion that the gift received by the appellant is not genuine, is perverse being based on erroneous facts and considerations ?" 2. The facts necessary for adjudication as narrated in the appeal are that the appellant is an individual and engaged in the business of sale and purchase of jewellery items and received a gift of Rs. 1 lakh from Harcharan Singh during the previous year relevant to the assessment year in question. The assessee filed his return on July 26, 1994, declaring an income of Rs.93,180. During the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of the authorities below had recorded as under : "In the present case, the assessee had claimed that the gift received by him from Shri Harcharan Singh NRI was exempt under section 5 of Gift-tax Act. The Assessing Officer disallowed the claim of the assessee by stating that it was a compensatory receipt because there was no occasion to receive the gift from a stranger to make the gift genuine as per the ratio of the decision of the hon'ble High Court of Punjab and Haryana in the case of Lall Chand Kalra [1981] 22 CTR 135 (P H). The action of Assessing Officer had been confirmed by the learned Commissioner of Income-tax (Appeals). It is true that any amount given under natural love and affection without any consideration can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will become finance crises. 3. That in the year of 1993, due to his weak financial position I had gifted a sum of Rs. 1,00,000 (rupees one lakh only) without any interest to the said friend sole owner of the above said shop out of my NRI saving account. Verification Verified that the contents stated above in the aforesaid affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein (Sd.) . . . . . . . . . . . . . . . . Deponent Harcharan Singh Attested Notary, Santokh Singh Gill with Seal.' It is relevant to point out that the Assessing Officer passed the assessment order on March 10/17, 1997. Therefore, the affidavit had not been furnished before the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000 it seems that the amount had been deposited in the aforesaid bank account just to show that the alleged gift had been given to the assessee through banking channel. It is also noticed that in the affidavit, nowhere relationship with the assessee had been mentioned by Shri Harcharan Singh the alleged donor. The gift had been claimed to be given by DD on September 14, 1993, as appearing in the copy of the bank account of Shri Harcharan Singh. However, nothing had been brought on record that Shri Harcharan Singh was residing at village Charrian, P.O. Singh Bhawantpur at that point of time. It is also relevant to point out that the assessee had not produced the donor before the Assessing Officer and also not disclosed his address of Dubai. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sufficient to prove the genuineness of the gift. It is also true that the onus was on the assessee to establish the identity of the person making gift and also his capacity to make the gift. However, from the copy of the account, it cannot be established that the alleged donor was having the capacity to donate a sum of Rs. 1 lakh to the assessee particularly when only one entry of Rs. 1,10,000 had been transferred in the NRE account of Shri Harcharan Singh. The assessee had also not furnished a copy of his bank account to rebut the findings of the Assessing Officer that it was compensatory gift, which he could easily have proved by showing that there was no withdrawal in his bank account on the date or the nearby date of withdrawal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax (Appeals) had concluded that gift was not genuine. The Tribunal, inter alia, recorded the following reasons : "(a) there was no occasion for Harcharan Singh, NRI donor to have given gift to the assessee. (b) the affidavit furnished from the donor did not bear any date and had been attested on December 15, 1999 whereas assessment order had been passed on March 10/17, 1997. The same was never furnished before the Assessing Officer. There were certain contradiction in the affidavit which are : (i) there is no mention in the affidavit that the donor was nonresident and was residing abroad at the time of making gift, (ii) that the gift had been given on August 17, 1993 whereas in one of the paras there is reference in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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