9911796707
TMI Blog2010 (7) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... ANJAY ARORA Accountant Member J. N.VIJAYKUMARAN Judicial Member J. Assessee by Shri R. Krisna Iyer, CA Revenue by Dr. Babu Joseph, Sr. DR ORDER Per N.VIJAYAKUMARAN, J.M: This appeal is filed by the Revenue against the order of the CIT(Appeals)-I, Kochi, dated 15-1-2006 for the assessment year 2004-05. The assessee has filed Cross Objection. 2. These matters were disposed off by the Tribunal through its order dated 30-03-2009, wherein the Tribunal allowed the appeal of the Revenue and dismissed the Cross Objection of the assessee. Against the order of the Tribunal dated 30-03-2009, assessee went in appeal before the Hon ble jurisdictional High Court and their Lordships of the Hon ble High Court in ITA No.1690 of 2009 dated 05th October, 2009 dismissed the appeal. Thereafter, the assessee filed a Review Petition before the Hon ble High Court delivered their judgment on 18th February, 2010 in RP No.23 of 2010. For the sake of brevity, we reproduce hereunder the Review Order passed by the Hon ble High Court: Review Petition is filed by the appellant who filed the Appeal before us contending that the facts based on which the Tribunal decided the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties to the dispute and perused the materials available on record. The Assessing Officer found that in the bank account of the assessee with the Catholic Syrian Bank, MG Road (A/c.No.45720) there were credits of Rs.6016786 and 10167938 which is the proceeds of 126990$ and 219990$. When the assessee was asked to explain the source of these deposits, the assessee filed a letter stating as under: I was a non resident Indian till the end of 2003 and I was doing business in Dubai. Before returning to India, I have closed my business dealings at Dubai and transferred my entire amount from there to my account with Catholic Syrian Bank and the same was transferred to Alukkas Jewellery A/c. The amount is my own accumulated amount at Dubai. The admission of the assessee as above, vide his letter dated 06-12-2006 clearly establishes that the finding of the Assessing Officer that the assessee was a Resident as he satisfies one of the conditions for arriving the status of the assessee for this assessment year under appeal. We had also given a categorical finding that from the passport copies available in the assessee s paper book pages 1 to 16, it clearly showed that the emigrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Shri A.V. Joy to the effect that he has given the amounts on two occasions as gift and Certificate from Catholic Syrian Bank certifying that the money was sent to the assessee from the account of Alukkas Jewellery, Dubai, is on record. The amounts were sent on 9-4-2003 and 22-7-2003 by TT from Dubai to the Bank account of the assessee with Catholic Syrian Bank Ltd. Confirmation letter and certificate from Catholic Syrian Bank Ltd. have also been placed at pages 47-50 of the paper book. As such, assessee has explained the source, identity and capacity of the donor for remitting the amounts and also convincing explanation has been furnished regarding the nature and source with supporting evidences and therefore assessment u/s. 68 is incorrect and unwarranted and therefore deserves to be deleted. 7. On the other hand, the ld. Sr. D.R. submitted that the initial stand of the assessee was that it was his business money and not from any other source. Subsequently, the assessee changed his stand and pleaded gift that due to financial crisis of the assessee, his uncle Shri A.V. Joy offered gifts on two occasions and deposited the same in the bank and brought to India. Thus, the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at the same time, the law does not expect the impossible on the part of the tax payer. In other words, the law does not contemplate or require the performance of an impossible act. The maxim lex non cogit ad impossibilia-ratio of decision reported in 230 ITR 580 - CIT vs. Bedi and Company Pvt. Ltd. After lapse of time the assessee should not be placed upon the rack and called upon to explain not merely the origin and source but also origin of the origin and the source of source as well CIT vs. Metachem Industries - 245 ITR 160(MP). 10. The ld. first appellate authority has also found that assessee has received two gifts from his uncle Shri Joy Alukka, who is a Non-resident Indian. The assessee has filed confirmation letter from the donor confirming the gift during the course of assessment proceedings. Assessing Officer has accepted the fact that money has been sent from abroad and that too from Alukkas Jewellery, Dubai, which is a concern in which his uncle, Joy Alukka is associated. This is further supported by the certificate from the concerned bank. Considering these facts, the ld. CIT(Appeals) held that the addition is unwarranted. 11. The ld. counsel took the attempt t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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