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TMI Blog2012 (8) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of the cash creditors, genuineness of the transaction and if A.O. has not issued summons to the donors/cash creditors or commission to ITO, Bhiwani, for further verification of the fact the addition confirmed by the CIT(A) is not justified - addition made need to be deleted - in favour of assessee. - ITA No. 1279 & 1280/Ahd/2010 - - - Dated:- 22-6-2012 - Before Shri G.C.Gupta, and Shri T.R. Meena, JJ. Appellant: Shri K.C. Agrawal, A.R. Respondent: Shri Nimesh Yadav, Sr. D.R O R D E R PER : T.R.Meena, Accountant Member These are two appeals of assessee arise out of order of CIT(A)-II, Surat, order dated 21.12.2009 for assessment years 2005-06 2006-07. The effective grounds of appeals for both assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to produce these donors for verification but he could not produce the same for cross verification before the A.O. The A.O. relied upon Sajan Das Sons vst. CIT (24 SITC 21), Delhi High Court where Hon ble Delhi High Court held that mere identification of the donor and showing the moment of gift, through banking channel, is not succeed to prove the genuineness of the gift. As per A.O s. finding, the assessee could not prove the capacity of the donor to give such huge amount by way of the gift to the assessee nor the genuineness of the transaction. He further relied upon in case of Sumati Dayal s. CIT 214 ITR 801 (1995) (Supreme Court) and the decision of F. Private Ltd. vs. CIT 208 ITR 465 (Calcutta) and Ahmedabad ITAT Bench in case of Dhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law relied upon by the A.R. on page 6 7. The CIT(A) also relied on following decisions:- (i) CIT v. United Commercial Industrial Co. Pvt. Ltd. (1991) 187 ITR 596 (Calcutta) (ii) CIT v. Precision Finance Pvt. Ltd. (1994) 208 ITR 465 (Cal.) (iii) CIT v. Korlay Trading Co. Ltd. (1998) 232 ITR 820 (Cal.) (iv) CIT v. Bedi Co. Pvt. Ltd. (1998) 230 ITR 580 (S.C.) (v) Poonjabhai Vanmali Sons v. ITO (1989) 33 TTJ 91 (Ahd.), (vi) CIT vs Mohankala (2007) 291 ITR 278 (vii) Sumati Daal vs. Commissioner of Income Tax, Bangalore [1995 Supp. (2) SCC 453] (viii) Raeev Tandon vs. ACIT 294 ITR 488 (Del.) and confirmed the addition, held in paragraph nos. 6.9 6.10, which are reproduced as under:- 6.9 The Assessee and the AR have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idences for loan account i.e. acknowledgement of income tax return for A.Y. 05-06, copy of bank pass book, computation of income, capital account, balance sheet as on 31.03.2005, cash flow statement justifying the deposit of cash in bank and loan confirmation. The assessee vide letter dated 19.12.2008 for both the assessment years has requested to A.O. that donors are unwilling to come down Surat because it is far away, the cost of traveling and other hardship involved in coming Surat. They are beyond its control. The A.O. was requested to issue summons to the donors/cash creditors u/s 131 or commission to the A.O., Bhiwani for cross examination. The A.R. also filed a copy of ITAT, Ahmedabad Bench order dated 24.03.2010 in assessee s case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the assessee and also gone through the ITAT decision in assessee s case for A.Y. 04-05. All the donors are same which were shown in 04-05. The assessee filed addresses of the donors, copy of acknowledgement of return file, copy of capital account, copy of bank account, PAN No. and copy of the cash flow statement. The assessee was not able to produce the donors/cash creditors for cross examination as required by the A.O. because they are all belong to Bhiwani (Haryana) and had difficulty in coming to Surat. The assessee requested to issue summons to the donors/cash creditors or commission to ITO, Bhiwani, for cross examination. Therefore, the assessee has discharged his onus to prove the identity of the cash creditors, genuineness of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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