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TMI Blog2012 (9) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee as unexplained cash credits u/s 68 of the Act, without appreciating the fact that- a) the aspect of mutual love and affection is missing between the Makharia Family (donors) and the donee as the donor hardly knows the assessee, her address and the activities of the assessee. b) creditworthiness and genuineness of transaction of Shri Harsh Kamani and Shri Ghanshyam Patel claimed to have given gift of Rs 10,00,000/- and Rs 50,000/-.-- respectively were not established; c) no details such as name. address etc. were given in respect of gift of Rs 1.97,925/-. 2) The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the A.O be restored. 3 The Assessing Officer noticed from the capital account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Delhi High Court in case of ACIT vs Rajiv Tandon reported in 294 ITR 219 and the decision of Hon'ble Supreme Court in case of Commissioner of Income-tax v. P. Mohanakala reported in 291 ITR 278 as well as decisions of this Tribunal and held that the amount of Rs. 19,46,681/- received by the assessee is her own income and accordingly, treated as income u/s 68 of the I.T Act. The assessee challenged the action of the Assessing Officer before Commissioner of Income Tax(Appeals). The ld Commissioner of Income Tax (Appeals) allowed the claim of the assessee and held that the treatment of gift as unexplained cash credit by the Assessing Officer is not justified. 4 Before us the ld DR has referred the assessment order and submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uine and not acceptable. One of the donors are having the same address as of the assessee; therefore, the assessee's claim of receipt of gifts is in fact an arranged transaction. The ld DR has heavily relied upon the order of Assessing Officer as well as the decisions as relied upon by the Assessing Officer. 4.2 On the other hand the learned A.R. of the assessee has submitted that all gifts were given by cheques and through banking channels; therefore, the creditworthiness of the donors cannot be doubted. He has further pointed out that the Assessing Officer summoned 8 persons out of the 22 donors who have appeared before the Assessing Officer and made the statement as examined by the Assessing Officer. The ld A.R. has referred the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI donors and therefore discharged her onus of establishing the identity, creditworthiness and genuineness of gifts. 4.4 The ld AR has referred the facts in the case of Sumati Dayal (supra) as relied upon by the Assessing Officer and submitted that in the said case the claim of the assessee was an impossible and therefore, it was found as not genuine being fraudulent sale and purchase of winning tickets. 4.5 The ld AR has also distinguished the facts in case of P. Mohanakala( supra) and submitted that in the said case there were material contradiction and discrepancies in the statements of the assessee and accordingly, the claim was found as not genuine. The ld AR has relied upon the following decisions i) Nemi Chand Kothari v. Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mrs Asha Goyal 100,000 100,000 9 05/05/2004 Devandnd Patel 197,925 197,925 10 28/12/2004 Mrs Raksha A Acharya USD 251 10,616 11 03/04/2004 Mr Ramand Ram Prasad 10,000 10,000 12 03/07/2004 Mr Aditya Saboo 1,100 1,100 13 03/07/2004 Mrs Punita Saboo 1,100 1,100 14 03/07/2004 Mr Amit Saboo 1,100 1,100 15 03/07/2004 Mrs Archana Saboo 1,100 1,100 16 07/07/2004 Mrs Sarla Seth 5,000 5,000 17 08/07/2004 Mrs Usha Didwania 2,100 2,100 18 08/07/2004 Mr Lalit Saboo 2,100 2,100 19 08/07/2004 Mr Kaushal Rajagria 1,100 1,100 20 08/07/2004 Mr Satary Narayan Didwania 2,100 2,100 21 08/07/2004 Mrs Bhagwati Saboo 2,100 2,100 22 08/07/2004 Mrs Sheela Punjabi 2,500 2,500 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the donor has stated that the gift was given due to the relationship of guru and devotee. 5.2 As regards the Mr Harsh K Kamani, Mr Ghanshyam A Patel, Mr Devanand Patel and Mrs Leena Davda, only confirmation letter, affidavit and copy of passport were filed except in case of Mr Devanand Patel where only an affidavit was filed. These donors are NRI and therefore could not appear before the Assessing Officer. However, to establish the claim of creditworthiness of the donor the bank statement of the donor is required to be produced. 5.3 Thus as far as the gifts given by the non-NRI donors the same has been duly proved by the assessee and there is no reason to doubt the same when the assessee has discharged its onus by producing the donors ..... X X X X Extracts X X X X X X X X Extracts X X X X
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