9911796707
TMI Blog2013 (5) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ALCUTTA HIGH COURT) wherein held that in the absence of any enquiry from the AO of the donors, the AO cannot make the addition in the hands of the assessee by treating the gifts received by assessee as unexplained. In favour of assessee. - I.T.A No. 1255/Kol/2011 - - - Dated:- 5-4-2013 - Shri K. K. Gupta, AM And Shri Mahavir Singh, JM,JJ. For the Appellant: Shri A. K. Tibrewal For the Respondent: Shri K. N. Jana, Sr. DR ORDER Per Shri Mahavir Singh, JM: This appeal by assessee is arising out of order of CIT(A)-XXX, Kolkata in Appeal No. 438/CIT(A)-XXX/Ward-46(4)/2007-08 dated 27.07.2011. Assessment was framed by ITO, Ward-46(4), Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as "the Act") for As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. A person whose annual drawing is Rs.30,594/- only having income of Rs.71900/- has hardly got any credibility to mak a gift of Rs.100000/- to a person who is much more wealthier than that of him. The donor is not related to the assessee. The identity of the person remains unverified in view of the fact that the A/R failed to produce the donors. Thus, the preliminary onus of the assesee has not been discharged." And in respect of Shri Kailash Kumar Khater the AO has observed as under: "It is observed that Mr. Kailash Kumar Khater of 32, Ezra Street, Kolkata-1, Room No. 755 (as per Sl. No.2) had filed its return of income for the assessment year 2005-06 showing income of Rs.128025/-. Further it is observed that Mr. Khater had shown ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dresses: "i) Joy Prakash More, C/o Shyama Prasad Poddar, Sardapally, Opposite Kali Mandir, P.O. Dist. Malda (West Bengal) ii) Kailash Kumar Khater, Gali No.3, 3rd floor, 193, Ramnagar, Krishnanagar, Delhi-51." 6. Finally, the Ld. counsel for the assessee relied on various case laws and one pertinent case law of Hon'ble Calcutta High Court in the case of CIT Vs. M/s. Dataware Private Limited, ITAT No.263 of 2011, GA No.2856 of 2011 dated 21.09.2011, wherein Hon'ble High Court has observed as under:- "In our opinion, in such circumstances, the Assessing officer of the assessee cannot take the burden of assessing the profit and loss account of the creditor when admittedly the creditor himself is an income tax assessee. After getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced to other parties, which was returned by these parties. Once this is the position and none of the authorities below have gone into the details and not doubted the genuineness of the transaction or the creditworthiness of these donors, in our view, now nothing before us remains after the decision of Hon'ble Calcutta High Court in the case of M/s. Dataware Private Limited (supra). Respectfully following the said decision in the case of M/s. Dataware Private Limited (supra), we are of the view that in the absence of any enquiry from the AO of the donors, the AO cannot make the addition in the hands of the assessee by treating the gifts received by assessee as unexplained. We delete the same and allow the appeal of assessee. 8. In the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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