9911796707
TMI Blog2015 (2) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... on appeal, has succeeded before the Income Tax Appellate Tribunal („Tribunal‟, for short) by the impugned order dated 5th December, 2002. 2. The present appeal was admitted for hearing vide order dated 13th January, 2004, on the following substantial question of law: "Whether the finding arrived at by the Tribunal is perverse in view of the material placed before the Tribunal and the lower authorities?" 3. The short question is whether the assessee had discharged onus and proved genuineness of the gift of Rs. 2,60,000/-. 4. A gift, as defined under Section 122 of the Transfer of Property Act, 1882, is transfer of property made voluntarily and without consideration by a donor to the donee. For a gift to be effective and valid there has to be acceptance of the gift by or on behalf of the donee. Gift of a movable property does not require registration and can be effected by mere delivery of actual or constructive possession. 5. In the assessment order, it is recorded that by order sheet entry dated 10th October, 1996, the assessee was asked to file evidence in support of her claim regarding receipt of gift. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly held:- "I have examined the contentions of the assessee‟s A.R. The assessee received a gift of Rs. 2,60,000/- from Shri R.K. Chattarpal Singh Jadeja who was an employee of AIR India working as its Regional Manager at Dubai. He was maintaining his bank a/c with Standard Chartered Bank Deira Branch, Dubai where from he had obtained a draft for Rs. 2,60,000/- which was gifted to the appellant. Corresponding sum has been debited his bank a/c. Since the donor is a Senior Executive of AIR India working as Regional Manager at Dubai and gift had been made by bank draft issued by Standard Chartered Bank, Deira Branch, Dubai the A.O. was not justified in holding that the identity and creditworthiness of the donar (sic, donor) could not be proved. I therefore, delete the addition made by the A.O." 7. By the impugned order, the Revenue had succeeded before the Tribunal wherein it was held that the assessee had failed to prove or establish a close relationship with the donor and had not been able to show the circumstances under which the gift was made. It was observed that the donor was a stranger to the donee. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a close relationship either by way of blood or friendship between the donor and the assessee. Noticeably, the letter dated 26th February, 1997 was lucid and called for straightforward and clear answers. The letter was met with impassive silence and reluctance, justifying the adverse assumption against the assessee. When an assessee does not produce evidence, tries to avoid and digress the issue before the Assessing Officer, it necessarily creates difficulties and prevents ascertainment of true and correct facts as the Assessing Officer is denied the advantage of scrutinising the factual assertion and claim of the assessee. In case where the assessee deliberately and intentionally fails to produce evidence, creates hurdles to any inquiry or investigation, an adverse view might be justified. It would be different, if the details and evidence were not available with the assessed or it was explained and justified why the details and evidence could not be furnished. Without being oblivious to the constraints of the assessee, an objective and fair approach and determination is required by the Assessing Officer. Thus, no assessee should be harassed and harried but any dishonest faç ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as evaded and refrained from making any deposition on oath. What repudiates and belies the assertion that the appellant and the donor were known to each other or were close family friends, is that this proposition was never asserted or propounded before the Assessing Officer, and even the order of the first appellate authority is quiet on the said aspect. The impugned order of the Tribunal records that the donor was a complete stranger to the donee and no evidence had been brought on record to show their relationship. 13. The Tribunal records the submission on behalf of the appellant that since the gift was received from an NRE account or a non-resident‟s account, it should be accepted without raising objection about the genuineness. The said submission holds no water and has to be compellingly rejected. The gift from an NRE or non-resident‟s account is not sacrosanct and unquestionable; the appellant must prove genuineness of the gift and the fact that it was made out of love and affection. It was the duty of the Assessing Officer to ask and the assessed inescapable obligation to truthfully answer. The Assessing Officer would necessarily have verified and cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essable nature. Whether explanation should be accepted or not is not to be examined factually but having regard to test of human probabilities and normal course of conduct. Reference can be made to CIT versus Durga Prasad More (1971) 82 ITR 540 (SC), CIT versus Daulat Ram Rawatmull, (1973) 87 ITR 349 (SC) and other cases referred to in CIT versus Nova Promoters and Finlease Private Limited, (2012) 342 ITR 169 (Del). In these cases, it has been observed that what is apparent must be considered real until it is shown that there are reasons to believe that the apparent is not real. Caution must be exercised on self-serving statements made in the documents as they are easy to make and rely upon in case an assessee wants to evade taxes. Proof is required and the assessing authorities should not put blinkers while looking at the documents before them. Surrounding circumstances are equally important." (emphasis supplied) 15. Learned counsel for the appellant has drawn our attention to two decisions of this Court in Commissioner of Income Tax, Delhi versus Mayawati (2011) 338 ITR 563 (Del) and Commissioner of Income Tax, Delhi versus R.S. Sibal [2004] 269 ITR 429 (Del). In Mayawati (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite material had been placed on record to show that the gifts were genuine. In Orient Enterprises (supra) the assertion of the Revenue that the findings of the Tribunal were perverse was rejected in view of the confirmatory certificates and statements of witnesses, etc. In Kulwant Rai (supra), it was held that no substantial question of law arose as the dispute was entirely factual. 16. The judgment in the case of Mayawati (supra), also refers to decisions of Division Bench of this Court in CIT versus Anil Kumar [2007] 292 ITR 552 (Del). This decision in favour of the Revenue observes that when there was nothing on record to show financial capacity of the donor, their creditworthiness and what kind of relationship the donors had with the assessee, addition would be justified. In Rajeev Tandon versus Assistant Commissioner of Income Tax [2007] 294 ITR 488 (Del), the genuineness of the gift was not accepted as the two donors had no connection with the assessee. This it was observed, was quite unusual and also unnatural. The Court held that it was incredible for a complete stranger to make gift of lacs of rupees only because the person wanted money to purchase a house. The surroundin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment was made but also corroborating and surrounding circumstances. This has always been the legal position, even prior to insertion of Section 68 of the Act. It was a well-accepted principle that income/cash credits which are not satisfactorily explained might be assessed as income. Even long prior to the introduction of Section 68 in the statute book, courts have held that where any amount was found credited in the books of the assessed in the previous year and the assessed offered no explanation about the nature and source thereof or the explanation offered was in the opinion of the Assessing Officer not satisfactory, the sums so credited could be charged to taxed as income of the assessed for the relevant previous year. ..." (emphasis supplied) 17. Referring to the facts of the present case, we find the order passed by the Tribunal is justified and correct. They were right in holding that the assessed has not been able to prove genuineness of the gift and also the factum that the transaction was out of love and affection, a sine qua non to establish a genuine gift. 18. In view of the aforesaid discussion, we accordingly answer the question of law against the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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