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TMI Blog2015 (11) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... lement in an explanation offered by the concerned assessee so as to shift the onus in the Revenue’s court. This case does not involve any such shifting of onus much less than the burden. Coupled with this fact that the donor in question is not in any way related to the assessee. And also there is no corresponding channel in the gift instrument linking assessee’s amount credit to that of donor’s account. We take into consideration all these facts and hold that the assessee has failed to prove the execution of a valid gift in question. - Decided against assessee. - IT(SS)A No. 577/Ahd/2010, IT(SS)A No. 579/Ahd/2010 - - - Dated:- 30-9-2015 - Shri Anil Chaturvedi, Accountant Member and Shri S. S. Godara, Judicial Member For The Revenue : Shri R.I. Patel, CIT-D.R. For The Assessee : Shri S.N. Soparkar, A.R. ORDER PER : S. S. GODARA, JUDICIAL MEMBER:- These two Revenue s appeals in case of different assessees for A.Y. 2004-05, arise from order of the CIT(A)-I, Ahmedabad dated 03-05-2010 in appeal nos. CIT(A)-I/CC.1(3)/217/2007-08 CIT(A)- I/CC.1(3)/222/2007-08 respectively, in proceedings under section 153A r.w.s.143(3) of the Income Tax Act, 1961; in short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be the donor s friend. He submitted that this donor always treated him like his father and wanted to do everything which a son would do. Absence of any blood relation between them was also emphasized. The assessee attributed purpose of this gift for purchasing any property on rent as source of income in old age. The very gift money was claimed to have been invested in acquiring a shop opposite Rajpath Club, S.G. Highway, Ahmedabad. Next came the assessee s reply regarding unexplained money. He contested the said reasons as not been based any inquiry conducted about the donor or from Dubai based exchange dealer. The Assessing Officer did not agree to any of these explanations. He opined in assessment order dated 28-12-2007 that assessee s explanation lacked creditworthiness being based on a self stated donor s affidavit and other material. He referred to assessee s statement recorded u/s. 131(1A) dated 20-03- 2006 as not knowing anything about the donor. The Assessing Officer thereafter took into account search proceedings allegedly revealing this family having received gross gift sums of ₹ 1.5 crores i.e. ₹ 45 lacs from Shri Sunil Gandhi and ₹ 1 crore from a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establishing a validity executed gift of movable properties are fully satisfied inasmuch as the donor gifted the amount voluntarily to the donee and has delivered the possession of the gifted property to the donee. - CIT Vs. Smt. Shyamo Bibi AIR 1967 All 82 relied on. (Unquote) (Quote) The AO has also highlighted the fact that there is no relationship between the donor and donee and, therefore, the genuineness of the transaction of gifts is not proved. Here 'it may be pointed out that a gift may be made to a stranger. Sec. 123 of Transfer of Property Act does not require that gift should be made to a relation only. Thus, the AO has taken an incorrect view of law. Relationship between the donor and the donee is not necessary and is not an essential condition of gift. The AO has highlighted another point which is regarding lack -of occasion for making gifts. He has observed that there was no occasions for the donors to make the gifts are normally given on many occasions like birthday, marriage anniversary and other events. However, gift may be given at any time as per the wishes of the donor and the donee. Thus, it cannot be said that if a gift is not made on particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adduced evidences with regard to identity, genuineness of the transactions and to prove creditworthiness, has filed affidavit of the donor, which is made by donor after search on 25-11.2006. In submission before AO, appellant explained relationship with the donor, occasion reason of gift. Having considered all such facts, evidences and explanations, I am of the opinion that the appellant has proved the receipt of the gifts from an identified party and creditworthiness is proved by filing affidavit and evidences of assets and bank accounts. As held by Delhi ITAT in the case of Ms. Mayawati vs. DCIT 113 TTJ 178, relationship between donor and donee is not a condition precedent for making a valid gift nor there any requirement that there should be some occasion to make a valid gift. The Assessing Officer alleged that the appellant has routed its own unexplained money as gift but was not able to bring single evidence on record of earning unaccounted incomes of the appellant, from where the unexplained money can be given. The appellant is an old person. Accordingly, on a consideration of the facts on records, the contentions made and the decisions cited, it is held that the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and grandchildrens received Gifts amounting to ₹ 1.45 Crores, from Mr. Sunil Gandhi and Arvidkumar of Dubai. Would you like to say anything about it? A:6 The gift received from Sunil Gandhi and Arvindkumar, who live is Dubai are in good relation with my Son Deepkumar Trivedi. The gifts received from them are shown in the IT returns. I do not know much about Sunil Gandhi and Arvindkumar, may be my son would be able to tell some this. The assessee contended in the course of hearing that his case is much better placed than that of Smt. Heena Sharma (supra). A fine line of distinction in the appellate orders confirming the CIT(A) s findings under challenge are maintained and reversed; is also sought to be drawn. The assessee pleads that wherever two views are possible the one taken by the lower appellate authority is to be confirmed. 9. Heard both sides. Records perused. We deem it proper to recapitulate the facts in brief. The assessee received a sum of ₹ 15 lacs from donor Mr. Gandhi by way of a demand draft. The Assessing Officer rejected this gift plea for want of creditworthiness. The same stands reversed in lower appellate order. There is no dispute ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o so. We are not impressed with this stand. Once the assessee had claimed a specific relation alike that of Kanha and Nand between donor and himself, it was for him to discharge at least initial onus. He has failed to do so. We deem it appropriate to observe at this stage that these income tax proceedings do not involve strict rules of evidence law. At the same time, there has to be some reasonable element in an explanation offered by the concerned assessee so as to shift the onus in the Revenue s court. This case does not involve any such shifting of onus much less than the burden. Coupled with this fact that the donor in question is not in any way related to the assessee. And also there is no corresponding channel in the gift instrument linking assessee s amount credit to that of donor s account. We take into consideration all these facts and hold that the assessee has failed to prove the execution of a valid gift in question. We quote case law of Sumati Dayal (supra) and observe that the assessee s version lacks creditworthiness so as to be accepted. 11. Now we come to the case law of Smt. Heena Sharma. It is evident to us that therein the assessee had produced sufficient r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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