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TMI Blog2013 (4) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos.3030 & 3453/Mum/2008 dated 14.07.2009 for the A.Y. 2005-06/copy on record at PB pgs. 3-15). Both the additions being agitated per the impugned orders, i.e., the assessment of long term capital gains (LTCG) as unexplained credit under section 68 of the Act, as well as similarly of the gifts received by the assessees, i.e., u/s.68 of the Act, were also the subject matters of addition in the case of Shri Pinakin L. Shah (supra), which stood deleted by the tribunal, taking us through the relevant part of the said order. The said order, he would further continue, stands since confirmed by the Hon'ble High Court vide its order in ITA No.3380/Mum/2010 dated 18.01.2012 (PB pgs.1-2). The copy of the order by the tribunal in the case of Shri Mukesh Ratilal Marolia (in ITA No.1201/Mum/2005 dated 15.12.2005 for the A.Y. 2001-02), which stood followed by the tribunal in deciding the case of Shri Pinakin L. Shah (supra), as well as by the hon'ble high court confirming it, are also placed on record (PB pgs.16-31). The ld. CIT(A) has deleted the additions in both the cases under reference following the decision by the tribunal in the case of Shri Pinakin L. Shah (supra) in view of ide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the counsel for the Revenue (refer para 3 of the order by the hon'ble high court in the case of Shri Pinakin L. Shah (supra)). It is therefore clear that the order by the tribunal in the case of Shri Pinakin L. Shah (supra) could not be compared with or treated at par with that by it in the case of Mukesh R. Marolia (supra). We shall, therefore, proceed to examine the issue of the applicability of the order by the tribunal in the case of Shri Pinakin L. Shah (supra) in the instant cases independently, and decide the same by issuing specific findings in the matter, and separately for both the additions involved. 3.2 We take up the first issue, i.e., the treatment of the income returned by the assessees by way of 'capital gains' as unexplained credit u/s. 68, so that the same would stand to be assessed as 'income from other sources', on the premises that the same is only by way of accommodation entries, so arranged to avail of the tax benefits attending the income chargeable u/s. 45 of the Act. The matter is clearly factual, requiring an appreciation and examination of the facts and circumstances of the case. The ld. CIT(A), as apparent from a reading of his findings, relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be assessed as 'income from other sources'. The Revenue, however, conceding to the issue being covered by the decision in the case of Mukesh R. Marolia vs. Addl. CIT (supra) and in another case, the tribunal did not consider it necessary or relevant to dwell on the issue on merits and merely confirmed the findings of the first appellate authority on the ground that no infirmity was observed in the impugned order. It is this that prompted or led the hon'ble high court to draw a distinction between the two orders by the tribunal, on the later order, i.e., in the case of Shri Pinakin L. Shah (supra), being appealed against before it, stating of same as being based on a concession by the Revenue. We are, thus, unable to, in the absence of any positive findings of fact by the tribunal, hold that the said order by it concludes the issue under reference in the instant appeals on merits. The identity of the facts of that case with that in the instant case/s, would therefore be of little assistance to the assessee/s. No similar concession having been made by the ld. DR before us, i.e., as in the case of Shri Pinakin L. Shah (supra), the appeals would have decided on merits, and cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide para 4.2 of his order/s, has clarified of the facts of that case to be identical, so that the order by the tribunal in that case would have application in the instant cases as well, and this forms the basis of the assessee's case before us. The detail of the gift/s, which is the stated nature of the credits under reference, in the instant cases is as under: (Amt. in Rs.) From/To (Smt.) Manjulaben L. Shah Rinku G. Shah Sh. Maniklal Chimanlal Choksi 10 lacs 10 lacs Sh. Mukesh M. Choksi 10 lacs -- Smt. Meenaxi M. Choksi -- 10 lacs Sh. Sitaram Bhat -- 15 lacs The donors in the case of Sh. Pinakin L. Shah are: Sitaram Bhat (Rs. 10 lacs); Nayan Shah (Rs. 20 lacs) and S.N. Makharia (Rs. 20 lacs). As apparent, the only common donor in the case of that assessee, with that in the instant case/s, is Sh. Sitaram Bhat, covering one transaction out of the five that stand impugned. A credit being required to be proved under law by an assessee on the parameters of identity, creditworthiness of the creditor, and the genuineness of the transaction, how we wonder could the ld. CIT(A) have issued a finding as to identity of facts. The only positive presumption, if at all; the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same time, it may well be that the gift is donor driven - as a father, in the evening of his life, gifting his wealth by distributing it among his children, or dear ones. No special 'occasion' marks the same, except the realization that he, being in position to do so, would like to repay his gratitude to all who have helped him in his life, even if in terms of love and care; again being not necessarily uniform, and could be more benign to those who he perceives to be in greater need. Gift, it may be appreciated, is, its tax treatment apart, a fact of life, and cannot be considered or countenanced de hors it or the obtaining facts. Rather, it is only such facts that could lend credence to the assessee's explanation qua a gift, leading to a finding of it being genuine. On the other hand, it is the absence of such considerations, which may lead to the finding of the gift being not genuine. It is such incidences, which on being found wanting, led to the famous observations by the hon'ble high court of Madras in the case of Addl. CIT v. Ranganathan Chetty (C. R.) [1985] 153 ITR 456 (page 466): 'Look at the way the gifts were made. Not only were they made the other people's child ..... X X X X Extracts X X X X X X X X Extracts X X X X
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