9911796707
TMI Blog2003 (7) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... our. The grounds of appeal taken in this appeal were with regard to the point that the gifts were accepted suddenly without any occasion and without love affection. These are not the requirements of valid gift. Therefore, the grounds are infructuous. The Assessing Officer has not brought any evidence on record, except merely observing certain facts without any evidence, therefore, the Assessing Officer has not rebutted any evidence of the assessee in this regard. Merely the jurisdictional Assessing Officer has not sent the confirmation report, would not be a ground to reject the explanation of the assessee or to take any adverse presumption. The Assessing Officer did nothing thereafter in obtaining the report from the concerned Assessing Officer of the donors. Therefore, the CIT(A) was justified in allowing the appeal of the assessee. We uphold the finding and dismiss the appeal of the Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... red to all these documents to the different I.T.Os. of Calcutta having jurisdiction over the donors for verification, but the Assessing Officer did not receive any reply from the ITO concerned. The Assessing Officer in view of these facts, was of the view that for a genuine gift, certain conditions have to be satisfied namely relationship between the donor and donee, their acquaintance, their financial capacity and their confirmation alongwith the identity. The Assessing Officer after considering the evidence and material on record, considered each case of the gift separately and was of the view briefly that the gifts are not genuine and accordingly made addition in the hands of the assessee, in respect of the gift amount of all the ten persons. The Assessing Officer has recorded brief reasons for rejecting those gifts, which have been mentioned in the assessment order. The matter was carried to the CIT(A) and it was submitted that all the donors confirmed making of the gifts, filed gift-tax returns, which have been accepted by different Income-tax Officers at Calcutta. It was submitted that all the donors filed affidavits confirming the gifts made through demand drafts and all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case was again taken up on 16th January, 2002 and the ld. D.R. was also directed to produce the assessment record. Ultimately, this case was adjourned to 13th March, 2002, 23rd April, 2002, 26-6-2002, 25-9-2002, 12-12-2002, 20-1-2003, 13-3-2003, but the assessment record was not produced. This matter was taken up on 26-5-2003 and the ld. D.R. Shri S. S. Prasad assured us that he would appear in this case on next date of hearing with the assessment record and would also produce the other papers as directed without any failure. On his undertaking the case was finally adjourned to 3rd June, 2003. Hence this matter was taken up on 3rd June, 2003. Shri S.S. Prasad did not appear with the assessment record and the required papers. The ld. D.R. Shri Ashok Kumar stated that the office of the D.R. has written many letters to the Assessing Officer concerned to produce the assessment record but there is no compliance by the Assessing Officer. These facts clearly show that the department does not want to produce the assessment record and the required papers deliberately. We take adverse presumption against the Department. Had the Department produced the assessment record and the required pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the cases, the evidence of gift like declaration/affidavit, gift-tax challan and copy of the gift-tax returns and income-tax returns were filed. The Assessing Officer referred all these documents to the concerned Assessing Officer at Calcutta for verification, but the assessment order shows that the Assessing Officer has not received any reply, therefore, in such circumstances, the assessee cannot be said to be in default in any of the circumstances. All the evidences of the gift have been produced before the Assessing Officer. The assessment record further shows that the Assessing Officer has given certain brief reasons which are not connected with the gifts in question. The Assessing Officer observed that for a valid gift relationship is required, occasions are required and the identity and financial status of the donor is to be proved. The record shows that the assessee has proved the identity of all the donors and the financial status of these persons. All the gifts are made through Bank Draft, which have been shown in the income-tax return and gift tax return. The assessee, therefore, had been able to discharge his initial onus to prove the genuineness of the gift in the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be drawn against the assessee or the donor in the matter. The findings of the Assessing Officer were rightly set aside by the CIT(A) and more particularly in view of the above discussion in this order. The Hon';ble Allahabad High Court in the matter of Shamshuddin Manzoor Haque (supra) held as under: - "From the facts that the donors had filed gift-tax returns, that they have been assessed to gift-tax and that varying amounts have been passed on by way of cheques to two partners of the assessee-firm from the Bombay parties and the Commissioner having taken no steps to undo the gift-tax assessments, we are of the considered view that no question of law arises from the Tribunal';s order. The gift-tax assessments having been made on the donors and that fact having not been controverted by the Commissioner and the latter having failed to take any steps to disturb these assessments made on the donors, it is amply clear that the genuineness of the gifts in the hands of the donors has not been doubted. That being so, the fact that the amounts credited in the capital account of the partners had flowed from the donors cannot be doubted and, therefore, no question of law arises ..... X X X X Extracts X X X X X X X X Extracts X X X X
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