9911796707
TMI Blog2016 (3) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ts from various persons filed by the assessee have wrongly been dismissed as fabrications. No inquiry was made by the A.O. nor was any material gathered to come to such a conclusion. The evidence was dismissed based on surmises and conjectures. Hence for all these reasons, we are of the considered opinion that the gift of ₹ 15 lakhs given by the assessee’s mother Smt.Chandravati Devi is a genuine gift and cannot be added u/s 68 of the Act. Coming to the gift received from the father Shri Prem Dutt Sharma, we find that he has been examined on oath and he has confirmed the same. The source of funds were explained as amount received from Sh.Ram Kumar Sharma on the execution of an agreement to sell. Mr.Ram Kumar Sharma confirmed this agreement on oath. The AO has not an iota of evidence to disbelieve these evidences or these statements recorded of oath. The A.O. rejected the evidence filed by the assessee based on surmises and conjectures. If the source of funds cannot be proved by the father or by Mr.Ram Kumar Sharma, the course of action should have been to make an addition in their hands. Sh.Sharma has filed his return of income for the A.Y. 2008-09. Thus in our view, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal without success. 3. Further aggrieved, the assessee filed this appeal before us, challenging both the reopening of the assessment u/s 147 of the Act, as well as the addition made u/s 68 of the Act on gift received by him from his mother and his father. 4. We have heard Sh.Rajan Bhatia, Ld.Counsel for the assessee and Sh.P.Dam Kanunjna, Ld.Sr.D.R. on behalf of the Revenue. 5. On a careful consideration of the facts and circumstances of the case, perusal of material placed on record, orders of lower authorities, as well as case laws cited, we hold as follows. 6. The Ld.Counsel for the assessee Mr. Rajan Bhatia submitted that : (a) The reopening is bad in law as the A.O. had time to issue notice u/s 143(2) of the Act on the return of income originally filed, up to December,2009, as the material based on which notice u/s 148 of the Act was issued, was in the knowledge and possession of the A.O. before December,2009. In other words his submissions that, though the entire information was with the A.O. before December, 2009, as the Investigation Wing had recorded the statement of oath from the assessee and others on 19th December,2008 and sent its report along with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation Wing had sent information to the A.O. on 19.12.2008 itself or immediately thereafter is only a presumption and it could have been that the information came into the possession of the A.O. only after 30.9.2009. He submitted that as no notice u/s 143(2) of the Act was given till 30.9.2009, the assessment u/s 143(3) of the Act could not be done and hence the propositions laid down by the Hon ble Delhi High Court in the case of CIT vs. Ved Co. 302 ITR 328 cannot be applied to the facts of the case. He submitted that tangible material came into the possession of the A.O. and only on application of mind the reasons were recorded and reopening was made and that there was nexus between the material and the belief of escapement. He relied on certain case laws in support of his contention. 8. On merits he relied on the order of the Ld.CIT(A) and submitted that the credit worthiness of Smt.Chandervati and Shri Prem Dutt Sharma were not proved and submitted that the source of gift could not be substantiated. He submitted that the affidavits of various persons were fabrications and that the mother was not produced before the A.O. for examination. In the case of the father he su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from the father Shri Prem Dutt Sharma, we find that he has been examined on oath and he has confirmed the same. The source of funds were explained as amount received from Sh.Ram Kumar Sharma on the execution of an agreement to sell. Mr.Ram Kumar Sharma confirmed this agreement on oath. The AO has not an iota of evidence to disbelieve these evidences or these statements recorded of oath. The A.O. rejected the evidence filed by the assessee based on surmises and conjectures. If the source of funds cannot be proved by the father or by Mr.Ram Kumar Sharma, the course of action should have been to make an addition in their hands. Sh.Sharma has filed his return of income for the A.Y. 2008-09. Thus in our view, the assessee discharged the burden of proof that lay on him and had proved the genuineness of these gifts. 11.1. Even otherwise the assessee being an engine driver in the Railways does not maintain books of accounts. Thus technically the addition cannot be made u/s 68 of the Act and entries in bank pass book cannot be considered as entry in the books of accounts. The Hon ble Bombay High Court in the case of CIT, Pune vs. Bhaichand H Gandhi 141 ITR 67, held as follows. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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