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TMI Blog2016 (5) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs. 2,00,000/- received as gift during the F.Y. 2004- 05 as unexplained cash credit. The learned Commissioner of Income Tax (Appeals) failed to appreciate various facts as well as submissions made and the merits of the gift. The learned Commissioner of Income Tax (Appeals) has erred in treating the genuine gift as 'unexplained cash credit' without any justification when all the facts were before him and the donor was personally examined by AO. The learned Commissioner of Income Tax (Appeals) ought to have allowed the various contentions of Appellant under the facts and circumstances of the case. 2. Without prejudice to above, The learned Commissioner of Income Tax (Appeals)has erred in relying on provisions of S.56(2)(v) as men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us on the grounds mentioned herein above. Ground Nos. 1-2: 4. The ld. AR representing the assessee, submitted before us that the assessee had received gift of Rs. 2,00,000/- from Mr. Jitesh N. Mehta who is a senior member and is a very close family friend. During A.Y. 2005-06, the said Shri Jitesh N. Mehta had gifted an amount of Rs. 2,00,000/- vide Cheque No.132339 drawn on HDFC Bank Ltd, Ghatkopar Branch, Mumbai. In this respect, the ld. AR drew our attention to the copy of the confirmation letter from donor, donor's bank passbook/statement, Income Tax Return Copy etc. It was further submitted that the donor belongs to Gujrat and assessee is also from Gujrat and therefore being from the same native place and being Gujraties the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authorities. Ld. CIT(A) while dismissing the appeal filed by the assessee had made the following observations. "I have considered the AO's order as well as the appellants AR's submission. Having considered both, I find that inspite of the acquaintance and his relation with the donor which was developed in the last 15 years as claimed by the appellant, it nowhere makes to comply the necessity what has been intended to be complied for the exemption of gift for taxability as envisaged under Clause (v) of Explanation to the proviso of sub clause(v) of sub section-2 of section 56 of the Act. Hence, the appellant's all arguments lack on this score for getting exemption from taxability, being gift. Further to that, even I find that whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore on this basis ld. CIT(A) confirmed the additions made by the AO. 5.2 We have considered the submissions made by the assesse as well as the revenue and after considering the same we are of the considered view that the provision of section 56(2)(v) are not applicable in the present case. The provision of section 56(2)(v) are reproduced below: "The provisions of section 56 have been amended by inserting clause (v) in sub-section (2) by Finance Act, 2004 and the for the purpose of convenience of reference, the same is reproduced here under: "(v) where any sum of money exceeding twenty-five thousand rupees is received without consideration by an individual or Hindu undivided family from any person on or after the 1st day of Sept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, amendment provision of section 56(2)(v) are prospective in nature and not retrospective in nature and thus are applicable w.e.f. 1.09.04. Ld. CIT(A) has applied the amended provision with retrospective effect. This interpretation of CIT(A) is improper and bad in law and is thus unsustainable. 5.3 Further as per the facts of the present case, a sum of Rs. 2,00,000/- were delivered as gift by Jitesh Mehta to the assessee through account payee cheque and the said amount has been credited in the account of the assessee which means that the gift amount was transferred by Jitesh Mehta to the assessee and the same was also accepted by the assessee. There is no pre condition in section 122 or123 of Transfer of Property Act which define ..... X X X X Extracts X X X X X X X X Extracts X X X X
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