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TMI Blog2016 (6) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... the following substantial question of law which were framed while admitting the matter on 23.07.2007. "(1) Whether on the facts and in circumstances of the case the Tribunal was right in law in upholding the addition of Rs. 2,20,000/under Section 68 of the I.T.Act? (ii) Whether the Tribunal was right in law in requiring the appellant to prove the source of source to discharge the burden caste upon the appellant under Section 68 of the Act? (iii) Whether the Tribunal erred in not deleting the addition when the discretionary powers given in Section 68 were not exercised by the Assessing Officer when it was known to the Officer that the appellant was of 85 years of age and it would not be possible to hold this amount to be his income? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced on record the confirmation from each of person as well as from Mr. YN Rokade who has given cheques of Bank of Baroda, Sufi Baug Branch, Surat where Shri YN Rokade maintained savings bank account. The assessee has given further details and it was produced on record. In support of his submission he has relied upon the decision of this Court rendered in Tax Appeal No. 600 of 2005 to Tax Appeal No. 602 of 2005 vide judgement and order dated 19.11.2014 wherein it is held as under: "5. We have carefully considered the submissions made by learned advocates for both the sides. It is borne out from the records that a nonresident Indian Shri Chinubhai Gangadas Thakkar, permanently residing in Middlesex, U.K had given gift of Rs. 2 lakhs by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted an approach which, to say the least, is unwarranted in law. The Tribunal states that motivation for making the gift is not established. This finding is neither here nor there. The assessee was called upon to explain the credit entry found in its capital account. The assessee pointed out that it had received a gift from Shri Ramji Nanji. Shri Ramji Nanji appears before the assessing officer and confirms the fact of having made the gift. He produces evidence in support of the source from which the funds for making the gift are available with him. The gift is given by way of a bank draft. The revenue does not dispute any of these facts. In fact, the revenue commences the present proceedings on the day it makes gift tax assessment qua this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving gone through the statements of the donor as well as the assessee, it is apparent that despite minor discrepancies, the factum of the gift having been made has been accepted by the donor and in the circumstances, it cannot be stated that the credit entry in the capital account of the assessee did not reflect the true picture. The assessee had shown the same as gift received. The assessee tendered an explanation and nothing has been brought on record to even hold for a moment that the said explanation is not satisfactory. Though the same is stated as a conclusion, the reasoning for stating so is as to disbelieving source of source. In these circumstances, the impugned order of Tribunal cannot be sustained. [Emphasis Supplied] 5.1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Harishbhai Raojibhai Patel (supra) is concerned, this Court observing that the gift amount was paid through cheque upheld the Tribunal's order deleting the addition of cash credit made by the Assessing Officer. 5.3 So far as the decision cited by Mr. Parikh is concerned, in the case of Shri Anil Kumar (supra), the Delhi High Court held that mere identification of the donor and establishing movement of gift through banking channels, would not be sufficient to establish their genuineness. Similar view has been taken by Punjab & Haryana High Court in the case of Tirath Ram Gupta (supra). 6. Having gone through the decisions cited hereinabove coupled with the facts of the present case, we find that the facts in the present case are ak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. 7. We have heard learned advocates for the respective parties. Having gone through the decisions cited hereinabove coupled with the facts of the present case, we find that the facts in the present case are akin to the facts in the decision rendered by this Court in Tax Appeal No. 600 of 2005 to Tax Appeal No. 602 of 2005. We are bound by the aforesaid decision in Tax Appeal No. 600 of 2005 to Tax Appeal No. 602 of 2005, wherein it is held that the assessee cannot be asked to prove the source of source. Moreover, Gift Tax Act nowhere provides that a gift by somebody who is not creditworthy is not a gift. The Tribunal instead of addressing itself to the requirement of Section 68 of the Act, has adopted an approach which is unwarranted in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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