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TMI Blog2016 (8) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... . The deposit of IMD bond to the extent of Rs. 68,66,378/- in the bank account of assessee were shown as gift received and the same were claimed as exempt under the provisions of Section 10(15)(iid)(c) of the Act. Assessing Officer during course of assessment proceedings asked the assessee to furnish necessary evidences to establish the genuineness of transactions, identity and creditworthiness of the donor. Assessing Officer also asked to give details of gift received and taxability of the same in view of the provisions of section 56 of the Act. 2.1 Assessing Officer stated that on the reverse bottom of IMD certificates there was memorandum of transfer, which was identical in all the certificates. As per such memorandum of transfer, the IMDs were transferred in the name of Shri Sunil Kumar K Gandhi on 30.08.2004 and were subsequently endorsed in the name of assessee on the next day i.e. 31.08.2004. Assessing Officer in order to ascertain the date of transfer to Shri Sunil Kumar K Gandhi and subsequently to the assessee, called information from the SBI, NRI branch Mumbai. As per the information received from the bank, the date of transfer of IMDs to Shri Sunil Kumar Gandhi were 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Appellate Authority, wherein various contentions were mainly raised with regard to IMDs are not any sum of money and further, regarding genuineness of creditor. Assessee raised various submissions and considering the same, CIT(A) confirmed the order of Assessing Officer. 2.3 Same has been opposed before us on behalf of assessee inter alia submitting that: i. Assessee has received IMD as gift of IMD of US$ 1,00,000/- on 31.08.2004 from Shri Sunil Kumar Khimchand Gandhi and not on 26.09.2005 as alleged by the Assessing Officer. ii. It was submitted that these IMDs were repaid / matured on 29.12.2005 and the assessee received the total amount of Rs. 68,66,378/- on maturity of IMDs comprising of principal amount of Rs. 45,00,911/- and interest amount of Rs. 23,65,467/- and that the said amount was claimed as non taxable by the assessee. iii. It was further submitted that the IMD certificate is not "any sum of money" and therefore it would not fall within the ambit of Section 56(2)(v) r.w.s. 2(24)(xiii) of the Act. iv. It was further contended that gifts are genuine as the identity of the donor i.e. Shri Sunil Kumar Khimchand Gandhi was proved through his Indian Passp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond doubt. The adverse facts as pointed out by the Accountant Member: (i) that the assessee or his father never made any gift of any amount to anybody; (ii) that the gift was not on any occasion or function; (iii) that the donor visited his house one or two times though never beyond the drawing room; (iv) that the donor was a person of low financial status having monthly income of less than Rs. 5,000/- and has shown withdrawals from his capital account less than Rs. 3,000/- per month; (v) that the donor has no house, no telephone number, no fixed deposit and not any other immovable assets; or that the original deposit by the donor of Rs. 1,25,000/- with 'B' Ltd. was not proved, were not so material to hold the gift was not a genuine one or sources thereof unsatisfactory so long as the immediate source of the gift was admittedly established to be from a third party. The donor had appeared in person before the Assessing Officer and confirmed the making of the gift and the reasons which persuaded him to make the gift, he being the friend of the assessee's father who helped him in past. Sec. 68 provides for charging the sum credited in assessee's books of account as incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bers. Thus, the occasion and reason for making a gift are also given by the donor, albeit, as of now these are no longer the requirements of a valid gift in view of recent decision of the Tribunal in Miss Mayawati's case, including the one of this very Bench. The source of gift has also been explained with the help of possible and feasible evidences which are available on the record. Against that are pitted the inferences of learned AO that this is not proved that is not proved and other whys and wherefores. In these circumstances, it would be too harsh and too illogical to decide against the assessee who has produced entire evidences desired, required and insisted on by learned AO and that would result in an illegality and injustice. We have to go by evidences available on the record. The possibilities and realities of life come only thereafter, and when the adverse possibilities are also found to be explained there should be an end of these "possible realities", otherwise no gift would be or can be treated as genuine, as the reality of life, in this era is that even a father would not give a gift to his son. Thus, we are bound by the positive evidences which are available on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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