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TMI Blog2004 (7) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. - - - - - Dated:- 22-7-2004 - Judge(s) : Y. R. MEENA., SHASHI KANT SHARMA. JUDGMENT This appeal is directed against the impugned order of the Tribunal, dated February 20, 2002, whereby the Tribunal has restored the addition of Rs. 1 lakh, gift received from Smt. Asha Devi Singhi. The relevant assessment year is 1987-88. The assessee has filed the return for the assessment year 1987-88 on October 6, 1987, declaring the income of Rs. 38,460. That original assessment was completed under section 143(1) accepting the income at Rs. 38,460. Thereafter the assessment has been reopened under section 143(2)(b) of the Income-tax Act, 1961. After reopening, the assessment has been completed under section 143(3) and Rs. 1 lakh has been added, which has been received by the assessee on account of gift from one Asha Devi Singhi. Smt. Asha Devi Singhi has given the gift of Rs. 1 lakh to the assessee on October 16, 1986. She has also given the declaration to this effect by declaration dated October 18, 1986. On October 18, 1986, she has also given the affidavit to this effect. The Income-tax Officer of Sikkim has given the certificate that Smt. Asha Devi Singhi is an assessee in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax (Appeals), vide order dated March 5, 1991, has set aside the assessment order and directed the Assessing Officer to re-examine the genuineness of the gift. The directions have been given in para. 7 of his order. The relevant para. 7 reads as under: "After due consideration, it appears that the addition so made deserves to be set aside inasmuch as proper enquiries having a bearing on the issue with a view to decide the matter in a clinching manner have not been caused while deriving the adverse inference. It may be seen that the appellant has already filed an affidavit from the donor, a copy of the gift declaration, etc., and in view of this, if at all the contents of the affidavits, the contents of the gift declaration, etc., was to be disbelieved or suspected, the proper course would have been to issue commission to the concerned with a view to ascertain the factual position in respect of the genuineness of the gift so received by the appellant. The donor was living at a distance of more than 500 km., and hence, it was impracticable for the appellant to produce her for the purpose of examination and this was also not practicable for the purpose of issuing any summons unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singhi is an income-tax assessee but she is not aware of the gift. Again, the matter came back to the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) gave the detailed reasons and finally held that there is no justification to treat the gift as not genuine. The relevant para, of the order of the Commissioner of Income-tax (Appeals) dated November 3, 1993, in the second round is 4.3, which reads as under: "After due consideration of the different facts involved grounds of appeal as also the report of the concerned authority as referred to earlier, it appears that the addition so made was without any proper basis and there is no iota of any evidence whatsoever to show that the source of gifts referred to earlier emanated from the appellant with a view to give it a colour of genuineness for the purpose of showing it as a gift from Smt. Asha Devi. It may be seen that while filing the return of income, the gift-deed, and affidavit was filed and there was a certificate from the Income-tax Officer of the State of Sikkim wherein he has categorically affirmed of Smt. Asha Devi carrying on the business under the name and style of Narpat Singh, Gangtok, and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g drafts but merely on this basis, it could not have been stated that the said application was signed by the appellant and particularly when the appellant has never visited Calcutta as contended for. Normally, as per the banking procedure, when the drafts are purchased by tendering cash at a place where no bank account is being operated by a person, the signatures in the application are given in the presence of the banking official and the appellant having no bank account at Calcutta and having never gone to Calcutta, there would not have been any possibility to move such an application. It is a day to day experience that the initials of different persons do tally but merely on this basis, it could not have been stated that the initial so given in the said application for buying the drafts at Calcutta represented the initials of the appellant. Apart from this, the appellant in the course of examination by the departmental authority also denied having moved such an application as also about the similarity in the signatures, it also requested for verification of the same with the signatures of the income-tax returns, etc., and also for taking the handwriting expert's opinion, but, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, the Tribunal has passed the main order in the case of Padam Prakash Khandaka, the other donee. He has not treated the gift as genuine holding that Smt. Asha Devi Singhi did not make the gift from her own funds, therefore, the gift is not genuine and the Commissioner of Income-tax (Appeals) has wrongly deleted the addition treating the gift as genuine. Considering the detailed reasons given by the Commissioner of Income-tax (Appeals), especially the fact that in spite of his direction, the donor has not been examined through a commissioner by the Assessing Officer, though Smt. Asha Devi Singhi has given the affidavit to this effect and also the declaration that she has given the gift of Rs. 1 lakh to the assessee. The assessee has also been examined in the second round by the Assessing Officer wherein in answer to question No. 1, the assessee submits that I know Smt. Asha Devi Singhi since long. The donor was impressed by his grandmother, who was a "Sadhvi" in Jain Dharam and donor also visited so many times to Jaipur and stayed with his family and gift has been given. On these admitted facts and the reasons given in detail by the Commissioner of Income-tax (Appeals), we se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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