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TMI Blog2017 (11) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has failed to discharge the onus regarding cogently proving the capacity of the donor to give the gift. Hence, we do not find any infirmity in the order of learned CIT-A. - Decided against assessee. - I.T.A. No.2334/Mum/2012 - - - Dated:- 1-11-2017 - SHRI SHAMIM YAHYA, AM AND SHRI AMARJIT SINGH, JM For The Appellant : Ms. Pranali Dixit For The Respondent : Shri Ram Tiwari ORDER Per Shamim Yahya, A. M.: This Appeal by the assessee is directed against the Order by the Commissioner of Income Tax (Appeals)-24, Mumbai ( CIT(A) for short) dated 20.01.2012 and pertains to the assessment year (A.Y.) 2007-08. 2. The grounds of appeal read as under: 1. The Learned Commissioner of Income Tax (Appeals) 24, Mumbai (hereinafter referred to as the Learned Commissioner ) erred in law in recording that the Appeal is instituted against the Order passed by ITO - 13(1)(3), u/s 143(3) of the I. T. Act, 1961 on 31/12/2010. 2. The Learned Commissioner erred in law in upholding the Order of the Assessing Officer of adding the Cash Gift amount of ₹ 11,00,000.00 given by the Assessee's Sister to him as his income. He ought not to have done so. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was a graduate and was working for a company during the period 17/12/2004 to 10/04/2008. None of the above children were filing their returns of income in view of their incomes being below taxable limit. 6. Considering the above, the ld. CIT(A) by a very reasoned order upheld the action of the assessing officer. The ld. CIT(A) held as under: 2.3 I have considered the facts of the case and the submissions made by the assessee. It is settled position of law that whenever cash is found credited in the books of the assessee, the onus is upon the assessee to prove the source of the same. For this purpose, the assessee is not only to prove the identity of the person from whom the money is claimed to have been received, the assessee is also required to prove the genuineness of the transaction as well as the creditworthiness of the person, in this case, the donor. It is clear from the facts on record that other than claiming that the money/cash had been gifted to him by his sister, the assessee has failed to prove the genuineness of the transaction and the creditworthiness of the donor. 3. As regards genuineness of the transaction, it is an undisputed fact that the alleged gift wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cash. Undisputably, the donor and her family members are not well off economically. It is unacceptable that they would be keeping money amounting to such a huge amount as ₹ 11 lakhs in the form of cash. 3.2 From the above, it is clear that the assessee has not been able to discharge the onus cast upon him with regard of the credit of money in the form of alleged gift and has failed to prove the genuineness of the transaction as well as the creditworthiness of the alleged donor. Although, the assessee has claimed that the gift was given by his sister, all facts and circumstances clearly show that no such gift, in fact, could have been given by his sister. Rather, the assessee has only tried to route his unaccounted money in his books by claiming that such money was a gift from his sister. 4. The affidavit and gift declaration filed by the donor would not be of any help to the assessee as these are only self-serving documents which is clear from the discussions hereinabove. 4.1 In case of Ashok Mahindru Sons (HUF) 173 Taxman 178 (Del), it has been held that if there is enough material to raise a strong suspicion regarding nature of transaction, the authorities can rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the assessee is upheld. The ground of appeal filed by the assessee is dismissed. 7. Against the above order, the assessee is in appeal before us. 8. We have heard both the counsel and perused the records. Learned counsel of the assessee submitted that the assessee has all the necessary documentary evidence. The authorities below have erred in not accepting the veracity of the same. He further submitted that no material has been brought on record that the said gift is false. He further referred to following case laws: 1. ITA Nos.6,8,9,10 and 39/Vizag/2015 in the case of Dr.Vempala Bala Manohar vs. ITO ; and 2. Hon ble Delhi High Court decision in the case of CIT vs. Sudhir Budhraja (in ITA No.59/2003 dated 13.10.2015). 9. Per Contra, the learned departmental representative submitted that it is abundantly clear that the said donor has no capacity to give the said gift. He submitted that in absence of the cogency of the capacity, mere declaration of gift cannot be accepted as sufficient. He further submitted that the bank statement of the donor was never produced before the authorities below. The income declared by the donor was very meagre. Hence, the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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