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TMI Blog2018 (12) TMI 1598X X X X Extracts X X X X X X X X Extracts X X X X ..... in United States, AO rightly concluded that the probability of a salaried nephew giving a gift to his uncle, who is an affluent business man is hard to believe. In cases, such as the present one preponderance of probability play a vital role. Thus, the theory of gift was not established by the assessee. The so called transfer through an NRO account was also self-serving because, the amount was transferred through telegraphic transfer and the source of transfer was not established as to how it was relatable to the donor - decided against assessee. - Tax Case (Appeal) No.1600 of 2008 - - - Dated:- 14-12-2018 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : Mr.T.Pramod Kumar Chopda For the Respondent : Mrs.R.Hemalatha, Senior Standing Counsel JUDGMENT T.S.SIVAGNANAM, J. This appeal, filed by the assessee under Section 260A of the Income-tax Act, 1961 ( the Act for brevity), is directed against the order passed by the Income-tax Appellate Tribunal Bench 'B' Chennai, ( the Tribunal for brevity) dated 29.02.2008, in I.T.A.No.1942/Mds/2007 for the assessment year 2004-05. 2. The above appeal was admitted, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee referred to various decisions in support of his contentions. The CIT(A) allowed the assessee's appeal on the ground that the genuineness of the transaction not being doubted and all three conditions having been satisfied, there is no reason to make an addition in respect of a gift by merely citing human probability and based on suspicion. The CIT(A) also referred to certain decisions to support his conclusion. The Revenue filed appeal before the Tribunal among other things contending that the claim of the assessee that he worked as a consultant for a company in UAE is a new theory and was not raised before the Assessing Officer, nor any evidence was produced and therefore, the finding of the CIT(A) is against Rule 46A of the Income Tax Rules, 1962 (hereinafter referred to as the Rules ). 7. Further, it was contended that the nature of employment, salary income certificate from the authorities concerned were not produced by the assessee or by the donor and even though the donor is identified, the capacity of the donor and the genuineness of the transactions were not established. 8. Further, the assessee when directed by the Assessing Officer to produce th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factual aspects referred above, has drawn the attention of this Court to the assessment order of the assessee's wife, which was completed under Section 143(3) of the Act for the assessment year 2004 -2005, by order dated 28.12.2006 wherein, the gift was not disputed. 13. It is further submitted that the remittance made will show the genuineness of the transaction and the factual aspects were not considered by the Tribunal, though it pointed out that the matter certainly requires investigation. The decision, which was relied on by the Tribunal especially the case of P.Mohanakala, (supra), is not applicable to the facts of the case, because in the said case, the identity of the donor was in doubt. 14. With regard to the contentions advanced by the Revenue that the CIT(A) contravened Section 46 by referring to an alleged income of the donor, which was not placed before Assessing Officer, the learned counsel relied on sub-Rule 4 of Rule 46A of the Rules and submitted that, if sufficient cause is shown for not producing the document before the Assessing Officer, the same can be produced before the CIT(A). 15. Referring to the order passed by the Tribunal in I.T.A. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer has to be given an opportunity to submit his report. This report is referred as the remand report from the Assessing Officer. This procedure has not been adhered to by the CIT(A) in the case on hand. Thus, on this ground, we would be well justified in confirming the order of the Tribunal thereby, interfering with the order passed by the CIT(A). The Assessing Officer addressed the donor and this communication remained unanswered either by the donor or by the assessee. The reliance placed on the order passed by the Tribunal in the appeal arising out of the penalty proceedings could have no impact on the present proceedings arising out of the regular assessment. Therefore, the assessee cannot fall back on the said order of the Tribunal. 20. The learned counsel for the appellant relied on the decisions in the case of Murlidhar Lahorimal (supra) and Rohini Builders, (supra) to explain the phraseology of Section 68, which was rendered after referring to the decision of the Apex Court in P.K.Noorjahan (supra). In the said decision, it was pointed out that the unsatisfactoriness of the explanation does not and need not automatically result in deeming amount cre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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