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TMI Blog2019 (2) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... and gift was given without any reason and occasion. [2] On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the addition made by the AO on account of gift of Rs. 5,00,00,000/- , by ignoring the facts that in spite of ample opportunity the assessee has never produced donor before AO for further verification. [3] On the facts and in the circumstances of the case, the Ld. CIT(A) ought to have upheld the order of the Assessing Officer. [4] It is, therefore, prayed that the order of the CIT (A) may be set aside and that of Assessing Officer may be restored to the above extent." The issues involved in these cases are identical and thus the same are heard analogously and are being disposed of by a common order. ITA No.128/Ahd/2016 is taken as the lead case. 2. A search was conducted u/s 132 of the Act on 29.09.2011 in the Nopany Group cases at Baroda including the case of the assessee. Accordingly, u/s 153A(a) of the Act a notice was issued to the assessee on 07.02.2012 directing him to furnish the return of income within 45 days thereof. In compliance to the same, the assessee filed his return of income on 27.07.2012 declaring total income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onor has gifted amount to the assessee from his income/capital. The donor is a high net worth individual. According to the assessee, the gifts were not liable to income tax in his hands under Income Tax Act as they were 'capital receipts'. Section 56(2)(vi) also exclude gifts from individuals from certain specified relatives including 'brother-in-law' from the purview of taxation. Further that, since the donor resides in Mumbai, it was not possible for him to come down to Baroda before the Assessing Officer within such short notice. It was categorically mentioned in the said reply that the donor was a regular tax payer and is regularly assessed to tax for these years. The copies of his assessment order were also attached along with the said reply before the Learned AO. It is relevant to mention that such document has also before the first appellate authority and before us as well being part of record annexed in the Paper Book. However, such plea of the assessee was not found acceptable by the Learned Assessing officer. Upon perusal of the evidence so placed before him by the assessee so as to prove the identity and creditworthiness of the donor he then added Rs. 5,00,00,000/- in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seen* ,other than trusts and his son, no other relative of Mr Sekhsariya has received a gift of substantial amount such as Mr Arvind Nopany during the years under consideration. So the question comes why only Mr Arvind Nopany has received such substantial amount of gift of Rs. 16 crore from Mr Narotam Sekhsariya when there was no specific reason to give the gift. This factor questions the genuineness of the transaction termed as gift e. It is important to highlight inconsistency of this transaction that the money as discussed herein above has been paid by Shri Sekhsariya who is husband of Smt Nalini who is allegedly sister of assessee. It is unheard of in this part of country that a brother who is financially very well shall accept a gift from his sister although converse of same is very common. Thus genuineness of this transaction as gift is not proved beyond doubt and lot remains to be proved, which assessee has preferred not to substantiate." ............ The above affidavit is assessee's own assertion that his father Lt. Shri Narayan Prasad Nopany was not having any legal heir other than the assessee and Smt. Chandadevi Nopany. However, it is common knowledge that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by his 'sister' Nalini and Mother Chandadevi, that why a factually wrong averment, though in good faith, was made in affidavit filed before Tehsildar by the appellant. The appellant also submitted the copy of land-mutation entry in consequence of the 'wrong affidavit' to highlight that even the authority before whom the affidavit was fileds has not considered the contents of the same sacrosanct. The mutation ultimately happened in three names: Chandradevi Nopany, Arvind Nopany and Nalini Sekhsaria. As per the AR, this also would additionally and strongly imply the factual by the Tehsildar that Naloi, being a daughter and heir to Narayan Prasad Nopany. is rightfully entitled to share in the land. Thus, the (wrong) averment in affidavit has not persuaded even the Tehsildar to conclude that Nalini is not daughter of Narayan Prasad Nopany or sister of the appellant. Therefore, 1 agree with the appellant that the averment of the appellant in the seized affidavit has been successfully repelled and explained by the appellant. Since the status of spouses een Nalini and Narottam Sekhsaria is not doubted or questioned by the AO, it needs, as a fact, to be recognized that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rottam Sekhsaria represent the explained and genuine gifts for respective years. 14. The last issue to be decided is whether Narottam Sekhsaria would qualify as "relative" within the meaning of s. 56(2)(vi) proviso clause a so as to make gift from him to the appellant exempt. It would be necessary to have a look at the provisions: Income from other sources. "56. (1) Income of every kind which is not to be excluded from the total income under this Act shall be chargeable to income-tax under the head "Income from other sources", if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E. (2) In particular, and without prejudice to the generality of the provisions of sub-section (I), the following incomes, shall be chargeable to income-tax under the head "Income from other sources", namely :- (i). ............ [(v) where any sum of money exceeding fifty thousand rupees is received without consideration by an individual or a Hindu undivided family from any person on or after the 1st day of April, 2006 23[but before the 1st day of October, 2009}, the whole of such sum : Provided that this clause shall not apply to any sum of money re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of the transaction though doubted by the Learned AO, the same has not been proved by any cogent document in favour of the revenue. Further that we find that the Learned AO acted beyond his jurisdiction by raising doubts regarding the relationship of the assessee and the donor ignoring the statutory provision in this regard as already been highlighted by the assessee before him in his written reply dated 04.02.2015. Without rebutting the submission made by the assessee the order of addition was made by the Learned AO. Further that, whether the gift so received by the assessee from his brother-inlaw is exempted from tax under section 56 of the Act has been considered on a wrong notion. Instead of relative as provided by the statute "blood relative" has been considered by the Learned AO and as a result whereof addition was made which is absolutely erroneous as rightly pointed out by the Learned CIT(A) as it reflects from the order impugned. Thus, in the absence of any infirmity in the order passed by the Learned CIT(A) we decline to interfere with the same. Hence, the Revenue's appeal is dismissed. 8. In the result, both the revenue's appeals in IT(SS)A No.128 & 129/Ahd/2016 are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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