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TMI Blog2012 (9) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned persons u/s 131, inspite of specific and written request made by appellant. 3. I.T.O. CIT appeal grossly erred in not enforcing the attendance of Mr. Deepak Jain, CA, who was named as the man of knowledge of facts. 4. That the CIT appeal erred in not adjudicating the legal issues raised by the applicant. 5. That the CIT (appeal) fails to appreciate that there was no evidence to disapprove the gift. 6. That CIT appeal erred in not appreciating the law laid down by Hon ble Delhi High Court on the issues involve. 7. That the CIT failed to appreciate that order of I.T.O. is based on presumption and guess work contrary to the documentary evidence submitted by applicant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted reassessment proceedings u/s 147 of the Act. The AO framed the assessment by making addition of ₹ 1 crore each in the hands of sh.Ramesh Chawla (HUF) and Ms. Kanika Chawla with this finding that the gifts received by the assessees were not genuine. The aggrieved assessees questioned the said action of the AO before the Ld. CIT (A) mainly on two grounds, firstly questioning the validity of re-opening u/s 147 of the Act and secondly, on the genuineness of the gifts. 6. The contention of the Ld. AR is that the Ld. CIT (A) has not adjudicated upon the legal issue raised before him regarding the validity of reopening. In support he referred ground no. 2 raise before the Ld. CIT (A) as -2. That the Ld. AO erred in fact and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se names appeared in the bank account of Mr. Harish Kumar, neither he enforced their attendants nor made any investigation in relation to the gifts given by Mr. Harish Kumar to Mr. Ramesh Chawla (HUF) or Ms. Kanika Chawla, the assessees herein. The Ld. AR pointed out further that the AO while issuing notice u/s 148 completely ignored that the IT Act has got amended w.e.f. A.Y. 2005-06 by Finance Act (No. 2) 2004, where the gift to the person other than relatives is taxable as income from other sources u/s 56 (2) (v). In the present case reopening is legally not correct because these gift were executed in August/ September 2003. It is not correct to say by the AO that Mr. Harish Kumar is not doing any business. He is very much engaged in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessable income in the hands of an assessee. Under these circumstances we do not find substance in the contention of the Ld. AR that the provisions u/s 147 of the Act were not validly invoked by the AO to acquire jurisdiction to frame assessment u/s 147 read with 143 (3) of the Act. The issue is thus decided against the assessee. The related ground nos. 1 to 4 are thus rejected. Issue no. -2 9. We have already discussed the relevant facts hereinabove in previous paragraph under issue no. 1. The contention of the Ld. AR remained that the assessees had received gift of ₹ 1 crore each from Mr. Harish Kumar through banking channels as per the details given in the reasons recorded by the Assessing Officer and he was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f typed version has been made available. He pointed out that the assessee was directed to produce Mr. Harish Kumar, donor. The assessees contacted Mr. Harish Kumar at his address and requested him to appear before the authority below but he turned down the request on the basis that he has been already assessed by his ITO and huge demand has been raised. He specifically mentioned that he has been taxed on all his bank transactions. He also asserted that he had already executed gift deeds and affidavits in support of gifts given by him to the assessees. He also informed the assessee that he had never stated that the assessees had given cash to him in lieu of the gifts. The Ld. AR submitted that the assessees have no power to force Mr. Harish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therein was the money of the assessees which came to him and in lieu thereof he had issued cheques of gift amount. The assessees were also not given opportunity to cross-examine Mr. Harish Kumar. It is an established proposition of law that statement of a person without affording opportunity to cross-examine him by the affected person cannot be relied upon and used against the said person. Thus keeping in mind the above discussed facts and in the absence of a positive evidence beyond doubt that the gifts amount were actually of the assessees, there was no reason to doubt the genuineness of the gifts in question. Besides, it also remained to examine by the AO that the donor had already paid tax on the amount gifted to the assessees. The Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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