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TMI Blog2022 (10) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... gifts would be extended to a person after receipt of commission by the donors and the exchange of gifts must be warmhearted and not out of compulsion or demand. The term 'gift' denotes any sum of money received without consideration can be termed as monetary gift , Specified movable properties received without consideration can be termed as gift of movable property , Specified movable properties received at a reduced price (i.e. for inadequate consideration), can be termed as movable property received for less than its fair market value , Immovable properties received without consideration can be termed as gift of immovable property , Immovable properties acquired at a reduced price (i.e. for inadequate consideration) can be termed as immovable property received for less than its stamp duty value . The case of the appellant / assessee regarding receipt of gifts does not fall in anyone of the category mentioned above and as such, the burden is automatically shifted to the assessee to rebut the same, as held by the Supreme Court in the case of CIT vs. P.Mohanakala [ 2007 (5) TMI 192 - SUPREME COURT] which was relied upon by the respondent before the Tribunal. Tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess was redone by the Assessing Officer and the Authority, after considering the reply and arguments made by the Assessee, reconfirmed the addition of Rs.46,44,150/- as undisclosed income of the Assessee. 2.2. Challenging the said order, the Appellant had preferred an appeal before the Income Tax Appellate Tribunal and the Tribunal in its order impugned herein did not accept the explanation offered by the Assessee and confirmed the order of the Assessing Officer, against which the Appellant has filed the present Appeal before this Court on the ground that there was no opportunity afforded to the Assessee to cross examine the persons, whose depositions were relied upon by the Department for calculating the amount as undisclosed income. 3. When the Appeal was taken up for hearing at the threshold, it was admitted on the following substantial questions of law: 1. Whether the Income Tax Appellate order is right in law in confirming the assessment order which has been passed in total violation of principles of natural justice and which smacks of utter violation of rule of audi alteram partem? 2. Whether the Income Tax Appellate Tribunal is right in law in upholding the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n actually referred, to this court, still we are of the opinion that no Tribunal of fact has any right or jurisdiction to come to a conclusion entirely contrary to the one reached by another Bench of the same Tribunal on the identical facts . ii) Honda Siel Power Products Ltd., vs. CIT (2007) 295 ITR 466 (SC); 12. As stated above, in this case we are concerned with the application under Section 254(2) of the 1961 Act. As stated above, the expression rectification of mistake from the record occurs in Section 154. It also finds place in Section 254(2). The purpose behind enactment of Section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. 5. Per contra, learned counsel for the Respondent has vehemently contended that despite specific direction, the Assessee had not produced the donors of the gifts to substantiate his case and all the documents furnished by the Assessee were highly unreliable. It was also contended that in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income- tax Act, 1922 (11 of 1922 ), or under this Act. Explanation.- For the removal of doubts, it is hereby declared that the examination of any person under this sub- section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income- tax Act, 1922 (11 of 1922 ), or under this Act. (4A) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant portion of the judgment is extracted hereunder: 23. Relying on the decisions of this Court in Bejoy Gopal Mukherji Vs. Pratul Chandra Ghose [AIR 1953 SC 153] M/s Orient Distributors Vs. Bank of India Ltd. Ors. [ AIR 1979 SC 867], Shri Iyer, learned senior counsel contended that issue relating to the propriety of legal conclusion that could be drawn on basis of proved facts gives rise to a question of law and, therefore, the High Court is justified in interfering in the matter since the authorities below failed to draw a proper and logical inference from the proved facts. We are unable to persuade ourselves to accept the submission. The findings of fact arrived at by the authorities below are based on proper appreciation of the facts and the material available on record and surrounding circumstances. The doubtful nature of the transaction and the manner in which the sums were found credited in the books of accounts maintained by the assessee have been duly taken into consideration by the authorities below. The transactions though apparent were held to be not real one. May be the money came by way of bank cheques and paid through the process of banking transaction b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch created doubts in the mind of the respondent in respect of creditworthiness and genuineness of gifts received by the Assessee. Therefore, after proper analysis of books of accounts and other documents, the gifts were subjected to liability of tax, as the appellant had failed to establish his onus. 9. It is no doubt true that only through search, the evidence has been collected by the respondent and the Assessee had not voluntarily disclosed on his own volition about the receipt of gifts from donors. The plea raised by the appellant that the nature of payment with regard to gifts was established through affidavits filed by donors and therefore, duty is cast upon the respondent to prove the onus, cannot be accepted for the simple reason that the Assessee had received gifts from 29 persons hailing from Kerala and there was no acceptable explanation as to the nature of relationship he had with those persons in the course of business transaction. Had the appellant given a convincing and believable explanation / reply to the respondent, the question of charging additional tax would not have arisen. That apart, no gifts would be extended to a person after receipt of commission by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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