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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 ..... and the Appellant filed the return indicating his undisclosed income as Rs.35,38,743/-. However, the reply submitted by the Appellant was not accepted by the Assessing Officer on the ground that evidences available on record prove otherwise. 2.1. The Appellant further averred that the amount of Rs.46,44,150/- received from Non-Resident Indian as gifts was not accepted by the Assessing Officer in respect of his undisclosed income for the reason that the Assessee had not established the genuineness of the NRI gifts. It was stated that pursuant to the earlier direction of the Tribunal dated 07.07.2005, the process 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 opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act, since each assessment is considered to be a separate and independent transaction and that, therefore, any finding recorded by any authority in respect of one year will not be binding in respect of subsequent years. However, we are of the opinion that having regard to the facts of the present case, the issue involved is more fundamental than the question of res judicata. Even assuming that this court "on the earlier occasion had not given any finding with regard to the nature of the gift, whether it was real or sham, and merely went on to consider the question of law embedded in the question 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place and time. In case the person from whom such documents are seized fails to offer suitable explanation, the material evidences collected during search can be taken as a piece of evidence against him so as to foist liability on that person. For the sake of convenience, Section 132(4) of the IT Act, 1961 is reproduced below: "4. The authorised officer may, during the course of the search or seizure, examine on oath any person who is fond to be in possession or control of any books of account, documents, money, bullion, jewellery to other valuable article or thing and any statement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ganapathy in (2012) 26 Taxmann.com 354 (SC), has advanced his argument, stating that the burden is on the assessee to show that the amount received by purported gifts from the donors was a gift in the legal sense. It was put forth by the respondent that when there was a proper appreciation of the facts by the Tribunal, then the finding of facts cannot be blindly reverted back so as to give a different interpretation, as held by the Supreme Court in the case of Commissioner of Income Tax vs. P.Mohanakala, reported in (2007) 161 Taxmann 169 (SC). The 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that such gifts are exempted from payment of tax and the addition of Rs.46,44,150/- by the respondent is illegal and unjustifiable. However, on the side of the respondent, it was expostulated, contending that most of the gifts were made by the donors residing outside Tamil Nadu and on enquiry with two donors, it came to light that on receipt of commission of Rs.1 lakh, gifts were arranged by them in favour of the assessee. In addition to their depositions, most of the relatives of the assessee had also reiterated the same version, which 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, du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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