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TMI Blog2007 (7) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 - M. M. KUMAR and AJAY KUMAR MITTAL JJ. Sanjiv Bansal for the Commissioner. None appeared for the assessee. JUDGMENT The judgment of the court was delivered by M. M. Kumar J.- The Revenue has approached this court by challenging the order dated December 16, 1997, passed by the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar (for brevity "the Tribunal"), in ITA No. 312(ASR)/1991 in respect of the assessment year 1989-90. The Revenue succeeded in persuading the Tribunal to refer the following question of law under section 256(1) of the Income-tax Act, 1961 (for brevity "the Act"), for the opinion of this court : "Whether, on the facts and circumstances of the case, the learned Income-tax Appellate Tribunal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s unexplained credit. However, the Tribunal upheld the view taken by the Commissioner Income-tax (Appeals) with regard to deleting the amount of Rs. 25,000 in respect of Sh. Jaswinder Singh. The view of the Tribunal is discernible from paragraph 6 of its order, which reads as under : "The gifts have not been accepted because there is no direct relationship between the donor and donee and there is no occasion for making gifts in question. The gifts have also been taken as genuine because the donee has not given gift to his own relations. The Assessing Officer and the Commissioner Income-tax (Appeals) has taken into account circumstantial evidence as well as preponderance evidence into consideration. However, the authorities below have not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and remittance in such an account could only be made from foreign earnings. The account has also been found to be genuine as per the findings recorded by the Assessing Officer which have been duly approved by the Tribunal. The identity of the donor stands established and the gift has been made by banking channel through cheque. For the aforementioned view, we place reliance on a judgment of the hon'ble the Supreme Court in the case of CIT v. Dr. R. S. Gupta [1987] 165 ITR 36. The Supreme Court after detailed review of various judgments of the High Courts expressed the opinion that each case must be decided on the facts of that case. It was observed that when the assessee has a credit account with a firm or with the family or with a banki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his account and crediting the account in the name of the donee. But in such cases, mere book entries would not suffice. The circumstances must be such as to make it clear that there were sufficient funds at the disposal of the donor by reason of which he could make the gift by such book entries. The firm, in which the donor may have an account, may or may not have sufficient cash balance but it must have sufficient provision for overdraft with the bank on the basis of which it could honour the instructions given by the assessee." 6. In the case of Ku. Sonia Bhatia v. State of U. P., AIR 1981 SC 1274, the hon'ble Supreme Court considered the expression "gift" in the light of section 122 of the Transfer of Property Act, 1882, holding tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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