Supriya Paul, Burdwan V. ITO, 2(3), Asansol, Asansol

ITA 107/KOL/2014

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3247 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R N RAM
• Keywords: Unexplained investment; Gift; Additional evidence; Onus to prove
• Section: 143(3); 142(1); 133(6); 147; 131; 148

Judgement Text

I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA SMC BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER I.T.A. NO. 107/KOL/ 2014 ASSESSMENT YEAR: 2005-2006 SHRI SUPRIYA PAUL,................................. ......................................APPELLANT C/O. S.K. PAUL, BEHIND BASAK BARRAK, SREEPALLY, ASANSOL, DIST. BURDWAN-713 304 [PAN : APZPP 1416 R] -VS.- INCOME TAX OFFICER,................................ ...............................RESPONDENT WARD-2(3), ASANSOL, ASANSOL-713 304 APPEARANCES BY: SHRI R.N. RAM, A.R., FOR THE ASSESSEE SMT. SARBARI MUKJHERJEE, JCIT, SR. D.R., FOR THE DE PARTMENT DATE OF CONCLUDING THE HEARING : JANUARY 04, 2016 DATE OF PRONOUNCING THE ORDER : JANUARY 29, 2016 O R D E R THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), ASANSO L DATED 03.12.2013 FOR THE ASSESSMENT YEAR 2005-06. 2. GROUND NOS. 1 TO 4 INVOLVE A COMMON ISSUE RELATI NG TO THE ADDITION OF RS.2,87,040/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) BY NOT ACCEPTING THE EXPLANATION OF TH E ASSESSEE AS REGARDS THE AVAILABILITY OF OPENING CASH BALANCE. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO HAD NOT FILED HIS RETURN OF INCOME IN THE REGULAR COURSE FOR THE YEAR UNDER CONSIDERATION. ON THE BASIS OF AIR DATA, NOTICE UND ER SECTION 142(1) WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 26.07.2007 ASKING TO I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 2 OF 8 FILE HIS RETURN OF INCOME. THERE WERE, HOWEVER, NO IMMEDIATE RESPONSE TO THE SAID NOTICE BY THE ASSESSEE AND THE RETURN OF I NCOME WAS FINALLY FILED BY HIM ON 01.10.2007 DECLARING TOTAL INCOME OF RS.9 2,814/-. THEREAFTER A NOTICE UNDER SECTION 148 WAS ISSUED BY THE ASSESSIN G OFFICER ON 15.01.2008, IN RESPONSE TO WHICH A REPLY WAS FILED BY THE ASSESSEE STATING THAT THE RETURN ALREADY FILED BY HIM ON 01.10.2007 MAY BE TREATED AS THE RETURN IN RESPONSE TO NOTICE UNDER SECTION 148. DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPO N BY THE ASSESSING OFFICER TO EXPLAIN THE SOURCE OF INVESTMENT FOUND T O BE MADE BY HIM DURING THE YEAR UNDER CONSIDERATION IN PRINCIPLE MU TUAL FUND AND ICICI PRUDENTIAL MUTUAL FUND AMOUNTING TO RS.1,60,000/- A ND RS.5,00,000/- RESPECTIVELY. ONE OF THE SOURCES EXPLAINED BY THE A SSESSEE IN THIS REGARD WAS THE AVAILABILITY OF OPENING CASH BALANCE OF RS. 2,87,040/-, WHICH WAS CLAIMED TO BE GENERATED FROM THE AMOUNT OF RS.3,42, 600/- RECEIVED IN THE EARLIER YEAR ON THE DEATH OF HIS GRANDFATHER ON 12. 07.2003 AS WELL AS GIFTS OF RS.50,000/- AND RS.25,000/- CLAIMED TO BE RECEIV ED FROM RUPA BIGHARIA AND SHYAM SUNDER THAKUR RESPECTIVELY. THE EXPLANATI ON OF THE ASSESSEE IN RESPECT OF THIS SOURCE WAS EXAMINED BY THE ASSES SING OFFICER ON THE BASIS OF DETAILS AND DOCUMENTS FURNISHED BY THE ASS ESSEE AND THE SAME WAS FOUND TO BE NOT ACCEPTABLE BY HIM FOR THE FOLLO WING REASONS GIVEN IN THE ASSESSMENT ORDER:- THE ASSESSEE HAS SHOWN OPENING CASH BALANCE OF RS.2,87,040/- AS ON 01.04.2004 WHICH HAS BEEN BROUG HT FORWARD HORN THE PRECEDING YEAR BY SHOWING GIFT OF RS.50,000/- FROM RUPA BIGHARIA AND RS.25,000/- FROM SHYAM SUNDAR THAKUR AND AMOUNT OF RS.3,42,600/- RECEIVED ON THE DEATH OF HIS GRANDFATHER ON 12.07.2003. OUT OF THIS HE HAD INVESTED RS.L,40,000/- IN MUTUAL FUND AND THE BALAN CE FIGURE OF RS.2,87,040/- HAS BEEN SHOWN AS CLOSING CASH BAL ANCE AS AT 31 ST MARCH 2004 AND OPENING CASH BALANCE AS ON 01.04.20 04. THE ASSESSEE WAS ASKED TO PRODUCE THE EVIDENCE OF MONEY RECEIVED ON THE DEATH OF HIS GRANDFATHER. IN HIS REPLY DATED 12.12.2008 THE A/R OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS RECEIVED A GIFT OF RS.3,42,600/- IN CA SH DURING 2003-04 FROM HIS GRANDFATHER AND THIS AMOUNT WAS RE CEIVED BY THE ASSESSEE AS LEGAL HEIR ON DEATH OF HIS GRAND FATHER, SHRI BINAY KRISHNA PAL ON 1207.2003. HE HAS ALSO ENCLOSE D A COPY OF SO CALLED MEMORANDUM OF UNDERSTANDING SIGNED BY ALL THE I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 3 OF 8 LEGAL HEIRS. THE DOCUMENT CLAIMED TO BE THE MEMORAN DUM OF UNDERSTANDING IS NOTHING BUT THREE PIECES OF PAPER SIGNED BY FOUR PERSONS WHICH HAS NO LEGAL STANDING. FURTHER, THE CONSENT OF WIFE OF LATE SHRI BINAY KRISHNA PAL HAS NOT BEEN TAKEN WHILE PREPARING THE SO CALLED MEMORANDUM OF UNDERST ANDING AS IT IS NOT SIGNED BY HIS WIFE. THE A/R OF THE ASS ESSEE DID NOT EXPLAIN ANYTHING ABOUT THE SOURCE OF INCOME OF HIS GRANDFATHER AND IT IS ALSO NOT PRACTICAL THAT A PER SON WOULD HAVE KEPT SO MUCH AMOUNT OF CASH IN HIS HOUSE. REGARDING THE OTHER TWO GIFT ARR AUNT SHOWN TO BE TAKEN FROM RUPA BIGHARIA AND SHYAM SUNDER THAKUR, N OTICE U/S. 133(6) OF THE I.T. ACT, 1961 AND SUMMONS U/S. 131 WERE ISSUED TO BOTH THE PERSONS. BUT NEITHER THE ABOVE T WO PERSON APPEARED NOR ANY REPLY FROM THEM HAVE BEEN RECEIVED FROM THEM TILL DATE AND THE ASSESSEE HAS ALSO FAILED TO PRODUCE THEM BEFORE THE UNDERSIGNED TO PROVE ITS GENUINENESS. IN SPECTOR'S ENQUIRY ALSO REVEALED THAT NO SUCH PERSON EXISTS AT THE GIVEN ADDRESSES. ONUS TO PROVE THE GENUINENESS AND CREDITWORTHINESS OF THE ABOVE TRANSACTIONS LIED ON THE ASSESSEE, WHICH HE HAS FAILED TO DISCHARGE. IN THE ABSENCE OF ANY CONCRETE EVIDENCE IT IS CONCLUDED THAT THE ASSESSEE HAS TRIED TO GIVE HI S UNDISCLOSED INCOME A COLOR OF GIFT AND TRIED TO EXPLAIN HIS SOU RCE OF MONEY INVESTED DURING THE F.Y. 2004-05 BY SHOWING OPENING CASH BALANCE BROUGHT FORWARD FROM THE PRECEDING YEAR. HE NCE, THE CLAIM OF OPENING CASH BALANCE OF RS.2,87,040/- BY T HE ASSESSEE IS NOT ACCEPTABLE AND IT IS NOTHING BUT THE INCOME FROM SOME UNDISCLOSED SOURCE OF THE ASSESSMENT YEAR UNDER CONSIDERATION. FOR THE REASONS GIVEN ABOVE, THE ADDITION OF RS.2,8 7,040/- WAS MADE BY THE ASSESSING OFFICER TO THE TOTAL INCOME OF THE AS SESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) READ WITH SECTION 147 VIDE AN ORDER DATED 15.12.2008. 4. AGAINST THE ORDER OF THE ASSESSING OFFICER PASSE D UNDER SECTION 143(3) READ WITH SECTION 147, AN APPEAL WAS PREFERR ED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND THE ADDITIONAL EVID ENCE IN THE FORM OF AFFIDAVIT OF SMT. DEVDASI PAUL DATED 19.11.2009 AND AGRICULTURAL INCOME CERTIFICATE OF LATE SADHU CHARAN PAUL ISSUED BY THE OFFICE OF BRAJORA GRAM PANCHAYAT DATED 31.01.2009 WAS FILED BY THE ASSESSE E IN SUPPORT OF HIS CASE ON THIS ISSUE. THE SAID ADDITIONAL EVIDENCE WA S FORWARDED BY THE LD. I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 4 OF 8 CIT(APPEALS) TO THE ASSESSING OFFICER FOR HIS VERIF ICATION AND COMMENTS AND AFTER TAKING INTO CONSIDERATION THE COMMENTS OF FERED BY THE ASSESSING OFFICER IN THE REMAND REPORT AS WELL AS T HE COUNTER COMMENTS OFFERED BY THE ASSESSEE THEREON, THE LD. CIT(APPEAL S) CONFIRMED THE ADDITION OF RS.2,87,000/- MADE BY THE ASSESSING OFF ICER BY REJECTING THE CLAIM OF THE ASSESSEE REGARDING AVAILABILITY OF OPE NING CASH BALANCE FOR MAKING INVESTMENT IN THE YEAR UNDER CONSIDERATION A FTER DISCUSSING ALL THE RELEVANT ASPECTS IN HIS IMPUGNED ORDER AS UNDER :- THE ADDITIONAL POINTS TO BE CONSIDERED ARE AS UNDE R:- A. LEGAL STATUS OF AFFIDAVIT: THE LEGAL POSITION IS AS UNDER:- AN AFFIDAVIT IS A PIECE OF EVIDENCE, WHICH ALONG WI TH OTHER MATERIAL ON RECORD, HAS TO BE TAKEN INTO CONSIDERAT ION BEFORE ARRIVING AT A FINDING. A STATEMENT BY A DEPONENT CAN BE HELD TO BE UNRELIABLE EITHER ON THE BASIS OF CROSS-EXAMINATION OF THE DEP ONENT OR BY REFERENCE TO OTHER MATERIAL ON RECORD (GUNWANTIBAI RATILAL VS CIT (MP) 146 ITR 140,SILK MUSEUM VS CIT (GUJ) 257 ITR 2 2) AFFIDAVIT NEED NOT ALWAYS BE ACCEPTED AS CORRECT. I T IS NEITHER A RULE OF PRUDENCE NOR A RULE OF LAW THAT THE STATEME NTS MADE IN AN AFFIDAVIT WHICH REMAINS UNCONTROVERTED, MUST INVARI ABLY BE ACCEPTED AS TRUE AND RELIABLE. ORDINARILY, IN THE ABSENCE OF DENIAL, THE STATEMENTS MAY BE ACCEPTED AS TRUE BUT IF THERE ARE CIRCUMSTANCES WHICH SUGGESTS THAT THE STATEMENTS ON AFFIDAVIT SHO ULD NOT BE ACCEPTED AS TRUE, THE ABSENCE OF DENIAL BY THE OTHE R SIDE, WOULD NOT BY ITSELF BE SUFFICIENT TO CLOTHE THE STATEMENTS ON AF FIDAVIT WITH TRUTHFULNESS AND RELIABILITY (SRI KRISHNA VS CIT (A LL) 1421TR 618). B. VALIDITY OF MEMORANDUM OF UNDERSTANDING:- A DECEASED PERSON MAY OR MAY NOT LEAVE BEHIND A WIL L. WHEN WILL IS NOT LEFT BEHIND APPROPRIATE SUCCESSION LAW APPLIES. IN THE MEMORANDUM OF UNDERSTANDING THERE IS A CLAUSE READI NG AS UNDER:- 'THAT THE PARTIES SHALL EXECUTE NECESSARY DEEDS/DOC UMENTS AS AND WHEN MAY BE EXECUTED IN RESPECT HEREOF. THIS MEAN THAT FURTHER DOCUMENTS/DEEDS MAY BE IS TO BE EXECUTED IF THE PURPORTED GIFT IS TRUE. HOWEVER NO FURTHER VALIDATION OF THE CONTENTS IS MADE AND IF MADE NOT PRODUCED BE FORE ASSESSING OFFICER OR ME. C. AUTHENTICITY OF CERTIFICATE FROM BARJORA GRAM PA NCHAYAT I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 5 OF 8 THIS IS NOT A DOCUMENT PREPARED TO CONFIRM INCOME B ASED ON ANY VALID SUPPORTIVE DOCUMENTS. IT IS A BASIS OF A SELF DECLARATION FROM APPLICANT. MOREOVER THE DOCUMENT STATES INCOME OF R S.25,000/- PER MONTH OVER LAST 20 YEARS. IN A 20 YEAR PERIOD AGRIC ULTURAL INCOME CANNOT BE UNIFORM. FURTHER IN 20 YEARS EVEN IF RS.2 5,000/- IS EARNED PER MONTH, THERE MUST BE PROOF OF SAVINGS. 10. CONSIDERING ALL THE ABOVE ASPECTS, I HOLD THAT THE SOURCE OF RS.3,24,600/- CLAIMED AS A GIFT IN F.Y. 2003-04 USE D AS A SOURCE TO EXPLAIN OPENING CASH IN HAND AS ON 01.04.2004 AS NO T PROVEN. I UPHOLD THE DECISION OF ASSESSING OFFICER TO TREAT THE CLAI MED GIFT RS.3,24,600/- AS BOGUS. 11. TWO OTHER GIFTS VIZ. FROM SMT. RUPA BIGHARIA (R S.50,000/-) AND SHRI SHYAM SUNDER THAKUR (RS.25,000/-) ALSO ADDS UP TO CLAIMED ASSET POSITION AS ON 31.03.2004 OF WHICH RS.2,87,000/- IS SOURCE OF CASH AS ON 01.04.2004. NOTICE UNDER SECTION 133(6) AND UNDE R SECTION 131 ISSUED TO BOTH THESE PERSON WERE NOT RESPONDED BY T HE CLAIMED DONORS. PERSONAL ENQUIRY BY ITI REVEALED THAT NO SU CH PERSON EXIST IN THE ADDRESS. THESE ARE NOT AGITATED FURTHER IN APPE AL AS VISIBLE FROM THE SUBMISSION. THUS THE TWO GIFTS ARE ALSO FOUND T O BE UNSUBSTANTIATED. 5. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE HAS REITERATED BEFORE ME THE SUBMISSIONS M ADE BEFORE THE LD. CIT(APPEALS) ON THIS ISSUE. IT IS, HOWEVER, OBSERVE D THAT THE EXPLANATION OFFERED BY THE ASSESSEE ON THIS ISSUE HAS ALREADY B EEN CONSIDERED BY THE LD. CIT(APPEALS) IN THE LIGHT OF EVIDENCE FILED BY THE ASSESSEE IN SUPPORT AND AFTER DISCUSSING ALL THE RELEVANT ASPECTS ELABO RATELY IN HIS IMPUGNED ORDER, HE HAS HELD THAT THE EXPLANATION OFFERED BY THE ASSESSEE AS REGARDS THE INVESTMENT MADE IN THE YEAR UNDER CONSIDERATION ON THE BASIS OF THE AVAILABILITY OF OPENING CASH BALANCE WAS NOT ACCEPT ABLE. WHILE ARRIVING AT THIS CONCLUSION, THE ADDITIONAL EVIDENCE FILED BY T HE ASSESSEE WAS FORWARDED BY THE LD. CIT(APPEALS) TO THE ASSESSING OFFICER FOR VERIFICATION AND THE DETAILED REMAND REPORT SUBMITTED BY THE ASS ESSING OFFICER GIVING HIS COMMENTS HAS BEEN DULY TAKEN INTO ACCOUNT BY TH E LD. CIT(APPEALS) ALONG WITH COUNTER COMMENTS OFFERED BY THE ASSEESSE E THEREON. AFTER GOING THROUGH THE ENTIRE MATERIAL PLACED ON RECORD BEFORE ME, I FIND NO I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 6 OF 8 INFIRMITY IN THE IMPUGNED ORDER OF THE LD. CIT(APPE ALS) ON THIS ISSUE CALLING FOR ANY INTERFERENCE. 6. AS REGARDS THE OTHER CONTENTION OF THE LD. COUNS EL FOR THE ASSESSEE THAT THE OPENING CASH BALANCE GENERATED IN THE EARL IER YEARS CANNOT BE ADDED IN THE YEAR UNDER CONSIDERATION, EVEN IF IT I S FOUND TO BE NOT SATISFACTORILY EXPLAINED, IT IS OBSERVED THAT THE L D. CIT(APPEALS) HAS ALREADY CLARIFIED THIS POINT IN PARAGRAPH NO. 6 OF HIS IMPUGNED ORDER BY OBSERVING THAT THE IMPUGNED ADDITION IS MADE ON ACC OUNT OF INVESTMENT MADE IN THE YEAR UNDER CONSIDERATION UNDER SECTION 69A TO THE EXTENT THE SAME IS NOT SATISFACTORILY EXPLAINED AND SUCH ADDIT ION AS PER THE SPECIFIC PROVISION CONTAINED IN SECTION 69A HAS TO BE MADE I N THE YEAR IN WHICH SUCH UNEXPLAINED INVESTMENT IS FOUND TO BE MADE BY THE ASSESSEE. WE, THEREFORE, FIND NO MERIT IN GROUND NOS. 1 TO 4 RAIS ED IN THE APPEAL OF THE ASSESSEE AND DISMISS THE SAME. 7. THE ISSUES RAISED IN GROUND NOS. 5 & 6 RELATE TO THE ADDITION OF RS.1,00,000/- AND RS.50,000/- MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON ACCOUNT OF GIF TS CLAIMED TO BE RECEIVED BY THE ASSESSEE FROM SADHU CHARAN PAUL AND BIMAN BIHARI MONDAL RESPECTIVELY DURING THE YEAR UNDER CONSIDERA TION TREATING THE SAME AS UNPROVED AND UNEXPLAINED. 8. THE SOURCE OF INVESTMENT FOUND TO BE MADE IN THE YEAR UNDER CONSIDERATION WAS ALSO EXPLAINED BY THE ASSESSEE AS GIFTS RECEIVED FROM FIVE PERSONS. THE CLAIM OF THE ASSESSEE AS REGARDS THESE GIFTS WAS EXAMINED BY THE ASSESSING OFFICER AND THE SAME WAS NOT FOUND TO BE ACCEPTABLE IN RESPECT OF TWO GIFTS CLAIMED TO BE RE CEIVED FROM SADHU CHARAN PAUL AND BIMAN BIHARI MONDAL FOR THE FOLLOWI NG REASONS GIVEN IN THE ASSESSMENT ORDER:- 2. SADHU CHARAN PAUL :- THE ASSESSEE HAS SHOWN GIFT OF RS.1,00,000/- FROM S ADHU CHARAN PAUL. A NOTICE U/S -133(6) OF THE I.T. ACT, 1961 WAS SENT TO HIM ON THE GIVEN I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 7 OF 8 ADDRESS. THE NOTICE RETURNED UNSERVED WITH A REMARK THAT THE PERSON HAS ALREADY DIED. THE ASSESSEE WAS ASKED TO PROVE T HE GENUINENESS OF THE TRANSACTION. BUT HE DID NOT PRODUCE ANY EVIDENC E TO PROVE THE GENUINENESS OF THE TRANSACTION. HE DID NOT EVEN SUB MIT THE DEATH CERTIFICATE OF SRI SADHU CHARAN PAUL. A/R OF THE AS SESSEE ONLY STATED THAT SRI SADHU CHARAN PAUL HAS ALREADY EXPIRED DURI NG DEC. 2005 AND REPLY FROM HIM DOES NOT ARISE. THE ONUS TO PROVE TH E GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTION LIED ON THE ASS ESSEE, WHICH HE FAILED TO DISCHARGE. IN THE ABSENCE OF ANY EVIDENCE , THE CLAIM OF THE ASSESSEE IS NOT ACCEPTABLE. 3. BIMAN BIHARI MONDAL (NANA) ;- THE ASSESSEE HAS SHOWN GIFT OF RS.50,000/- FROM BIM AN BIHARI MONDAL. NOTICE U/S -133(6) OF THE I.T. ACT, 1961 WAS SENT T O HIM ON 07.05.2008 BUT REPLY FROM HIM RECEIVED ON 03.10.2008 I.E. AFTE R THE ISSUANCE OF SUMMON U/S. 131. IN THE REPLY, IT IS CLAIMED THAT R S.50,000/- WAS PAID IN CASH ON 08.07.2004 BY HIM TO THE ASSESSEE. REGAR DING SOURCE OF INCOME, IT IS WRITTEN, I HAVE MADE THIS GIFT OUT O F MY PAST SAVINGS SINCE LAST 35 YEARS OUT OF SALARY AND AGRICULTURAL INCOME. I HAVE NOT FILED ANY INCOME TAX RETURN IN THE PAST AS BECAUSE MY TAXABLE INCOME WAS BELOW THE EXEMPTION LIMIT.' HE ALSO ATTACHED TH E COPY OF HIS PENSION PAPER THAT IS OF RS.2400/- PER MONTH OUT OF WHICH RS.960/- HAD BEEN COMMUTED AND GETTING PENSION OF RS.1,440/- PER MONTH. HE HAS RETIRED FROM THE POSTAL DEPARTMENT ON 31.01.200 4. SUMMONS U/S. 131 WAS ISSUED TO HIM BUT SHE DID NOT APPEAR ON THE FIXED DATE. THE A/R OF THE ASSESSEE SUBMITTED THAT HE IS SICK AND I S A HEART PATIENT AND HE IS VERY SERIOUS DUE TO HEART STROKE AND ALSO ENCLOSED COPY OF THE PRESCRIPTION OF CARDIOLOGIST. THE PRESCRIPTION WAS OF 18.08.2008 AND HE WAS ASKED TO APPEAR ON 10.10.2008. LATER ON THE ASSESSEE WAS ALSO ASKED TO PRODUCE HIM BEFORE THE UNDERSIGNED BU T HE REITERATED THE SAME THING THAT HE IS VERY SICK. INSPECTOR'S EN QUIRY ALSO REVEALED THAT HE WAS NOT THAT MUCH SICK THAT HE COULD NOT AT TEND THE OFFICE OF THE UNDERSIGNED. FROM THE ABOVE FACTS IT IS CLEAR T HAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION . 9. ON APPEAL, THE LD. CIT(APPEALS) CONFIRMED THE AD DITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF GIFTS RECEIVED FROM SADHU CHARAN PAUL AND BIMAN BIHARI MONDAL AFTER TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON R ECORD INCLUDING THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER. 10. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. MY VIEW ON THESE ISSUES IS SIMILAR TO THE VIEW EXPRESSED BY ME ON TH E ISSUE OF ALLOWABILITY OF OPENING CASH BALANCE WHILE DECIDING GROUND NOS. 1 TO 4 OF THE I.T.A. NO. 107/KOL./2014 ASSESSMENT YEAR: 2005-2006 PAGE 8 OF 8 ASSESSEES APPEAL, INASMUCH AS I HAVE FOUND FROM TH E ENTIRE RECORD PLACED BEFORE ME THAT THE LD. CIT(APPEALS) HAS DULY TAKEN INTO CONSIDERATION THE SUBMISSIONS MADE BY THE ASSESSEE IN THE LIGHT OF MA TERIAL AVAILABLE ON RECORD INCLUDING THE COMMENTS OFFERED BY THE ASSESS EE IN THE REMAND REPORT AS WELL AS THE COUNTER COMMENTS OFFERED BY T HE ASSESSEE THEREON. AS FOUND BY THE LD. CIT(APPEALS) ON APPRECIATION OF THE RELEVANT EVIDENCE, THERE WAS FAILURE ON THE PART OF THE ASSESSEE TO ES TABLISH THE CAPACITY OF THE CONCERNED DONORS TO GIVE THE GIFTS IN QUESTION TO THE ASSESSEE AND THE LD. COUNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO C ONTROVERT OR REBUT THE FINDINGS RECORDED BY THE LD. CIT(APPEALS) ON THIS I SSUE. I, THEREFORE, FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER O F THE LD. CIT(APPEALS) CONFIRMING THE ADDITIONS MADE BY THE ASSESSING OFFI CER ON ACCOUNT OF TWO GIFTS TREATING THE SAME AS UNEXPLAINED OR UNPROVED AND UPHOLDING THE SAME, I DISMISS GROUND NOS. 5 & 6 OF THE ASSESSEES APPEAL. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 29, 2016. SD/- (P.M. JAGTAP) ACCOUNTANT MEMBER KOLKATA, THE 29 TH DAY OF JANUARY, 2016 COPIES TO : (1) SHRI SUPRIYA PAUL, C/O. S.K. PAUL, BEHIND BASAK BARRAK, SREEPALLY, ASANSOL, DIST. BURDWAN-713 304 (2) INCOME TAX OFFICER, WARD-2(3), ASANSOL, ASANSOL-713 304 (3) COMMISSIONER OF INCOME-TAX (APPEALS), ASANSOL (4) COMMISSIONER OF INCOME TAX, KOLKATA (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.