Satish Chandra Agarwal, Kolkata V. ITO, Ward 40(2), Kolkata

ITA 1119/KOL/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48293 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 17-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 29-06-2009
• Court: TRIBUNAL
• Department Lawyers: A K PRAMANIK
• Keywords: Gift; Income from undisclosed sources
• Section: 68

Judgement Text

1 , A , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- A, KOL KATA [ , . .. . . .. . , , , , !' ] BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER & SRI C.D. RAO, ACCOUNTANT MEMBER # # # # / ITA NO. 1119 (KOL) OF 2009 $% &' / ASSESSMENT YEAR 2004-05 SATISH CHANDRA AGARWAL, KOLKATA. (PAN-ADKPA6086B) INCOME-TAX OFFICER, WARD-40(2), KOLKATA. (*+ / APPELLANT ) - $ - - VERSUS - (./*+/ RESPONDENT ) *+ 0 1 !/ FOR THE APPELLANT: / SRI SOMNATH GHOSH ./*+ 0 1 ! / FOR THE RESPONDENT: / SRI A.K. PRAMANIK !2 / ORDER ( . .. . . .. . ), !' (C.D. RAO), ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGA INST THE ORDER OF LD. C.I.T.(A)- XII, KOLKATA DATED 19/3/2009 FOR ASSESSMENT YEAR 20 04-05. THE ONLY GROUND RAISED IN THIS APPEAL BY THE ASSESSEE IS AGAINST ADDITION OF RS. 1,00,000/- MADE BY THE A.O. ON ACCOUNT OF BOGUS GIFT AND CONFIRMED BY LD. C.I.T.(A ). 2. THE FACTS OF THE CASE, IN BRIEF, ARE THAT THE A SSESSEE WAS ENGAGED IN THE TRADING OF MERCHANDISE GOODS THROUGH HIS PROPRIETORSHIP CON CERN M/S. M.S. CORPORATION. THE A.O. OBSERVED THAT THE ASSESSEE CLAIMED TO HAVE REC EIVED GIFT OF RS.1 LAKH FROM ONE SRI MANILAL AGARWAL OUT OF NATURAL LOVE AND AFFECTION. THE A.O. DEPUTED INSPECTOR TO SERVE THE NOTICE U/S. 131 TO THE SAID SRI AGARWAL A ND ACCORDING TO HIM, ALTHOUGH THE ASSESSEE WAS NOT AVAILABLE AT THE ADDRESS GIVEN IN THE GIFT DEED, HOWEVER, THE NOTICE COULD BE SERVED UPON HIS DAUGHTER-IN-LAW AFTER GETT ING WILLINGNESS OVER PHONE FROM THE SAID DONOR, I.E. FATHER-IN-LAW. IN REPLY TO SAID NO TICE, ALTHOUGH SRI AGARWAL DID NOT APPEAR BEFORE THE A.O. IN PERSON ON THE SPECIFIED D ATE, BUT FILED A LETTER BEFORE HIM EXPLAINING THE REASON FOR HIS NON-APPEARANCE IN PER SON DUE TO HIS ILL HEALTH AND ENCLOSING THEREWITH COPIES OF I.T. RETURN FOR A.Y. 2002-03, STATEMENT OF AFFAIRS FOR 2 A.YS 2003-04 & 2004-05, BALANCE SHEETS, CASH FLOW S TATEMENT, BANK STATEMENT AND A GIFT DEED. THE A.O. OBSERVED FROM THE BALANCE SHEET AND CASH FLOW STATEMENT OF THE DONOR THAT HE HAD DEPOSITED EQUIVALENT CASH OF RS.1 LAKH TO HIS BANK ACCOUNT ON THE SAME DATE OF MAKING GIFT TO THE ASSESSEE, WHICH INC LUDED CASH DEPOSIT OF RS.30,000/- ON ACCOUNT OF SALE OF SHARES, ALTHOUGH THERE WAS NO MENTION OF SUCH SALE CONSIDERATION IN THE BANK STATEMENT OF THE DONOR. THE A.O. DOUBTI NG THE GIFT MADE BY THE SAID DONOR ISSUED A LETTER ASKING HIM TO APPEAR BEFORE THE A.O . AND TO CLARIFY THE POSITION. HOWEVER, THE SAID LETTER, ACCORDING TO THE A.O., RE TURNED UNSERVED BY THE POSTAL AUTHORITIES WITH THE REMARK NOT KNOWN. ON THE AB OVE ASSUMPTION OF FACTS, THE A.O. CAME TO THE CONCLUSION THAT THE IDENTITY, AND CREDI TWORTHINESS OF THE DONOR AS ALSO GENUINENESS OF THE GIFT COULD NOT BE ESTABLISHED BY THE ASSESSEE AND HE THUS ADDED BACK THE SAID AMOUNT OF RS.1 LAKH TO THE TOTAL INCOME OF THE ASSESSEE AS HIS INCOME FROM UNDISCLOSED SOURCE. 3. ON APPEAL, THE LD. C.I.T.(A) DID NOT FIND ANY F ORCE IN THE CONTENTION OF THE ASSESSEE THAT ALTHOUGH THE DONOR MIGHT NOT HAVE BEE N PRODUCED BEFORE THE A.O., BUT SUBMITTED ALL NECESSARY DOCUMENTS SUPPORTING/EVIDEN CING THE GIFT. ACCORDING TO LD. C.I.T.(A), THE ASSESSEE SHOULD HAVE PRODUCED THE DO NOR IN PERSON FOR EXAMINATION AND THAT NOT BEING DONE, HE UPHELD THE ACTION OF THE A. O. IN MAKING ADDITION OF RS.1 LAKH TO THE ASSESSEES TOTAL INCOME AS HIS UNDISCLOSED I NCOME. HIS OBSERVATION IN THIS REGARD IS AS UNDER :- THE APPELLANT BEFORE ME SUBMITTED THAT A GIFT OF RS .1,00,000/- HAS BEEN RECEIVED FROM MR. MANI LAL AGARWAL AND THAT THE DONOR HAS MA DE THE GIFT OUT OF LOVE AND AFFECTION TOWARDS THE APPELLANT. HE FURTHER SUBMIT TED THAT THE DONOR MIGHT HAVE NOT PRESENTED BEFORE THE A.O. BUT SUBMITTED DOCUMEN TS PROPERLY. THE SUBMISSIONS OF THE APPELLANT ARE TO BE TREATED AS THEORETICAL I N NATURE AS THE APPELLANT FAILED PRACTICALLY TO PRODUCE ANY OTHER FURTHER MATERIAL T O SUBSTANTIATE THE GENUINENESS OF TRANSACTION. HE SHOULD HAVE PRODUCED THE DONOR BEF ORE THE A.O. FOR VERIFICATION OF TRANSACTION. CONSIDERING ALL THE FACTS AND CIRC UMSTANCES, I AM IN AGREEMENT WITH REASONING/FINDING GIVEN BY THE A.O. IN THE ORD ER. I AM ALSO OF THE OPINION THAT THE APPELLANT FAILED TO PROVE THE IDENTITY, CR EDITWORTHINESS OF THE DONOR AND GENUINENESS OF TRANSACTION. AS SUCH I CONFIRM THE ADDITION OF RS.1,00,000/- MADE BY THE A.O. TOWARDS INCOME FROM UNDISCLOSED SOURCES . HENCE THIS APPEAL BY THE ASSESSEE. 3 4. THE LD. COUNSEL FOR THE ASSESSEE FILED A PAPER BOOK CONTAINING SEVERAL DOCUMENTS IN SUPPORT OF RECEIPT OF GIFT OF RS.1 LAK H FROM SRI MANILAL AGARWAL. HE SUBMITTED THAT THE AUTHORITIES BELOW DISBELIEVED TH E GENUINE GIFT ON THE GROUND THAT THE ASSESSEE FAILED TO SATISFY/PROVE THE IDENTITY, CRED ITWORTHINESS OF THE DONOR AND GENUINENESS OF TRANSACTION AS THE DONOR COULD NOT B E PRODUCED IN SPITE OF NOTICE U/S. 131 OF THE ACT RETURNED UNSERVED. HE FURTHER SUBMIT TED THAT INCOME-TAX DETAILS OF THE DONOR WERE ALREADY WITH THE A.O. AND IN RESPONSE TO NOTICE U/S. 131, ALTHOUGH THE DONOR FOR HEALTH REASON COULD NOT APPEAR IN PERSON, BUT HE COOPERATED WITH THE A.O. BY FILING HIS REPLY DATED 24/7/2006, PLACED AT PAGE-14 OF THE PAPER BOOK, EXPLAINING THE REASONS FOR HIS NON-APPEARANCE IN PERSON AND CONFIR MING THE GIFT HAVING BEEN MADE BY HIM AND FILING THEREWITH SEVERAL EVIDENCES IN SUPPO RT THEREOF INCLUDING THE ADDRESS PROOF. HE FURTHER SUBMITTED THAT THE A.O. HIMSELF ADMITTED THAT THE NOTICE ISSUED BY HIM WAS RECEIVED ON BEHALF OF THE DONOR BY HIS DAUG HTER-IN-LIFE AND THAT TOO AFTER AFFIRMATION FROM THE DONOR HIMSELF OVER PHONE. THER EFORE, THE ALLEGATION OF THE DEPARTMENT THAT THE NOTICE U/S. 131 COULD NOT BE SE RVED UPON THE DONOR IS MISLEADING. FURTHER, THE A.O. WAS MADE AVAILABLE WITH THE BANK STATEMENT, COPIES OF I.T. RETURN AND COMPUTATION OF INCOME, BALANCE SHEET, CASH FLOW STA TEMENT ETC. OF EARLIER AS WELL AS THE YEAR UNDER CONSIDERATION OF THE DONOR. IN THE BALA NCE SHEET FOR A.Y. 2004-05, THE GIFT GIVEN TO THE APPELLANT HAS BEEN DULY SHOWN. THEREF ORE, MERELY BECAUSE THE DONOR WAS NOT FOUND AT THE ADDRESS GIVEN OR HE DID NOT APPEAR IN PERSON IN RESPONSE TO NOTICE U/S. 131, THE ASSESSEE CANNOT BE PENALIZED. THE A.O. HA S SIMPLY REJECTED THE EXPLANATION OF THE ASSESSEE AND EVIDENCES PRODUCED BY HIM IN SU PPORT OF THE GIFT RECEIVED ON THE PLEA THAT THE ASSESSEE FAILED TO PRODUCE THE DONOR FOR EXAMINATION WITHOUT EXHAUSTING THE SCOPE AVAILABLE TO HIM IN SUCH CASES AS PER LAW . IN REGARD TO CASH DEPOSIT BEFORE MAKING THE GIFT BY THE DONOR, THE LD. COUNSEL SUBMI TTED THAT CASH OF RS.30,000/- WAS DEPOSITED BY THE DONOR IN HIS BANK ACCOUNT OUT OF S ALE OF SHARES. HE ALSO SUBMITTED THAT IN OFF-MARKET TRADING, CASH TRANSACTION IS A G ENERAL PRACTICE AND THE DEPARTMENT WITHOUT APPRECIATING SUCH ACCEPTED PRACTICE HAS DOU BTED THE DEPOSIT. THE LD. COUNSEL SUBMITTED THAT THE ONUS ON THE ASSESSEE HAS BEEN DU LY DISCHARGED AND THE A.O. ARBITRARILY PRESUMED THAT THE GIFT WAS NOTHING BUT ASSESSEES INCOME FROM UNDISCLOSED 4 SOURCE. HE, THEREFORE, SUBMITTED THAT ADDITION SUS TAINED BY THE LD. C.I.T.(A) ON THIS ACCOUNT SHOULD BE DELETED. IN SUPPORT OF HIS SUBMI SSIONS, THE LD. COUNSEL RELIED ON THE FOLLOWING DECISIONS :- SMT. MADHU RAITANI VS. ACIT [(2011) 45 SOT 231 ( GAU-TM)] ANAND RAM RAITANI VS. CIT [223 ITR 544 (GAU)] CIT VS. TAJ BOREWELLS [291 ITR 232 (MAD)] 5. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTH ER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT DESPITE SE VERAL OPPORTUNITIES, THE ASSESSEE COULD NOT PRODUCE THE DONOR AND FURTHER THE DONOR D ID NOT HAVE SUCH CAPACITY TO MAKE GIFT OF RS.1 LAKH TO THE ASSESSEE. HE FURTHER SUBM ITTED THAT BEFORE MAKING GIFT, THE DONOR DEPOSITED EQUIVALENT AMOUNT AND THIS WAS NOTH ING BUT ASSESSEES UNDISCLOSED INCOME. HE, THEREFORE, SUBMITTED THAT THE ORDER OF THE LD. C.I.T.(A) UPHOLDING THE ADDITION OF RS.1 LAKH SHOULD BE SUSTAINED. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL PLACED ON RECORD. ON PERUSAL OF THE ASSESSMENT ORDER, IT IS OBSERVED THA T THE A.O. MAINLY ON THE GROUND THAT THE DONOR DID NOT APPEAR IN PERSON IN RESPONSE TO N OTICE U/S. 131 OF THE ACT AND SUBSEQUENT NOTICE ON HIM RETURNED UNSERVED TREATED THE GIFT OF RS.1 LAKH AS ASSESSEES UNDISCLOSED INCOME. AS STATED ABOVE, IN RESPONSE T O NOTICE U/S. 131 OF THE ACT, WHICH WAS RECEIVED ON BEHALF OF THE DONOR BY HIS DAUGHTER -IN-LAW, THE DONOR SRI MANILAL AGARWAL VIDE HIS LETTER DATED 24/7/2006 ALTHOUGH IN TIMATED THE A.O. ABOUT HIS ILL HEALTH FOR NON-APPEARANCE BUT AT THE SAME TIME FILE D COPIES OF BANK PASS BOOK, CASH FLOW STATEMENT, GIFT DEED, P/L ACCOUNT & BALANCE SH EET FOR THE YEARS ENDING ON 31 ST MARCH, 2002 TO 31 ST MARCH, 2004, I.T. ACKNOWLEDGEMENT FOR A.Y. 2002-03 , RESIDENTIAL PROOF ETC. IN SUPPORT OF HIS MAKING GIFT TO THE ASS ESSEE. THE GIFT RECEIVED WAS DULY ACCOUNTED FOR IN THE ASSESSEES BOOKS AS WELL AS IN THE ACCOUNT OF THE DONOR. ACCORDING TO THE A.O. FURTHER, SUBSEQUENT NOTICE ON THE DONOR SENT THROUGH POST RETURNED UNSERVED. AS SUBMITTED BY THE LD. COUNSEL, THE NOTI CE WAS SENT AT THE ADDRESS WRITTEN ON THE GIFT DECLARATION, WHEREAS THE DONOR HIMSELF VID E HIS LETTER DATED 24/7/2006 HAS FILED ADDRESS PROOF. THEREFORE, IN OUR CONSIDERED OPINIO N, THE IDENTITY OF THE DONOR COULD NOT BE DOUBTED ON THE FACTS AND CIRCUMSTANCES OF TH E CASE. THE DEPARTMENT ALSO RAISED 5 OBJECTION ABOUT CASH DEPOSIT IN THE DONORS BANK AC COUNT BEFORE MAKING GIFT. IT IS AN ESTABLISHED POSITION THAT IT IS NOT THE BUSINESS OF THE ASSESSEE TO FIND OUT SOURCE OF MONEY OF HIS CREDITOR OR DONOR, AS THE CASE MAY BE, AS THIS ASPECT MAY NOT BE WITHIN THE SPECIAL KNOWLEDGE OF THE ASSESSEE. 5.1. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. DAULAT RAM RAWATMULL [87 ITR 349 (SC)] HAS HELD THAT THE ONUS OF PROVING THA T THE APPARENT IS NOT REAL WAS ON THE PARTY WHO CLAIMED IT TO BE SO. AS STATED ABOVE, THE AUTHORITIES BELOW COULD NOT BRING ON RECORD ANY CONCLUSIVE EVIDENCE, EXCEPT ALLEGING THAT THE DONOR COULD NOT BE PRODUCED, TO SHOW THAT DONOR FROM WHOM THE GIFT WAS RECEIVED WAS BOGUS. FURTHER, NO EVIDENCE COULD BE BROUGHT ON RECORD BY THEM TO SHOW THAT THE AMOUNT WHICH WAS RECEIVED BY THE ASSESSEE FROM THE DONOR HAD ACTUALL Y BEEN RECEIVED BY THE DONOR FROM THE ASSESSEE OUT OF HIS UNDISCLOSED INCOME. IN THIS CONNECTION, WE MAY REFER TO THE DECISIONS OF HONBLE SUPREME COURT IN THE CASE OF C IT VS. BEDI & CO. P. LTD. [230 ITR 580 (SC)] AND HONBLE CALCUTTA HIGH COURT IN TH E CASE OF CIT VS. CURRENCY INVESTMENT CO. LTD. [241 ITR 494 (CAL)] WHEREIN IT HAS BEEN HELD THAT WHEN THE ASSESSEE HAS DISCLOSED THE IDENTITY OF THE PARTIES FROM WHOM IT PURCHASED SHARES AND TO WHOM IT SOLD THE SHARES, GENUINENESS OF THE TRANSAC TION CANNOT BE DENIED MERELY BECAUSE THE ASSESSEE COULD NOT PRODUCE THE BROKERS THROUGH WHOM THE SHARE WERE SOLD. IN SUCH CIRCUMSTANCES, THE A.O. COULD NOT HAVE TREA TED THE SAID AMOUNTS AS THE INCOME DERIVED BY THE ASSESSEE FROM UNDISCLOSED SOURCES. T HE ABOVE POSITION IS FURTHER CLARIFIED BY THE DECISION OF THE HONBLE GAUHATI HI GH COURT IN THE CASE OF NEMI CHAND KOTHARI V. CIT [264 ITR 250 (GAU)], WHEREIN THEIR L ORDSHIPS WHILE EXPLAINING THE SCOPE OF SEC. 68 OF THE ACT, HAS OBSERVED AS UNDER :- . THE LOGICAL CONCLUSION, THEREFORE, HAS TO BE THA T AN INQUIRY UNDER SECTION 68 NEED NOT NECESSARILY BE KEPT CONFINED BY THE ASS ESSING OFFICER TO THE TRANSACTIONS, WHICH TOOK PLACE BETWEEN THE ASSESSEE AND HIS CREDITOR BUT THE SAME MAY BE EXTENDED TO THE TRANSACTIONS, WHICH HAV E TAKEN PLACE BETWEEN THE CREDITOR AND HIS SUB-CREDITOR. THUS, WHILE THE ASS ESSING OFFICER IS, UNDER SECTION 68, FREE TO LOOK INTO THE SOURCE(S) OF THE CREDITOR AND/OR OF THE SUB- CREDITOR, THE BURDEN ON THE ASSESSEE UNDER SECTION 68 IS DEFINITELY LIMITED . [EMPHASIS GIVEN] 6 IT WAS IN THIS CONTEXT THAT HONBLE GAUHATI HIGH CO URT IN THE ABOVE CASE HAS HELD THAT UNDER SEC. 68 OF THE ACT, CREDITORS CREDITWORTHINE SS HAS TO BE JUDGED VIS--VIS TRANSACTIONS, WHICH HAVE TAKEN PLACE BETWEEN THE AS SESSEE AND THE CREDITOR, AND IT IS NOT THE BUSINESS OF ASSESSEE TO FIND OUT SOURCE OF MONEY OF HIS CREDITOR OR GENUINENESS OF TRANSACTIONS WHICH TOOK PLACE BETWEEN CREDITOR A ND SUB-CREDITOR AND/OR CREDITWORTHINESS OF SUB-CREDITORS, FOR THESE ASPECT S MAY NOT BE WITHIN SPECIAL KNOWLEDGE OF THE ASSESSEE. THEIR LORDSHIPS OF HON BLE GAUHATI HIGH COURT IN THE SAID CASE HAS FURTHER HELD AS UNDER :- SINCE IT IS NOT THE BUSINESS OF THE ASSESSEE TO FIN D OUT THE SOURCE(S) FROM WHERE THE CREDITOR HAS ACCUMULATED THE AMOUNT, WHICH HE H AS ADVANCED IN THE FORM OF LOAN TO THE ASSESSEE, SECTION 68 CANNOT BE READ TO SHOW THAT IN THE CASE OF FAILURE OF THE SUB-CREDITORS TO PROVE THEIR CREDITW ORTHINESS, THE AMOUNT ADVANCED AS LOAN TO THE ASSESSEE BY THE CREDITOR SH ALL HAVE TO BE TREATED, AS A COROLLARY, AS THE INCOME FROM UNDISCLOSED SOURCE OF THE ASSESSEE HIMSELF. 5.2. FURTHER, ON THE FACTS AND CIRCUMSTANCES OF TH E INSTANT CASE, THE RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. ORI SSA CORPORATION PVT. LTD. [159 ITR 78 (SC)] WOULD ALSO BE SQUARELY APPLICABLE TO T HE CASE OF THE ASSESSEE. THE FACTS BEFORE THE HONBLE SUPREME COURT IN THE SAID CASE W ERE THAT THE ASSESSEE WAS A PRIVATE LIMITED COMPANY WHICH HAS CLAIMED TO HAVE RECEIVED THE LOAN OF RS.1,50,000/- FROM THREE CREDITORS. THE ASSESSEE HAS FILED BEFORE THE A.O. THE CONFIRMATION OF THE CREDITORS AND THEIR GIR NOS. THE ASSESSEE COULD NOT PRODUCE THE CREDITORS AND THE SUMMONS ISSUED U/S. 131 BY THE A.O. RETURNED WITH THE POSTA L REMARK LEFT. THEREFORE, THE A.O. TREATED THE SUM OF RS.1,50,000/- AS UNEXPLAINED CAS H CREDIT IN THE HANDS OF THE ASSESSEE. THE TRIBUNAL DELETED THE ADDITION, WHICH WAS UPHELD BY THE HONBLE HIGH COURT. ON APPEAL BY THE REVENUE, THEIR LORDSHIPS O F HONBLE SUPREME COURT HELD AS UNDER :- THAT IN THIS CASE THE RESPONDENT HAD GIVEN THE NAME S AND ADDRESSES OF THE ALLEGED CREDITORS. IT WAS IN THE KNOWLEDGE OF THE REVENUE THAT THE SAID CREDITORS WERE INCOME-TAX ASSESSEES. THEIR INDEX N UMBERS WERE IN THE FILE OF THE REVENUE. THE REVENUE, APART FROM ISSUING NOTIC ES UNDER SECTION 131 AT THE INSTANCE OF THE RESPONDENT, DID NOT PURSUE THE MATT ER FURTHER. THE REVENUE DID NOT EXAMINE THE SOURCE OF INCOME OF THE SAID ALLEGE D CREDITORS TO FIND OUT WHETHER THEY WERE CREDITWORTHY. THERE WAS NO EFFOR T MADE TO PURSUE THE SO- CALLED ALLEGED CREDITORS. IN THOSE CIRCUMSTANCES, THE RESPONDENT COULD NOT DO 7 ANYTHING FURTHER. IN THE PREMISES, IF THE TRIBUNAL CAME TO THE CONCLUSION THAT THE RESPONDENT HAD DISCHARGED THE BURDEN THAT LAY O N IT, THEN IT COULD NOT BE SAID THAT SUCH A CONCLUSION WAS UNREASONABLE OR PER VERSE OR BASED ON NO EVIDENCE. THE ABOVE DECISION OF HONBLE SUPREME COURT WAS WIT H REGARD TO LOAN TAKEN BY THE ASSESSEE WHILE THE INSTANT APPEAL IS RELATING TO GI FT RECEIVED BY THE ASSESSEE. HOWEVER, IN THE CASE OF CASH CREDIT, THE ASSESSEE HAS TO PRO VE THE IDENTITY & CREDITWORTHINESS OF THE CREDITOR AND THE GENUINENESS OF THE TRANSACTION SO AS TO DISCHARGE THE BURDEN LAY UPON HIM. SIMILARLY IN THE CASE OF GIFT, THE DONEE HAS TO PROVE THE IDENTITY OF THE DONOR, THE CREDITWORTHINESS OF THE DONOR AND THE GE NUINENESS OF THE GIFT SO AS TO DISCHARGE THE ONUS. THUS, INGREDIENTS WHICH ARE RE QUIRED TO BE PROVED TO DISCHARGE THE ONUS OF PROVING THE CASH CREDIT ARE IDENTICAL TO TH E INGREDIENTS WHICH ARE REQUIRED TO PROVE THE GIFT. THEREFORE, THE RATIO OF A DECISION GIVEN IN THE CASE OF CASH CREDIT WOULD BE SQUARELY APPLICABLE IN THE CASE OF GIFT ALSO. T HE FACTS IN THE CASE OF THE ASSESSEE ARE SIMILAR TO THE FACTS IN THE CASE OF ORISSA CORPORAT ION P. LTD. (SUPRA). IN THE CASE BEFORE US, THE ASSESSEE HAS FURNISHED ALL THE PARTICULARS OF THE DONORS INCLUDING HIS I.T. FILE NO., BALANCE SHEET SHOWING ENTRY OF GIFT MADE, CASH FLOW STATEMENT, BANK STATEMENT ETC. THE A.O. DID NOT ENQUIRE INTO THE MATTER IN T RUE SPIRIT AND TREATED THE GIFT AS BOGUS ON SURMISE AND CONJECTURE. IN VIEW OF OUR ABOVE DIS CUSSIONS, WE D O NOT FIND ANY REASON TO ENDORSE THE VIEW OF THE A.O. THAT THE GIF T OF RS. 1 LAKH RECEIVED BY THE ASSESSEE FROM SRI MANILAL AGARWAL WAS HIS UNDISCLOS ED INCOME AND, THEREFORE, THE LD. C.I.T.(A) WAS ALSO NOT JUSTIFIED IN UPHOLDING SUCH ADDITION IN THE HANDS OF THE ASSESSEE. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE, THEREFOR E, ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. !2 '3! 4 3$ 5 6 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 22/7/ 11. SD/- SD/- ( ) ( . .. . . .. . ) !' (MAHAVIR SINGH) JUDICIAL MEMBER (C.D. RA O), ACCOUNTANT MEMBER ( (( ( ' ' ' ') )) ) DATE: 22 -07-2011 8 # # # # / ITA NO. 1119 (KOL) OF 2009 !2 0 .7 8!7&9- COPY OF THE ORDER FORWARDED TO: 1. *+ / THE APPELLANT : SATISH CHANDRA AGARWAL, 69, KSHUDIRAM BOSE SARAN I, KOLKATA-700 037. 2 ./*+ / THE RESPONDENT : I.T.O., WARD 40(2), KOLKATA. 3. 2$ () : THE CIT(A)-XII, KOLKATA. 4. 2$/ THE C.I.T., KOL - 5 =5 .$ / DR, ITAT, KOLKATA BENCHES, KOLKATA 6 GUARD FILE . /7 ./ TRUE COPY, !2$3/ BY ORDER, (DKP) > ? / DY/ASSTT. REGISTRAR .