Milan Sevantilal Sheth, Surat V. Commissioner of Income Tax Appeal, New Delhi

ITA 131/SRT/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7690 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-04-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 05-02-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Capital asset; Gift; Earning of tax free income; Corroborative evidences; Onus to prove; Set aside; Capital Gains
• Section: 68; 143(3); 142(1); 250; 143(2); 72; 22

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.131/SRT/2024 Assessment Year: (2017-18) (Physical Hearing) Milan Sevantilal Sheth, B-203, Time Luxuria, Vesu – Abhva Road, Near blossom, B/s Greenland Bunglow, Surat – 395007. Vs. The ITO, Ward – 1(3)(7), Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No: BJHPS3618F (Appellant) (Respondent) Appellant by Shri K. Gopal, Advocate (AR) Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 16/04/2024 Date of Pronouncement 24/04/2024 आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal by the appellant emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, “the Act”) dated 21.12.2023 by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (in short ‘NFAC’), Delhi, [in short, “CIT (A)”], for the Assessment Year (AY) 2017-18. The Ld. CIT(A) has dismissed the appeal filed by the assessee against the order u/s 143(3) of the Act dated 23.12.2019 passed by the Income-tax Officer, Ward-1(3)(7), Surat (in short, “the AO”). Grounds of appeal raised by the appellant are as under: “1. Unexplained Cash Credit: 2 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth Assessee has shown capital gain. The sale of capital asset is duly shown in the books of accounts. The jewellery sold by assessee was received from his grandparent upon her death and details are duly mentioned in her WILL. Copy of WILL is also produced before learned A.O. for reference. Assessee reserves right to add, amend, alter or delete any of the grounds mentioned herewith.” 2. The facts of the case in brief are that the assessee is an individual and was engaged in the business of trading of cut and polished diamonds in the name and style of M/s. Diksha Diamond. The assessee e-filed his return of income for the AY 2017-18 on 08.10.2017 declaring total income of Rs.4,71,260/-. The case was selected for compulsory scrutiny based on the information received from the ADIT (Investigation), Mumbai. Statutory notices under section 143(2) and 142(1) of the Act were issued and duly served on the assessee. It may be stated that the assessee has shown net profit @ 2.22% on total turnover of Rs.2,29,15,417/-. The AO found that the assessee has disclosed long-term capital gain of Rs.1,02,721/- from sale of jewellery and diamonds costing Rs.84,57,404/- at a sale price of Rs.85,60,125/-. The AO asked the assessee to submit copies of purchase and sales bills and ledger accounts of the parties from whom the jewellery and diamonds were purchased and sold. In absence of the requisite details, the AO observed that the source of increase in capital of the assessee through the sale of jewellery and diamonds is not verified and explained. Hence, the AO issued a show notice to the assessee requesting him to furnish explanation along with supporting evidences and various details. In response to the show cause 3 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth notice, the assessee stated that the sale is duly reflected in the books of account and he has paid tax on the capital gains on the sale of the jewellery and diamonds. Regarding the source of acquisition of the impugned jewellery and diamonds, it was explained that the assessee received jewellery upon death of his grandparent as per the “Will” dated 15.01.1999 executed by the deceased person. A copy of the “Will” was enclosed to justify the receipt of the impugned valuable assets by the assessee. 3. The details submitted by the assessee and the explanation were duly considered by the AO. However, he did not accept the explanation by observing various defects which are mentioned in para 3.5 of the assessment order. The AO has stated that in the “Will” the age of the testator is stated to be 75 years in the first para and in second para it is mentioned as 70 years. The AO also observed that the possession of high quantity of jewellery and carats of diamonds by the testator without any visible source of income is not possible. In the “Will”, it is further stated that she had, in the past, given away/gifted enough jewellery to her daughters and hence there is no need to give anything more now. The testator was a house wife and therefore, according to the AO, gifting such large quantity of jewellery and diamonds to her grandson (assessee herein) as well as to her daughters, is unbelievable. The AO also stated that the assessee has not produced the the death certificate of the testator. The assessee has also not disclosed the gold and diamonds mentioned in the “Will” for a very long period of 17 years. The 4 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth conduct of the assessee is not in consonance with the normal behaviour of a common man. The intention of the assessee was “to explain unexplained amount of undisclosed/unaccounted income in the guise of sale of inherited jewellery and diamonds”. 3.1 The AO has also referred to the information received from the ADIT (Investigation), Mumbai that during the course of survey in the premises of M/s. Swastik Corporation, a copy of bill issued by the assessee was found and the bill was URD purchase without any VAT number. This proves that the purchases are not authenticated. In view of the above facts, the AO held that the theory of bill is cooked up and both the existence of jewellery and diamonds and their subsequent sale are not true. The AO observed that the assessee procured a bogus sale bill only with an intent and purpose to increase his capital. Therefore, the entire sale consideration shown in the computation of income under the head capital gain of Rs.85,60,125/- was unexplained cash credit and the same was added u/s 68 of the Act. The AO further rejected the income of Rs.1,02,721/- offered by the assess under the head of capital gains. The AO also invoked the provisions of section 115BBE of the Act since addition was made u/s 68 of the Act and levied penalty u/s 271AAC of the Act. 4. Aggrieved by the order of the AO as above, the assessee filed appeal before Ld. CIT(A). In the order passed u/s 250 of the Act dated 21.12.2023, the Ld. CIT(A) has dismissed the appeal of the assessee. In the appellate order, the Ld. CIT(A) has observed that the appellant has reiterated similar reply which 5 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth was produced before the AO during the assessment proceedings. The appellant had taken plea that the AO relied upon the information from the Investigation Wing without proving anything further and made the addition merely on the basis of information from the Investigation Wing. The Ld. CIT(A) stated that the assessee did not raise the issue of cross-examination of Shri Bijal Ashok Shah, proprietor of M./s Swastik Corporation, to whom the jewellery was sold, during the assessment proceedings. The Ld.CIT(A) observed that the AO had made enquiry during the assessment proceedings and provided sufficient opportunity of hearing to the appellant regarding the proposed addition. The reply of the appellant and supporting documents were also duly considered by the AO. The Ld. CIT(A) further held that the appellant could not rebut the findings of the AO during the appellate proceedings as well. The authenticity of source of jewellery as explained in the background of the “Will” is not plausible, as discussed by the AO in detail in the assessment order. Regarding the issue of cross-examination, the Ld. CIT(A) has relied upon the following decisions to reject the claims of the assessee: (i) GTC Industries Ltd. v. ACIT, ITAT Mumbai, 1995 (1998) 65 ITD 380 (Bom.) (ii) Nokia India (P.) Ltd v. DCIT, ITAT Delhi, 2015 (2015) 59 taxmann.com 212 (Delhi – Trib). (iii) CIT v. Kuwer Fibers (P.) Ltd., Delhi High Court, 2017 (2017) 77 taxmann.com 345 (Delhi). (iv) M/s Pebble Investment and Finance Ltd v. ITO, 2017-TIOL-238-SC-IT. (v) ITO v. M. Pirai Choodi (2011) 334 ITR 262 (SC) 6 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth (vi) Roger Enterprises Pvt. Ltd. v. CIT [2016] 72 taxmann.com 167 (SC) In the result, the addition of the entire sale consideration of Rs. 85,60,125/- shown in the computation of capital gain as an unexplained cash credit u/s 68 of the Act was upheld by the Ld. CIT(A). Aggrieved by the order of Ld. CIT(A), the assessee has filed the present appeal before this Tribunal. 5. The learned Authorised Representative (Ld. AR) of the assessee has strongly contested the addition made by the AO as well as the findings of the Ld. CIT(A). He has submitted a paper book containing 22 pages including computation of total income and capital gains, purchase memo and confirmation of account by M/s Swastic Corporation and M/s H.S. Impex Bank statements, “Will” of Smt. Putliben Kalidas Seth, death certificate of Smt. Putliben Kalidas Seth and the written submission before the Ld. CIT(A). The Ld. AR took us through the assessment order as well as the appellate order passed by the Ld. CIT(A). The Ld. AR argued that the addition has been based on mere assumption and presumption. He further relied upon the submission made to the AO during the assessment proceedings, which is reproduced at para 3.4 of the assessment order. The same is as under: “4. Assessee has sold capital assets (Jewellery, Ornaments & Diamonds) for the consideration of Rs.85,60,125/- during the year under assessment. The sale of Capital Assets is duly shown in the books of accounts of the assessee and assessee has duly paid the Capital Gain tax liability arises on these sales. Copy of ledger account of party to whom the Capital assets was sold along with sale bill thereof are attached herewith in Annexure-IV. The Jewellery sold by the assessee was acquired by him upon death of Grant parent as per will executed by the deceased person. Copy of will of grandparent stating arrangement of transfer of his assets is attached herewith in Annexure V. The will itself justified that Assessee has duly received aforesaid capital assets under in heritance.” 7 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth 6. The Ld. AR has also relied on the submission made during the appellate proceedings before the Ld. CIT(A). He had referred to para 7.1.3 of the appellate order and has particularly assailed the observation of the Ld. CIT(A) that “The authenticity of source of jewellery as explained in the background of ‘will’ is not plausible as discussed by the AO in detail in assessment order”. The Ld. AR stated that expression “plausible” used in the order of the Ld. CIT(A) leads to conclusion that he was not very sure regarding the findings given by the AO. The Ld. AR emphasized that the addition has been made on the basis of assumption and presumption and therefore is liable to be set aside. For this, the Ld. AR relied upon the decisions of the Surat Tribunal in the case of Mukesh Nanubhai Desai v. ACIT, (2022) 142 taxmann.com 85. 7. On the other hand, the learned Senior Departmental Representative (Ld. Sr. DR) for the Revenue strongly supported the orders of the authorities below and argued that there is no independent evidence to support the “Will” of the grandmother. The appellant has also not disclosed the acquisition of the impugned jewellery and diamonds for the last 17 years. The Ld. Sr. DR emphasised that source of jewellery and diamond through a “Will” from the grandmother has not been satisfactorily proved. The appellant has not filed Wealth tax Return or balance sheet to show that impugned jewellery and diamonds were duly declared and disclosed before the Department from the AY 1999-2000 when the “Will” was reportedly prepared. 8 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth 8. We have heard the Ld. AR of the appellant and Ld. Sr. DR for the Revenue. We have also carefully perused the orders passed by the lower authorities and have gone through the decisions relied upon by both parties. We have also gone through the provisions of section 68 of the Act, which have been invoked by AO to treat the entire sale consideration shown in the computation of the long-term capital gain on sale of jewellery and diamonds worth Rs. 85,60,125/- as unexplained cash credit u/s 68 of the Act. It was added by the AO in the order u/s 143(3) of the Act to the total income of the assessee. The only issue which requires consideration is whether the nature and source of the jewellery and diamonds reportedly received by the appellant from his grandmother, which have been sold subsequently to receive the sale consideration of Rs. 85,60,125/-, is duly explained by the appellant. In the paper book, the Ld. AR has submitted the purchase memo received from M/s Swastic Corporation and sales bills issued to M/s HS Impex for sale of diamonds along with their ledger accounts. The Ld. AR also submitted the bank statements reflecting payments received from M/s. Swastic Corporation and M/s HS Impex. In order to prove effectuation of these sales, the appellant had submitted copy of the “Will” dated 15.01.1999 of his grandmother, Smt. Putliben Kalidas Seth, and has stated that the gold jewellery and diamonds of 186.86 carat received by him in 1999 by way of the will belonged to his grandmother. The Ld. AR has also relied on the decision in the case of Mukesh 9 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth Nanubhai Desai (supra), where it was held that additions based on mere suspicion without any evidence on record could not be sustained. 9. We have carefully perused the “Will and Testament” and its English translation enclosed in the paper book at page Nos. 11 to 16. Since the source of acquisition claimed by the appellant is the “Will” of his grandmother, Smt. Putliben Kalidas Seth, let us reproduce it for ready reference and proper appreciation of the facts. The “Will” is dated 15.01.1999 and Smt. Putliben Kalidas Seth passed away after one year on 10.02.2000. The “Will” reads as under: “WILL AND TESTAMENT Samvat 2055 & Posh Vad Thirteenth day of Friday, the 15th day of the month of January, the English day of the year 1999. I, PUTLIBEN KALIDAS SETH, Age about 75 years, Occupation: Housework, Caste Hindu, Residing at: 13, Vimalnath Society, Mitakhali Ahmedabad, today make my last and final will and I hereby declare same to all those connected to me. I am over 70 years old. I am mentally fit &healthy. I can understand what is good and bad for myself. I do not trust my body and am not sure when this body will end. I have therefore make this my last will and testament to the intent that there should be no quarrel or strife between my heirs regarding my property in future, that after my death my immovable property may be disposed of according to my wishes as per will. Although I have not executed any other will or testament or any such writing but if any such will or testament or any such writing later on found, I hereby revoke all said will and testament and I order my property to be disposed of as decreed by me in this will. My Husband Shri. Kalidas Seth Passed away 9 (nine) years ago. I have four sons and two daughters. All my sons are married and all of them are happily settled with their own families. I have given to all my daughters whatever me and my husband wanted to give them in their hard times and on various occasion and festivals. So I don't want to bequeath anything to my daughters in my last will and testament. I have also given on various 10 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth occastions and festivals whatever I wanted to give to all my three sons, except Sevantilal. So now in my last will I wanted to bequeath the following properties only to my son Sevantilal and his son Milan Seth (who is my grandson). I have also given whatever I wanted to give on various occastions and festivals to Sevantilal's second son Shenik and daughter. I want to dispose of my movable immovable property by this will. The details of that property are as follows – 1) I transfer all my shares in the name of my son Seventilal Kalidas Seth. The details of shares owned by me are as follows- Bajaj Hindu Swam Sugar Limited G.M.D.C. State Bank of India. New India Life Insurance. Piccadilly Sugars. 2) I bequeath all my current property and current debts in the name of my son: Sevantilal Kalidas Seth. The details of which are as follows- Out of my current property Rs. 2,00,000/- in cash. Balance in all my Bank Accounts. 3) All the gold ornaments (rings, bangles, necklaces etc.), gold bar weighing about 738 grams and all the gold ornaments belonging to me, I wish to bequeath to my grandson Milan Sevantilal Seth. 4) I have a total of 187 Carats of Diamonds which I wish to give to my Grandson Milan Sevantilal Seth. I have made this will out of my own intention and wish. So that after my death, my other heirs should not oppose this will in any way and if they do then they will be eliminated and so they will have to co-operate in all ways to get this Will executed. This is my last will and testament with above particulars that I have made out of my natural love and affection, with stable state of my mind and body, without any drugs in an undisturbed condition, without any pressure of any kind from any person, duly read and got it read, duly understanding with my wish and in the presence of two witnesses making this Will which is binding on every one including me and my all the descendants, heirs, appurtenances, assignees etc. .........” 11 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth 10. It is clear from a bare reading of the “Will” that there are several inconsistencies and contradictions in it. Firstly, the age of the testator is stated to be “75 years” in para 1 whereas it is “over 70 years” in para 2. The testator unlikely to make such glaring mistake when she states that she was “mentally fit and healthy” and that she has not executed any other will or testament. Though she had 4 sons and 2 daughters, she has not given anything to her 3 sons and 2 daughters in this “Will” by stating that she had earlier given to all other daughters and sons (except father of the assessee) whatever she and her husband wanted during their hard times as well as on various occasions and festivals. However, no details regarding the gifted assets or their values to other children have been specified, unlike the case of the appellant. She has gifted all her shares and other properties at Sl. Nos.1 and 2 of the “Will” to her son Sevantilal. The value of assets given to the father of assessee is also not high. She has ,however, gifted gold ornament weighing about 738 grams and 187 carats of diamonds to her grandson, Milan Sevantilal Seth (appellant herewith). It is beyond the realm of human probability that she gifted/ gave away such high value gold jewellery and diamonds to her grandson but there is no evidence of any such gift to her own children (3 sons & 2 daughters). There are also no supporting documents to prove the source of the aforesaid assets, since she is a housewife with no regular source of income. Also, there is no independent evidence apart from the “Will” which can prove that she was in possession of the impugned assets at the time of creation of the will. The 12 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth “Will” also does not mention details of the other properties supposedly given to her other children (three sons and two daughters), making the content of the will appear concocted. It is also not clear as to why the receipt of gold jewellery and diamonds of such high value was never shown either in the Income-tax returns or the Wealth-tax returns of the assessee for a very long period of 17 years upto AY 2017-18. Neither any evidence of these valuables in the income-tax details of the grandmother has been produced before us. The reasons for not showing such high value of the assets could not be satisfactorily explained by the Ld. AR. No corroborative evidence has been furnished by the Ld. AR to support the case of the appellant. Shares have also been gifted but no details regarding the quantity and value of shares is mentioned. No DMAT account or any evidence from Stock Exchange was produced to support the “Will”. Another very important fact is absence of “probated will” in this case. On a specific question by the Bench, the Ld. AR fairly admitted that there is no probate in the present case. Probate is a legal process of proving a will in a Court and confirming its validity. In absence of the probate and existence of overwhelming surrounding circumstances discussed above, the explanation of the appellant regarding the nature and source of the impugned gold jewellery and diamonds is not prima facie satisfactory. In view of the facts discussed above, we agree with the concurrent findings of the AO and Ld. CIT(A) that the said will deed is concocted and cannot be relied upon. 13 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth 11. Let us now discuss whether the ratio of the decision relied upon by the Ld. AR in the case of Mukesh Nanubhai Desai (supra) is applicable to the facts of the present case. In the case relied upon, the assessee had declared long- term capital gains from share transactions which was claimed as exempt income u/s 10(38) of the Act. The facts of the present case are totally different because it is not a case of exempt income u/s 10(38) of the Act. In the present case, the appellant has not been able to prove the genuineness of the “Will” and its content by furnishing corroborative and supporting evidences. Even the “Will” was not probated. Further, the appellant has not produced any evidence to show that the other three sons and two daughters were actually given assets of such high value as had been given to the appellant (grandson). The appellant has not been able to furnish any balance sheet or wealth tax return of self and his grandmother to prove the existence of the given jewellery and diamonds. 12. At this juncture, it would be apt to state that the strict rule of evidence is not applicable to Income-tax proceedings and surrounding circumstances are material in determining the taxability of an event. Application of the theory of human probability to particular facts and circumstances is well recognised in the proceedings under the Income-tax Act, 1961. There is no reason why these principles should not be applicable to the case of the appellant. If such tests are applied to the facts of the present case, as elaborated above, it would lead to the inescapable conclusion that the appellant has miserably failed in 14 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth establishing its claim regarding the nature and source of acquisition of jewellery and diamonds from his grandmother. The feeble attempt to prove the non-existent fact has been duly unearthed by the AO and rightly upheld by the Ld. CIT(A). We find no infirmity in the findings of the lower authorities. 13. The AO has applied the provisions of section 68 of the Act to tax the sale consideration claimed to have been received by the appellant from sale of gold ornament and diamonds, which were given to him by her late grandmother by way of a will. Before deciding the issue, it would be proper to reproduce and discuss the provisions of section 68, which reads as under: “Cash credits. 68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year: 35 [Provided that where the sum so credited consists of loan or borrowing or any such amount, by whatever name called, any explanation offered by such assessee shall be deemed to be not satisfactory, unless,— (a) the person in whose name such credit is recorded in the books of such assessee also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the AO aforesaid has been found to be satisfactory: Provided further that] where the assessee is a company (not being a company in which the public are substantially interested), and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee- company shall be deemed to be not satisfactory, unless— (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and 15 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth (b) such explanation in the opinion of the AO aforesaid has been found to be satisfactory: 36 [Provided also] that nothing contained in the first proviso 37 [or second proviso] shall apply if the person, in whose name the sum referred to therein is recorded, is a venture capital fund or a venture capital company as referred to in clause (23FB) of section 10.” 14. A bare reading of section 68 of the Act reposes in the AO the jurisdiction to enquire from the assessee the nature and source of the sum credited in his books of account. If the explanation given by the assessee is found not to be satisfactory, further inquiries can be made by the AO himself, both in regard to the nature and source of the income credited by the assessee in the books of account. The section accords statutory recognition to the principle that cash credits which are not satisfactorily explained, or not at all explained, might be assessed to be tax as income of the assessee. The onus of proving source of sum found to have been received by the assessee is on the assessee. It is for the assessee to prove that even if cash credit represents income, it is income from a source which has been already taxed. The burden to prove the cash credit and genuineness of transaction lies on the assessee, who in order to discharge the onus must prove (i) the identity of the creditors, (ii) creditworthiness or the capacity of the creditors to advance the money and (iii) the genuineness of the transaction. Only when all the above three ingredients are prima facie and cumulatively established, the Department is required to undertake further exercises. As to how the onus can be discharged would depend on the facts and circumstances of each case. The expression ‘the 16 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth assessee offers no explanation” used in section 68 of the Act means assessee offers no proper, reasonable and acceptable explanation as regards sum found credited in the books maintained by the assessee. It has been so held by the Hon’ble Supreme Court in the case of CIT vs. T. Mohanakala, (2007) 291 ITR 278 (SC). The opinion of the AO is required to be formed objectively with reference to the material on record. Application of mind is sine qua non for forming the opinion. The burden is on the assessee to take the plea that, even if the explanation is not acceptable, the material and the attending circumstances available on record do not justify the sum found credited in the books being treated as a receipt of income nature. Where the nature and source of a receipt, whether it be of money or other property, cannot be satisfactorily explained by the assessee, it is open to the revenue to hold that it is the income of the assessee and no further burden lies on the revenue to show that the income is from any particular source. Reliance may be placed on the decisions of the Hon’ble Supreme Court in the cases of Roshan Di Hatti vs. CIT, [1977] 107 ITR 938 (SC) and Kale Khan Mohammad Hanif vs. CIT [1963] 50 ITR 1 (SC). The statute puts the onus on the assessee to offer a lucid, reasonable and acceptable explanation before the AO and thereafter the AO should form an opinion accepting or rejecting the explanation based upon appreciation of facts/materials and other attending circumstances. The opinion of the AO is required to be formed objectively based on the material available on record. In the present case, the genuineness of the transaction as 17 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth well as the creditworthiness of the donor has not been satisfactorily explained by the appellant. It is well established that identity of the creditor, creditworthiness or capacity of the creditor to advance the money and genuineness of the transactions are the three ingredients which are required to be cumulatively satisfied by the assessee to escape the mischief, the provisions of section 68 of the Act. The assessee has not been able to properly explain and satisfy the aforesaid conditions so as to discharge the onus cast on it. The creditworthiness of the will maker and genuineness of the transaction has not been proved for the reasons that assessee’s grandmother was a housewife with no regular sources of income. No evidences have been produced to show that she was in possession of so many assets to give to the appellant and her six children. The Will deed appears to be a concocted story as no specific details/quantification is mentioned in it of the assets given to other children. Shares have also been gifted but no details regarding the quantity and value of shares is mentioned. No DMAT account or any evidence from Stock Exchange was produced to support the Will. There is also inordinate and intentional delay in submission of the details. As stated earlier, the Will was made in January, 1999 but no Income-tax or Wealth-tax details were furnished for 17 years long upto 2017-18 or for the prior period to prove the existence of the gold jewellery and diamonds. The officially authenticated copy of a probated will is not available with the appellant. In view of the above factual and statutory positions and the decisions cited supra, we hold that the 18 131/SRT/2024/AY.2017-18 Milan Sevantilal Sheth onus with regard to creditworthiness and genuineness of the transactions has not been discharged satisfactorily as mandated in section 68 of the Act. Therefore, the addition made by the AO and upheld by the Ld. CIT(A) is sustained and the grounds are dismissed. 15. In the result, appeal of the assessee is dismissed. Order is pronounced on 24/04/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat Ǒदनांक/ Date: 24/04/2024 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat