Sh. Pankaj Chhabra, New Delhi V. ITO, New Delhi

ITA 1546/DEL/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58620 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 14-12-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 08-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K MONGA
• Assessee Lawyers: P N CHAWLA
• Keywords: Gift; Bogus loan
• Section: 80HHC; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `H-1: NEW DELHI BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER I.T. A. NO.1546/DEL/2010 ASSESSMENT YEAR : 2000-01 SHRI PANKAJ CHHABRA, INCOME-TAX OFFICER, P/O M/S. RAJ STORES, VS. WARD NO.33(4), NEW DELHI . 3/5156, KRISHAN NAGAR, KAROL BAGH, NEW DELHI. PAN: AADPC0008K (APPELLANT) (RESPONDEN T) APPELLANT BY : SHRI P.N. CHAWLA. RESPONDENT BY : SHRI A.K. MONGA, SR. DR. O R D E R PER K.D. RANJAN, ACCOUNTAT MEMBER: THIS APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 200 0-01 ARISES OUT OF THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL S)-XXVI, NEW DELHI. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE RE PRODUCED AS UNDER:- 1. THAT THE ORDER OF THE CIT(APPEALS)-XXVI, NEW DE LHI, IS CONTRARY TO LAW AND FACTS ON RECORDS. 2 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(APPEALS)-XXVI WAS JUSTIFIED IN REJECTING THE AP PEAL OF THE ASSESSEE AND CONFIRMING THE ORDER OF THE LD. INCOME -TAX OFFICER, WARD NO.32(4) AND CONFIRMING THE ADDITION OF RS.1,00,000/- AS GIFT FROM SH. SANJAY MOHAN AGGARWA L? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(APPEALS)-XXVI WAS JUSTIFIED IN REJECTING THE PL EA OF THE ASSESSEE REGARDING GENUINENESS OF THE PERSON, CREDI TWORTHINESS OF THE PERSON, AFFIDAVIT, GIFT DEED, BANK STATEMENT OF THE DONOR IN WHICH HE HAS HIMSELF ADMITTED THAT THE DONOR AS A CAPITAL OF RS.32,47,90,367/- AND THIS CASE IS COVERED BY HONB LE SUPREME COURT DECISION IN THE CASE OF LOVELY EXPORT PVT. LT D. 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(APPEALS)-XXVI WAS JUSTIFIED IN CONFIRMING THE A DDITION OF RS.2,000/- BEING COMMISSION ALLEGED TO HAVE BEEN PA ID BY THE ASSESSEE FOR PROCURING THE GIFT. 2. THE ONLY ISSUE FOR CONSIDERATION RELATES TO CONF IRMING THE ADDITION OF RS.1,00,000/- AS GIFT FROM SHRI SANJAY MOHAN AGGARW AL AS ALSO CONFIRMING THE ADDITION OF RS.2,000/- BEING COMMISSION ALLEGED TO HAVE BEEN PAID BY THE ASSESSEE FOR PROCURING THE GIFT. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT IN THIS CASE ON THE BASIS OF INFORMATION RECEI VED FROM ADDITIONAL DIRECTOR OF INCOME-TAX (INVESTIGATIONS) GHAZIABAD, NOTICE UNDER SEC. 148 WAS ISSUED AFTER DULY RECORDING REASONS AND OBTAINI NG APPROVAL FROM THE PRESCRIBED AUTHORITY. IN RESPONSE TO NOTICE UNDER SEC. 148 A RETURN OF INCOME DECLARING INCOME OF RS.65,912/- WAS FILED. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT WAS CONTENDED BY THE ASSESSEE THAT A GIFT OF RS.1,00,000/- WAS RECEIVED BY THE ASSESSEE FROM SHRI SANJAY MOHAN AGG ARWAL. THE ASSESSEE 3 FILED COPY OF GIFT DEED, PHOTO COPY OF AFFIDAVIT DA TED 3.03.2000 ALLEGEDLY SIGNED BY SHRI SANJAY MOHAN AGGARWAL. THE ASSESSEE IN ORDER TO PROVE THE CAPACITY OF THE DONOR FILED A PHOTO COPY OF ASSESSM ENT ORDER FOR ASSESSMENT YEAR 1994-95 AND ACKNOWLEDGEMENT OF FILING OF RETUR N FOR ASSESSMENT YEAR 1998-99. AN AFFIDAVIT WAS ALSO FILED ON BEHALF OF THE ASSESSEE THAT THE ASSESSEE HAD RECEIVED GIFT OF RS.1,00,000/- FROM SH RI SANJAY MOHAN AGGARWAL. FROM THE ASSESSMENT ORDERS OF DONOR, THE AO NOTED THAT IN ASSESSMENT YEAR 1994-95, THE RETURN OF INCOME WAS F ILED AT THE INCOME OF RS.97,974/-. HOWEVER, AS PER THE ORDER, THE DONOR ASSESSEE CLAIMED DEDUCTION UNDER SEC. 80HHC IN CRORES AND THE SAME W AS CLAIMED AS EXEMPT IN TOTO. THUS, THE ASSESSEE WAS BANKING SOLELY UPO N THE OLD ASSESSMENT ORDER OF THE DONOR TO PROVE THE CAPACITY OF ALLEGED DONOR . IN ASSESSMENT YEAR 1998-99, THE DONOR ADMITTED INCOME OF RS.2,30,413/- AND NO EXPORT PROFIT OR EXEMPTION UNDER SEC. 80HHC WAS CLAIMED. THE AO, TH EREFORE, DOUBTED THE VERACITY OF ACTUAL STATE OF AFFAIRS SHOWN FOR ASSES SMENT YEAR 1994-95. HE ALSO NOTED THAT IN THE STATEMENT OF AFFAIRS INSUFFI CIENT WITHDRAWALS FOR HOUSE- HOLD EXPENSES WERE SHOWN. FOR ASSESSMENT YEAR 1999 -2000 OR 2000-01 COPY OF RETURN OF DONOR WAS NOT FURNISHED. THE AO CONCLUDED THAT CAPACITY OF ALLEGED DONOR IN THE YEAR OF GIVING GIFT WAS NOT PROVED. 4 3. IT WAS ALSO SUBMITTED BY THE ASSESSEE THAT SHRI SANJAY MOHAN AGGARWAL EXPIRED ON 6 TH JULY, 2005. HOWEVER, COPY OF DEATH CERTIFICATE WA S NOT FILED TO SUBSTANTIATE HIS CLAIM. IT WAS ALSO S UBMITTED THAT FAMILY OF THE SAID ALLEGED DONOR SHIFTED FROM PAHAR GANJ BUT PRES ENT WHEREABOUTS OF THE FAMILY OF THE DONOR WAS NOT KNOWN TO HIM AND HIS FA MILY MEMBERS FROM WHOM LAKHS OF RUPEES WAS RECEIVED BY WAY OF GIFT. THE AO REQUIRED THE ASSESSEE TO APPEAR FOR PERSONAL DEPOSITION. HOWEVE R, AN AFFIDAVIT WAS FILED STATING TO HAVE RECEIVED GIFT OF RS.1,00,000/- FROM SHRI SANJAY MOHAN AGGARWAL. THE COUNSEL FOR THE ASSESSEE EXPRESSED H IS INABILITY AND UNWILLINGNESS TO PRODUCE THE ASSESSEE FOR EXAMINATI ON. SINCE THE ASSESSEE WAS NOT PRODUCED, THE CONTENTS OF AFFIDAVIT WERE NO T SUBJECT TO VERIFICATION. THE AO ALSO NOTED THAT OTHER FAMILY MEMBERS OF THE ASSESSEE FAMILY SH. SUNIL CHHABRA AND SHRI KRISHAN GOPAL CHHABRA ALSO R ECEIVED GIFTS IN LAKHS FROM SHRI SANJAY MOHAN AGGARWAL. NONE OF THESE PER SONS WERE PRODUCED BEFORE THE AO. IN VIEW OF ABOVE FACTS, THE AO CAME TO THE CONCLUSION THAT THE AMOUNT OF RS.1,00,000/- ALLEGEDLY RECEIVED IN T HE GARB OF GIFT FROM THE ENTRY OPERATOR SHRI SANJAY MOHAN AGGARWAL WAS NOTHI NG BUT AN ACCOMMODATION ENTRY. THE AO THEREFORE, ADDED THE A MOUNT OF RS.1,00,000/- AS INCOME FROM OTHER SOURCES. THE AO ALSO ADDED 2% OF 5 RS.1,00,000/- AS COMMISSION WHICH MIGHT HAVE BEEN P AID BY THE ASSESSEE FOR OBTAINING SAID GIFT. 4. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE GIFT WAS RECEIVED THROUGH ACCOUNT PAYEE CHEQUE. THE ASSESSEE HAD FILED COPY OF GIFT DEED AND NO DEFECTS IN THE DOCUMENT PRODUCED BY THE ASSESSEE WE RE POINTED OUT BY THE AO. HE PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. LOVELY EXPORTS PVT. LTD., 216 CTR 1 995(SC) IN WHICH IT WAS HELD THAT IF THE SHARE APPLICATION MONEY IS REC EIVED FROM BOGUS SHAREHOLDERS WHOSE NAMES WERE GIVEN IN THE ASSESSME NT ORDER AND ALL DOCUMENTS WERE PRODUCED, ADDITION CAN BE MADE ONLY IN THE CASE OF SHAREHOLDERS AND NOT THE ASSESSEE. SINCE THE ASSES SEE HAD DISCHARGED THE ONUS, THE AO SHOULD HAVE ALLOWED GIFT AS GENUINE UN LESS ANY ADVERSE FINDINGS IN THE DOCUMENT WERE DRAWN BY HIM. THE A SSESSEE ALSO PRODUCED COPIES OF BALANCE-SHEET OF SHRI SANJAY MOHAN AGGARW AL FOR ASSESSMENT YEARS 1994-95 AND 1998-99, COPY OF ASSESSMENT FOR A SSESSMENT YEAR 1994- 95, COPY OF GIFT DEED, COPY OF AFFIDAVIT FROM DONO R AND THE COPY OF AFFIDAVIT FROM THE ASSESSEE. THE LEARNED CIT(A) EXAMINED THE CONTENTION OF THE ASSESSEE. HE CAME TO THE CONCLUSION THAT IDENTITY OF THE DONOR WAS PROVED. THE LEARNED CIT(A) OBTAINED A COPY OF BALANCE-SHEET OF SHRI SANJAY MOHAN AGGARWAL FROM HIS CASE RECORDS MAINTAINED IN CIRCLE 38(1), NEW DELHI FOR 6 THE ASSESSMENT YEAR 2000-01. AS PER BALANCE-SHEET, THE CAPITAL ACCOUNT AS ON 31 ST MARCH, 2000, SHOWED A BALANCE OF RS.32,53,94,825/- . THE LEARNED CIT(A) FURTHER NOTED THAT THE BALANCE OF RS.32,53,9 4,825/- WAS ARRIVED AT AFTER MAKING ADJUSTMENTS FOR EXPENDITURE ON ACCOUNT OF LIC AT RS.67,511/-; MEDICLAIM AT RS.9,501/-; AND HOUSEHOLD AND OTHER WI THDRAWALS AT RS.7,92,534/-. HOWEVER, NO REDUCTION ON ACCOUNT OF ANY GIFT TO THE ASSESSEE WAS SHOWN FROM THE CAPITAL ACCOUNT. MOREOVER, SHRI SANJAY MOHAN AGGARWAL HAD CONFESSED BEFORE THE INVESTIGATION WIN G OF HAVING BEEN IN THE BUSINESS OF PROVIDING BOGUS GIFTS AND BOGUS LOANS A T A LARGE SCALE. HOWEVER, SINCE THESE GIFTS WERE NOT GENUINE ONE, IN HIS BALA NCE-SHEET, THE FACTUM OF GIFT WAS NOT ACCOUNTED. HAD THE GIFT BEEN GENUINE, THE DONOR WOULD HAVE REDUCED THE CAPITAL ACCORDINGLY. FURTHER, NO EVIDE NCE, WHATSOEVER, COULD BE PRODUCED BY THE ASSESSEE TO SUGGEST THAT THE ASSESS EE HAD ANY RELATIONSHIP, ASSOCIATION OR EVEN ANY CASUAL ACQUAINTANCE WITH TH E DONOR WHO HAD ALSO MADE SIMILAR HUGE GIFTS TO OTHER FAMILY MEMBERS OF THE ASSESSEE. THE LEARNED CIT(A) THEREFORE, CONCLUDED THAT THE GIFT W AS NOT GENUINE. THE LEARNED CIT(A) ALSO NOTED THAT DURING THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2000-01, SHRI SANJAY MOHAN AGGARWAL HAD MADE GIFT TO SEVERAL PERSONS RUNNING IN A FEW CRORES. HOWEV ER, IN HIS OWN BALANCE- SHEET FOR 2000-01, NO AMOUNT HAS BEEN REDUCE D OUT OF HIS CAPITAL, 7 WHICH OUGHT TO HAVE BEEN DONE IN THE CASE OF GENUIN E GIFT. SHRI SANJAY MOHAN AGGARWAL BEFORE INVESTIGATION WING, GHAZIABAD , HAD ADMITTED TO HAVE RUNNING A SCAM OF PROVIDING BOGUS ENTRIES AND HAD HIMSELF INFORMED ABOUT THE BOOKS THROUGH WHICH SUCH A SCAM WAS RUN. THE ASSESSEE WAS ONE OF THE BENEFICIARIES OF SUCH BOGUS GIFT FROM THE DO NOR, ACCOUNT WITH VIJAYA BANK, ANSARI ROAD, NEW DELHI. THE LEARNED CIT(A) I N VIEW OF THESE FACTS CAME TO THE CONCLUSION THAT THE GIFT OF RS.1,00,000 /- ALLEGED TO HAVE BEEN RECEIVED FROM SHRI SANJAY MOHAN AGGARWAL WAS NOT GE NUINE. HE, THEREFORE, UPHELD THE ADDITION OF RS.1,00,000/- AND COMMISSION OF RS.2000/- ALLEGED TO HAVE BEEN PAID FOR OBTAINING THE BOGUS GIFT ENTRY F ROM THE ALLEGED DONOR. 5. BEFORE US, THE LEARNED AR OF THE ASSESSEE SUBMIT TED THAT SHRI SANJAY MOHAN AGGARWAL WAS MAN OF MEANS AND THIS FACT IS ES TABLISHED FROM THE BALANCE-SHEET OF THE DONOR FOR ASSESSMENT YEAR 1998 -99. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAD OBTAINED COPIES OF STATEMENTS THROUGH RTI. FROM THE AFORESAID INFORMATION, IT WAS SEEN THAT SH RI SANJAY MOHAN AGGARWAL HAD NOT GIVEN ANY STATEMENT. THE STATEMEN T OF SHRI SANJAY MOHAN AGGARWAL, IF ANY, WAS NOT SUPPLIED TO THE ASSESSEE NOR THE STATEMENT OF SHRI SANJAY MOHAN AGGARWAL WAS CONFRONTED. THEREFORE, A DDITION HAS BEEN MADE BY THE ASSESSING OFFICER ABSOLUTELY ON WRONG F ACTS. MOREOVER, WHEN A DONOR HAD GIVEN AFFIDAVIT AND MADE THE PAYMENT, N O ADDITION CAN BE MADE 8 IN THE HANDS OF THE DONEE. IN SUCH CASE, DONOR HAS TO SUFFER AND NOT THE DONEE. THERE IS NO EVIDENCE WITH THE AO TO PROVE T HAT IT WAS THE MONEY OF THE ASSESSEE WHICH HAS BEEN SHOWN AS GIFTS. THE GI FT IS A QUESTION OF FACTS AND ALL EVIDENCES WERE FILED. HE THEREFORE, SUBMIT TED THAT THE GIFT RECEIVED BY THE ASSESSEE IS GENUINE. HE PLACED RELIANCE ON T HE DECISIONS OF HONBLE HIGH COURTS IN THE CASES OF (I) CIT VS. SURESH KUMA R KAKAR, 324 ITR 231 (DELHI); AND (II) CIT VS. RAM DEV KUMAR CHITLANGIA, 315 ITR 433 (RAJ.), FOR THE PROPOSITION THAT FOR GIFTS, NO BLOOD RELATI ONSHIP IS REQUIRED. HE ALSO PLACED RELIANCE ON THE DECISION OF HONBLE RAJASTHA N HIGH COURT IN THE CASE OF CIT VS. PADAM SINGH CHOHAN, 315 ITR 433. IT WAS ALSO SUBMITTED THAT THE PROOF SHOULD BE WITH THE DEPARTMENT THAT THE GI FTS WERE NOT GENUINE. HE ALSO PLACED RELIANCE ON THE DECISION OF HONBLE DEL HI HIGH COURT IN THE CASE OF CIT VS. MISS MAYAWATI, 338 ITR 563. 6. ON THE OTHER HAND, THE LEARNED SR. DR SUBMITTED THAT THERE WAS NO RELATIONSHIP BETWEEN THE DONOR AND THE DONEE AND TH ERE WAS NO OCCASION ON WHICH A GIFT OF RS.1,00,000/- COULD BE GIVEN. THER EFORE, THE GIFT IS NOT GENUINE, WHICH IS APPARENT FROM THE ORDER OF THE AO AS WELL AS THE CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THERE IS NO DISPUTE ABOUT THE FACT THAT THE DONOR AND DONEE ARE NOT RELATED. IT IS ALSO A FACT THAT AFTE R THE DEATH OF SHRI SANJAY 9 MOHAN AGGARWAL, THE WHEREABOUTS OF THE FAMILY MEMBE RS OF SHRI SANJAY MOHAN AGGARWAL ARE NOT KNOWN TO THE ASSESSEE. IN A CASE WHERE GIFTS ARE GIVEN BY UNRELATED PERSON, THERE SHOULD BE SOME OCC ASION AND CLOSENESS BETWEEN THE DONOR AND THE DONEE. EVEN ON SPECIAL O CCASIONS GENERALLY TOKEN GIFTS ARE EXCHANGED. IN THE CASE BEFORE US, THE LE ARNED CIT(A) HAS RECORDED A FINDING OF FACT THAT IN THE ALLEGED BALANCE-SHEET THE GIFT OF RS.1,00,000/- HAS NOT BEEN ACCOUNTED FOR. THEREFORE, THE GENUINE NESS OF GIFT TRANSACTION IS NOT PROVED. THE ASSESSEE WAS NOT PRODUCED BY THE L EARNED COUNSEL FOR THE ASSESSEE FOR EXAMINATION. THUS, CONDUCT OF THE ASS ESSEE SHOWS THAT THE GIFT WAS NOT GENUINE. HONBLE DELHI HIGH COURT IN THE C ASE OF RAJIV TANDON VS. ACIT, 294 ITR 488 AT PAGE 490, OBSERVED AS UNDER:- WE FIND FROM THE FACTS OF THIS CASE THAT TWO DONOR S HAD ABSOLUTELY NO CONNECTION WITH THE ASSESSEE AND THEY MADE GIFTS TO THE ASSESSEE ONLY BECAUSE HE NEEDED MONEY TO BUY A HOUSE AND THEY WANTED TO HELP HIM. IT APPEARS TO US THAT THIS IS NOT ONLY QUITE UNUSUAL BUT ALSO QUITE UNNATURAL. IT SO UNDS RATHER INCREDIBLE THAT A COMPLETE STRANGER WOULD WANT TO G IFT LAKHS OF RUPEES TO A PERSON ONLY BECAUSE THAT PERSON WANTED THE AMOUNT FOR PURCHASING A HOUSE. THE TAXING AUTHORITIES WER E ENTITLED TO LOOK INTO THE CIRCUMSTANCES, WHICH THEY DID, AND CA ME TO CONCLUSION THAT THE GIFTS COULD NOT BE SAID TO BE G ENUINE. ON THESE FACTS, WE FIND NO REASON WHY A DIFFERENT VIEW SHOULD BE TAKEN. 8. IN THE CASE BEFORE US, THE WHEREABOUTS OF THE FA MILY MEMBERS OF THE DONOR WERE NOT KNOWN TO THE ASSESSEE WHO MADE GIFT OF LAKHS OF RUPEES TO THE ASSESSEE AND HIS FAMILY MEMBERS. THERE WAS NO OCCASION IN THE FAMILY. 10 THE ASSESSEE WAS NOT PRODUCED BY THE COUNSEL FOR TH E ASSESSEE BEFORE THE AO FOR EXAMINATION. FROM THE EXAMINATION OF THE BA LANCE-SHEET OF THE ALLEGED DONOR, THE AMOUNT OF GIFT HAD NOT BEEN REDU CED. FROM THESE FACTS, IT IS EVIDENT THAT THE GIFTS WERE NOT GENUINE. THE AS SESSEES CASE IS SQUARELY COVERED BY THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF RAJIV TANDON (SUPRA). THE RELIANCE PLACED BY THE LEARNED AR OF THE ASSESSEE ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CAS E OF MISS MAYAWATI (SUPRA) IS MISPLACED AS THE FACTS OF THE CASE ARE E NTIRELY DIFFERENT FROM THE FACTS OF THE CASE OF MISS MAYAWATI (SUPRA). IN THE CASE OF MISS MAYAWATI (SUPRA) IN EARLIER YEARS GIFTS WERE MADE TO THE ASS ESSEE AND HER FAMILY MEMBERS, WHICH WERE ACCEPTED BY THE REVENUE. THIS IS NOT SO IN THE PRESENT CASE. THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SURESH KUMAR KAKAR (SUPRA) IS NOT APPLICABLE AS IN THIS CASE, THE GIFT WAS MADE BY THE MOTHER. HENCE, THIS DECISION IS OF NO HELP TO THE ASSESSEE. 9. HONBLE SUPREME COURT IN THE CASE OF SUMATI DAYA L VS. CIT, 214 ITR 801 AT PAGE 806 HAS OBSERVED AS UNDER:- THERE IS NO DISPUTE THAT THE AMOUNTS WERE RECEIVED BY THE APPELLANT FROM VARIOUS RACE CLUBS ON THE BASIS OF WINNING TICKETS PRESENTED BY HER. WHAT IS DISPUTED IS THAT WERE THEY REALLY THE WINNING OF THE APPELLANT FROM THE RACES. THIS RAISES THE QUESTION WHETHER THE APPARENT CAN BE CONSIDERED AS THE REAL. AS LAID DOWN BY THIS COURT, THE APPARENT MUS T BE CONSIDERED THE REAL UNTIL IT IS SHOWN THAT THERE AR E REASONS TO BELIEVE THAT THE APPARENT IS NOT REAL AND THAT TAXI NG AUTHORITIES 11 ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTA NCES TO FIND OUT THE REALITY AND THE MATTER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABILITIES. APPLYING THE TEST OF HUMAN PROBABILITIES, IT IS TO BE HELD THAT NEITHER THE ASSESSEE APPEARED BEFORE THE AO FOR EXAMINATION NOR WAS THERE ANY RELATIONSHIP BETWEEN THE ASSESSEE AND DONOR. THE A SSESSEE WAS NOT AWARE OF WHEREABOUTS OF THE FAMILY MEMBERS OF THE DONOR. ME RELY BECAUSE THE GIFT WAS RECEIVED THROUGH BANKING CHANNEL IS NOT CONCLUS IVE PROOF OF GENUINENESS OF THE GIFTS. RELIANCE IS PLACED ON T HE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. PRECISIO N FINANCE PVT. LTD., 208 ITR 465, WHEREIN IT HAS BEEN HELD THAT MERE PAYMENT BY ACCOUNT PAYEE CHEQUE IS NOT SACROSANCT NOR IT CAN MAKE A NON-GENU INE TRANSACTION GENUINE. 10. IN VIEW OF ABOVE DISCUSSION, IT IS HELD THAT TH E ASSESSEE HAD NOT BEEN ABLE TO DISCHARGE THE ONUS THAT THE ASSESSEE HAD RE CEIVED A GENUINE GIFT FROM SHRI SANJAY MOHAN AGGARWAL. RELIANCE PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. LOVELY EXPORTS (P) LTD., 216 CTR 195, IN VIEW OF ABOVE FACTS, IS OF NO HELP. THE AS SESSEE WANTS TO ESCAPE FROM ASSESSMENT ON THE GROUND THAT ADDITION CAN BE MADE IN THE CASE OF ALLEGED DONOR AND NOT IN THE CASE OF THE ASSESSEE. IN VIEW OF ABOVE FACTS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY TH E LEARNED CIT(A) 12 CONFIRMING THE ADDITION. SINCE WE HAVE UPHELD THE A DDITION OF RS.1,00,000/-, THE ADDITION OF RS.2000/- IS ALSO CONFIRMED. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 12. THIS DECISION IS PRONOUNCED IN THE OPEN COURT O N 31 ST JANUARY, 2012. SD/- SD/- (U.B.S. BEDI) (K.D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST JANUARY, 2012. COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR, ITAT.