Shri Rasiklal V. Kotak,HUF, Baroda V. The ACIT.,Circle-3, Baroda

ITA 1745/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0096 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-08-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 16-05-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: M J SHAH
• Keywords: Gift
• Section: 68

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI, JM AND D.C.AGRAWAL, A M RASIKLAL V. KOTAK HUF, 42, SAINIKPURI, NEW SAMA ROAD, BARODA. VS. ASSTT. CIT, CIRCLE-3, BARODA. (APPELLANT) .. (RESPONDENT) ASSESSEE BY :- SHRI M. J. SHAH, AR REVENUEBY:- SHRI R. K. DHANESTA, DR O R D E R PER D. C. AGRAWAL, ACCOUNTANT MEMBER . THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A) DATED 20.3.2008 WHEREIN HE HAS UPHELD THE AD DITION OF RS.4 LACS MADE BY THE AO UNDER SECTION 68 BY REJECTING THE CL AIM OF GIFT TO THE ASSESSEE. 2. THE FACTS OF THE CASE ARE THAT ASSESSEE FILED RE TURN OF INCOME SHOWING INCOME OF RS.19,71,950/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTIED THAT ASSESSEE HAS CREDITE D RS. 4 LACS AS GIFT RECEIVED FROM A NON-RESIDENT, SHRI NILESH M. GANDHI . THE AO REQUIRED THE ASSESSEE TO ESTABLISH IDENTITY, CREDITWORTHINES S AND GENUINENESS OF THE TRANSACTION. IN SUPPORT OF THE CLAIM, ASSESSEE FILE D A COPY OF GIFT DEED AND COPY OF THE PASS PORT OF THE DONOR.IT WAS FURTHER C LAIMED THAT FATHER OF THE KARTA OF HUF AND FATHER OF THE DONOR ARE RELATED BY FRIENDSHIP AND HENCE THERE WAS A NATURAL LOVE OF AFFECTION. REGARDING BA NK STATEMENT THROUGH ITA NO.1745/AHD/2008 ASST. YEAR :2004-05 2 WHICH GIFT WAS CLAIMED TO HAVE PASSED, IT WAS SUBMI TTED THAT THE BANK IS NOT READY TO PROVIDE COPY OF BANK STATEMENT THOUGH THE GIFT DEED MENTIONED THE NAME OF THE BANK-BRANCH AND INSTRUMEN T NUMBER. THE ASSESSEE EXPRESSED INABILITY TO SUBMIT COPY OF THE BANK STATEMENT ON THE GROUND THAT ASSESSEE DOES NOT HAVE ANY AUTHORITY TO ASK FOR BANK STATEMENT OR BANK ACCOUNT OF THE DONOR. THE ASSESSE E RELIED ON SEVERAL JUDGMENTS IN SUPPORT OF THE CLAIM WHICH ARE REPRODU CED BY AO IN HIS ORDER ON PAGES 2 TO 5 THEREOF. ON THE BASIS OF THES E JUDGMENTS IT WAS CLAIMED THAT PROVISIONS OF SECTION 68 CANNOT BE INV OKED IN THE CASE OF THE ASSESSEE. THE AO WAS NOT SATISFIED. HE FURTHER ISSU ED SHOW CAUSE NOTICE. IN RESPONSE THERETO ASSESSEE FURTHER FILED COPY OF DRAFT RECEIVED FROM NRE ACCOUNT OF THE DONOR. ACCORDING TO THE ASSESSEE BURDEN IS DISCHARGED THE MOMENT NAME, ADDRESS CONFIRMATION AN D ASSESSMENT PARTICULARS ARE SUBMITTED BY THE ASSESSEE. 3. THE AO WAS, HOWEVER, STILL NOT SATISFIED. HE REJ ECTED THE EXPLANATION ON THE GROUND THAT THE CONCERNED DONOR IS RESIDENT OF SUDAN. THE EVIDENCE REGARDING CAPACITY TO DONATE THE GIFT AMOUNT HAS NOT BEEN GIVEN. THE CIRCUMSTANCES SURROUNDING THE GIFT AND E VIDENCE OF CREDIBILITY OF THE TRANSACTION ARE NOT FURNISHED. THE GIFT IS F ROM NON-RELATIVE. IT DOES NOT ACCORD WELL WITH THE CUSTOM AND TRADITION AND D OES NOT APPEAL TO PRUDENCE. THE AO RELIED ON THE DECISION OF HON. APE X COURT IN THE CASE OF SUMATI DAYAL VS. CIT 214 ITR 801 (SC) FOR THE PR OPOSITION THAT IN ABSENCE OF RELATIONSHIP BETWEEN THE DONOR AND DONEE AND IN ABSENCE OF MOTIVE FOR GIVING GIFT, GIFT RECEIVED BY THE ASSESS EE CANNOT BE HELD GENUINE. ACCORDING TO THE AO, THE ONUS IS SQUARELY ON THE ASSESSEE TO ESTABLISH THE IDENTITY, CREDITWORTHINESS AND GENUIN ENESS OF THE TRANSACTION 3 AND THESE CONDITIONS MUST NECESSARILY BE SATISFIED. ACCORDINGLY, THE AO REJECTED THE CLAIM AND MADE THE ADDITION. 4. THE LD. CIT(A) ALSO CONFIRMED THE ADDITION FOR T HE FOLLOWING REASONS :- 2.3 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPEL LANT AND FACTS OF THE CASE. APART FROM MANY DISCREPANCIES NOTICED BY THE AO REGARDING THE GIFT, I FOUND THAT THE GIFT FROM SHRI NILESH M. GAN DHI, IS NOT FREE FROM DOUBT AND CANNOT BE CONSIDERED AS EXPLAINED U/S 68. IN VIEW OF THE FOLLOWING :- 1. THE AMOUNT SENT BY THE NON-RESIDENT WAS RS.4 LACS W HICH IS QUITE SUBSTANTIAL AND NO PERSON WILL SENT SUCH HUGE AMOUNT EVEN TO A CLOSE RELATIVE. THERE WAS NO REALATIONSHIP BET WEEN THE APPELLANT AND THE ALLEGED DONOR. ACQUAINTANCE WITH THE APPELLANT WAS MENTIONED WITHOUT ANY EVIDENCE. EVEN IF THE SAME IS BELIEVED, WITH SUCH CASUAL ACQUAINTANCE, GI FT OF RS.4 LACS CANNOT BE GIVEN. THE DECISION OF HON. SUPREME COURT IN THE CASE OF SUMATI DAYAL WHERE TEST OF HUMAN PROBAB ILITY WAS CONSIDERED AN IMPORTANT FACTOR IN TREATING ANY RECE IPT AS NOT INCOME IS VERY RELEVANT. 2. NEITHER APPELLANT NOR THE ALLEGED DONOR GAVE ANY EV IDENCE REGARDING THE FINANCIAL CAPABILITY AND RESOURCES FR OM WHICH THE GIFTS WERE GIVEN. COPY OF PASS PORT AND GIFT DEED D O NOT PROVE ANYTHING. NO EVIDENCE INCLUDING AUDITED ACCOUNTS OR BANK STATEMENT OR PROOF REGARDING FINANCIAL ASSETS OF DO NOR WERE GIVEN. MERELY CONFIRMING THE PAYMENT DOES NOT EXPLA IN THE CREDITS AS CAPITAL IN NATURE. IN THE ABSENCE OF ANY EVIDENCE TO PROVE THE FINANCIAL WORTH, THE ALLEGED GIFTS ARE CL EARLY UNEXPLAINED. IN A RECENT DECISION, DELHI ITAT IN TH E CASE OF ACIT, CIR.31(1), NEW DELHI VS. RAJIV TONDON 103 ITD 560 HELD THAT UNLESS CORROBORATIVE EVIDENCE TO ESTABLIS H FINANCIAL CAPACITY OF THE DONOR ARE FURNISHED, CREDITWORTHINE SS OF THE DONOR IS NOT PROVED AND THE AMOUNT CAN BE TREATED A S APPELLANTS UNDISCLOSED INCOME REPRESENTING HIS OWN MONEY WHICH WAS INTRODUCED IN THE GARB OF A GIFT. APPELLANTS FACTS ARE STILL WEAKER IN AS MUCH AS EVIDENCE IN THE FORM OF BANK S TATEMENTS WERE FURNISHED IN THE CASE OF RAJIV TONDON BUT THE SAME WERE NOT FILED IN THE CASE OF APPELLANT. 4 3. IN THE CASE OF GIFTS, APART FROM IDENTITY, GENUINEN ESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE DONOR AND H UMAN PROBABILITY OF MAKING SUCH GIFTS ARE TO BE ESTABLIS HED. IN THIS CASE, THE CREDITWORTHINESS IS NOT PROVED. THERE WAS NO OCCASION ON WHICH SUCH HUGE AMOUNT WOULD HAVE BEEN GIFTED. T HERE WAS NO PURPOSE OR MOTIVE BEHIND GIVING SUCH GIFT SINCE APPELLANT IS NOT RELATIVE DID NOT SHARE ANY COMMON CAUSE AND THE REFORE THERE IS NO HUMAN PROBABILITY INDICATING EXCHANGE OF GIFT S BETWEEN THE APPELLANT AND THE NON-RESIDENT. SENDING REMITTA NCE FROM ABROAD DOES NOT REQUIRE ANY SERIOUS FORMALITIES. TH E GENUINENESS CAN BE ESTABLISHED ONLY BY ESTABLISHING ALL THE FOUR ELEMENTS NAMELY IDENTITY, GENUINENESS, CREDITWORTH INESS AND SURROUNDING CIRCUMSTANCES INCLUDING HUMAN PROBABILI TY WHICH HAVE NOT BEEN DONE. 4. IN THE CASE OF CIT VS. P. MOHANKALA & OTHERS REPORT ED IN 291 ITR 278, HON. SUPREME COURT CONSIDERED GIFTS FROM N ON- RESIDENT AS NOT-GENUINE AFTER DISCUSSING FACTS OF T HE CASE, PROVISIONS OF SECTION 68 AND ALL RELEVANT DECISIONS IN THIS REGARD. IN PARA-13 TO PARA 21 APEX COURT DISCUSSED ALL THE RELEVANT DECISIONS. IN THE DECISIONS OF SUMATI DAYAL, HON. C OURT CONSIDERED SURROUNDING CIRCUMSTANCES AND THE TEST O F HUMAN PROBABILITIES RELEVANT WHILE CONSIDERING THE ASSESS EES EXPLANATION U/S 68. AFTER CONSIDERING VARIOUS DECIS ION, HON. COURT HELD THAT THE TRANSACTIONS WERE APPARENTLY HE LD TO BE NOT REAL ONE. MAY BE THE MONEY CAME BY WAY OF BANK CHEQ UE AND PAID THROUGH THE PROCESS OF BANKING TRANSACTION BUT THAT ITSELF OF NO CONSEQUENCE. 5. BEFORE US, LD. AR FOR THE ASSESSEE SUBMITTED THA T IN THE CASE OF WIFE OF THE ASSESSEE WHO HAS RECEIVED THE GIFT FROM ANOT HER NRI, THE MATTER HAS BEEN RESTORED TO THE FILE OF AO TO ALLOW ADEQUA TE OPPORTUNITY TO THE ASSESSEE TO PRODUCE NECESSARY EVIDENCE FOR ESTABLIS HING THE CREDITWORTHINESS OF THE DONOR. THIS DECISION WAS GI VEN BY THE TRIBUNAL IN THE CASE OF SMT. PRATIKSHABEN R. KOTAK VS. ACIT IN ITA NO.4190/AHD/2007 FOR ASST. YEAR 2004-05 PRONOUNCED ON 9 TH JULY 2010. IN THAT CASE DONOR WAS ONE SHRI LATHIGARA RAMKESHKU MAR JAYANTILAL, A RESIDENT OF SUDAN. SINCE FACTS OF THE PRESENT CASE ARE THE SAME, THEREFORE, 5 THE MATTER SHOULD BE RESTORED TO THE FILE OF AO. HE FURTHER SUBMITTED THAT AO HAS ONLY DISALLOWED THE CLAIM ON THE GROUND OF C REDITWORTHINESS WHICH WILL IN ANY CASE BE ESTABLISHED BEFORE THE AO IF THE MATTER IS RESTORED TO HIM. 6. ON THE OTHER HAND, LD. DR SUBMITTED THAT IN ADDI TION TO IDENTITY OF THE CREDITOR OR DONOR, IT IS NECESSARY FOR THE ASSE SSEE TO ESTABLISH CREDITWORTHINESS AND GENUINENESS OF THE GIFT. IN AD DITION TO THIS, HUMAN PROBABILITY HAS ALSO TO BE ESTABLISHED SO AS TO PRO VE THAT THE DONOR COULD HAVE ACTUALLY GIVEN THE GIFT. ASSESSEE HAS NOT ESTA BLISHED BASIS OF NATURAL LOVE AND AFFECTION. THERE IS NO OCCASION FOR GIVING FIFT. BOTH WIFE AND HUSBAND ARE RECEIVING GIFTS AT THE SAME TIME. WHAT OCCASION ASSESSEE HAS WITH SUDAN RESIDENTS OR WITH THE DONORS. THE DONOR IN THE CASES OF ASSESSEE AND HIS WIFE ARE DIFFERENT. ASSESSEE HAS N OT SUBMITTED ANY BANK STATEMENT SO AS TO SHOW THAT MONEY HAS ACTUALLY BEE N TRANSFERRED FROM NRE ACCOUNT OF THE DONOR. THE LD. DR REFERRED TO TH E DECISION OF HON. APEX COURT IN CIT VS. P. MOHANKALIA 291 ITR 278 (SC ) WHEREIN HUMAN PROBABILITY HAS BEEN EMPHASIZED IN THE MATTER OF GI FT AND IT HAS BEEN HELD THAT PAYMENT THROUGH BANKING TRANSACTION BY ITSELF IS OF NO CONSEQUENCE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THERE IS NO CASE FOR INTERFERENCE IN THE ORDER OF LD. CIT(A). THE ORDER OF THE TRIBUNAL IN T HE CASE OF WIFE OF THE ASSESSEE IS JUDGMENT IN PERSONEM AND DOES NOT LAY D OWN A PROPOSITION OF LAW THAT IN THE MATTER OF GIFT IF IDENTITY IS PROVE D THEN ONLY THEREAFTER CREDITWORTHINESS IS TO BE ESTABLISHED AND FOR THAT MATTER SECOND INNING CAN BE GIVEN TO THE PARTIES. THE MATTER CANNOT BE REMAN DED ON WHIMS AND FANCIES UNLESS MATERIAL IS PLACED BEFORE THE TRIBUN AL SHOWING THAT THERE ARE EVIDENCES WHICH CAN PROVE THE CASE OF THE ASSES SEE BUT FOR 6 UNAVOIDABLE REASONS SUCH EVIDENCE COULD NOT BE PROD UCED BEFORE THE LOWER AUTHORITIES. BEFORE US THE ASSESSEE FAILED TO PRODUCE ANY MATERIAL TO PROVE THE CREDITWORTHINESS OF THE DONOR, AND CREDIB LE EVIDENCE SUPPORTING THE HUMAN PROBABILITY THAT GIFT COULD BE GIVEN TO T HE ASSESSEE. NO MATERIAL IS PLACED EITHER BEFORE US OR BEFORE THE L OWER AUTHORITIES TO SHOW THAT THE DONOR WAS WELL KNOWN TO THE ASSESSEE, HE H AS BEEN FREQUENTLY VISITING INDIA AND MEETING THE FAMILY MEMBERS OF TH E ASSESSEE, OR THE DONOR IS MAN OF WORTH IN THE HOST OF COUNTRY AND HE CAN BE AVAILABLE BEFORE THE AO IF AO SO REQUIRES TO PROVE THAT MONEY HAS ACTUALLY FLOWN FROM NRE ACCOUNT OF THE DONOR. IN ABSENCE OF ANY EV IDENCE SUPPORTING THE CASE OF THE ASSESSEE, NOT PRODUCED BEFORE US OR BEFORE THE LOWER AUTHORITIES, IT IS NOT JUSTIFIED TO RESTORE THE MAT TER TO THE AO. 8. IN OUR CONSIDERED VIEW IN THE PRESENT CASE AS PO INTED OUT ABOVE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE TO SHOW THE CREDITWORTHINESS OF THE DONOR, GENUINENESS OF THE TRANSACTION, OCCASION , RELATIONSHIP OF THE DONOR AND DONEE AND EVIDENCE OF NATURAL LOVE AND AF FECTION. EVEN THERE IS NO EVIDENCE THAT MONEY IS TRANSFERRED THROUGH BANKI NG CHANNEL. IN FACT WE FIND THAT- (1) THERE IS NO RELATIONSHIP BETWEEN THE DONOR AND DONE E. THE DONOR IS STRANGER TO THE ASSESSEE. NO EVIDENCE IS F ILED AS TO HOW THEY ARE KNOWN TO EACH OTHER. (2) THERE IS NO OCCASION FOR MAKING GIFT. (3) THERE IS NO EVIDENCE THAT THERE WAS ANY LOVE AND AF FECTION OR FRIENDSHIP BETWEEN THE DONOR AND DONEE SO THAT IT C OULD MOTIVATE THAT PERSON TO GIFT. (4) THERE IS NO EVIDENCE THAT THERE WAS ANY BUSINESS TR ANSACTION BETWEEN THE DONOR AND THE ASSESSEE AS IT IS NOT BEL IEVABLE THAT A STRANGER WOULD PART AWAY HIS SAVING BY GIVING GIFT TO UNKNOWN 7 PERSON SACRIFICING HIS CHANGES OF IMPROVING HIS LIV ING CONDITIONS WITH THAT MONEY. (5) THERE IS NO EVIDENCE THAT THE ASSESSEE OR HIS FAMIL Y HAS GIVEN GIFT TO THE MEMBERS OF THE DONORS FAMILY AT ANY TI ME. THE ENTIRE TRANSACTION OF GIFT IS APPARENTLY UNUSUAL AS BEHAVI OUR OF THE DONOR IS QUEER. IT IS NOT UNDERSTOOD WHY THE DONOR IS NOT ABLE TO PART AWAY A COPY OF BANK STATEMENT TO THE ASSESSEE, IF HE CAN GIVE GIFT TO THE ASSESSEE. IN THIS CASE, FRIENDSHIP BETWEEN FATHER OF DONOR AN D DONEE IS CLAIMED. NO EVIDENCE IS FURNISHED TO SUPPORT THIS CLAIM. ACCORD ING TO US IT IS ONLY AN ALIBI TO SHOW A MOTIVE FOR GIVING GIFTS. IT COULD H APPEN ONLY IN INCOME-TAX WORLD WHERE CAPITAL AND SOURCE OF INCOME OF PERSONS OF UNKNOWN MEANS ARE TRANSFERRED TO RICH PERSONS WITH MULTIPLE SOURC E OF INCOME. THE FLIGHT OF CAPITAL FROM RAGS TO RICHES IN THE FORM OF SUCH GIFTS CAN HAPPEN ONLY TO SAVE INCOME-TAX. THERE IS NOTHING IN THIS TRANSACTI ON WHICH INSPIRES CONFIDENCE ABOUT THE GENUINENESS. THE GIFT IS UNDOU BTEDLY BOGUS. IN THIS CONTEXT, IT WOULD BE PERTINENT TO REFER TO THE COMM ENTS OF THE HON. MADRAS HIGH COURT IN ADDL. CIT VS. RANGANATHAN CHET TY (C.R.) (1985) 153 ITR 456 (PAGE 466)- LOOK OF THE WAY THE GIFTS WERE MADE. NOT ONLY WERE THEY MADE THE OTHER PEOPLES CHILDREN, BUT SOME OF THEM WERE MADE TO OT HER PEOPLES WIFES. IN ANY PLACE, EXCEPTING IN A TAX COURT, GIFTS TO OTHER PEOPLES WIFES, EVEN IF THEY ARE WIVES OF CO-PARTNERS, WOULD RAISE A HOST O F QUESTIONS AND NOT A FEW EYE-BROWS, EXCEPT WHEN THERE IS AN UNDERSTANDIN G NOD. AH, IT IS ALL FOR PURPOSES OF INCOME-TAX. THE INCOME-TAX OFFICER SAW THE FACTS WITH A LAYMENS EYES, WHICH WAS THE CORRECT WAY TO LOOK AT THEM. THE TRIBUNAL FOR THEIR PART, HOWEVER, GOT INVOLVED IN THE CONVOL UTIONS OF THE MITAKSHARA LAW OF GIFTS AND BROUGHT TO BEAR A DRY A ND UNREAL LEGALISTIC APPROACH TO THE APPLICATION OF SECTION 64, WHICH TH E PROVISION DOES NOT CALL FOR, IF WE UNDERSTAND KOTHARIS CASE (1963) 49 ITR (SC) 107 ARIGHT. 8 9. IN THE MATTER OF GIFTS, ASSESSEE IS REQUIRED TO DISCHARGE THE ONUS OF SUBMITTING COMPLETE DETAIL OF GIFTS BEFORE THE AO. HE SHOULD HAVE ESTABLISHED (I) THE IDENTITY OF THE DONOR; (II) CRE DIT WORTHINESS OF THE DONOR; (III) GENUINENESS OF THE TRANSACTION; (IV) O CCASION: (V) RELATIONSHIP OF THE DONOR AND DONEE; (VI) EVIDENCE OF NATURAL LO VE AND AFFECTIONS. MERELY BECAUSE MONEY IS CLAIMED TO HAVE BEEN TRANSF ERRED THROUGH BANKING CHANNEL, IT IS NOT ENOUGH TO ESTABLISH THE GENUINENESS OF GIFT. THE HUMAN PROBABILITY HAS TO BE CONSIDERED AS TO WHY DO NOR IS PROMPTED TO GIVE GIFT TO THE ASSESSEE. THIS QUESTION IS REQUIRE D TO BE ANSWERED BECAUSE AS CONTRARY TO LOAN, IN THE CASE OF GIFT, DONOR LOS ES HIS HARD EARNED CAPITAL IN FAVOUR OF THE DONEE FOR EVER WHEREAS IN THE CASE OF LOAN THE CREDITOR RETAINS THE RIGHT TO RECOVER THE MONEY FROM THE ASS ESSEE. THEREFORE, ONUS IS HEAVIER ON THE ASSESSEE IN A CASE OF GIFT AS COMPARED TO THE CASE OF CREDIT. IN CASE OF CREDIT, IF IDENTITY OF THE CREDI TOR IS KNOWN AND CREDITWORTHINESS OF THE CREDITOR IS ESTABLISHED THE N ONUS IS SHIFTED TO THE REVENUE TO SHOW THAT CREDIT IS NOT GENUINE. BUT IN THE CASE OF GIFT ALL THE THREE INGREDIENTS ARE NECESSARY TO BE ESTABLISHED B Y THE ASSESSES AND MERELY BY GIVING EVIDENCE OF IDENTITY AND CREDIT WO RTHINESS OF DONOR, GENUINENESS CANNOT BE TAKEN TO BE ESTABLISHED AUTOM ATICALLY, 'THEREFORE, TEST OF HUMAN PROBABILITY ASSUMES IMPORTANCE SO AS TO SHOW THAT THERE WERE REASONS WHICH PROMPTED THE DONOR TO FORGO HIS HARD EARNED CAPITAL IN FAVOUR OF THE DONEE. SUCH TEST TO ESTABLISH HUMA N PROBABILITY ARE OCCASIONS WHEN NOT ONLY THE DONOR BUT OTHERS ALSO C AME UP TO GIVE GIFTS TO THE ASSESSEE: THERE WERE CEREMONIES ORGANIZED BY TH E ASSESSEE ON WHICH HE HAS SPENT MONEY: HE/SHE HAD INVITED PEOPLE AND S OME OF THOSE WHO WERE INVITED HAD DEEP BONDED RELATIONS WHICH PROMPT ED THEM TO GIVE GIFTS TO THE ASSESSEE. THE BONDAGE BETWEEN THE DONO R AND THE DONEE SHOULD BE SHOWN BY FREQUENT VISITS OF EACH OTHER; I NVOLVEMENT OF EACH OTHER INTO FAMILY AFFAIRS; STANDING FOR EACH OTHER IN THE HOUR OF NEED: 9 DONEE ALSO GIVING GIFTS TO THE DONORS; OR HIS FAMIL Y MEMBERS IN THE PAST OR ALSO IN FUTURE; THEY ARE SO CLOSELY RELATED THAT FO REGOING HARD EARNED MONEY IS UNLIKELY TO PINCH THE DONOR; DONOR IS STAN DING ON HIGHER PEDASTRAL IN TERMS OF SOCIAL STATUS, IN RELATION OR IN FINANCIAL WORTH, OR IN ANY OTHER RATIONAL CRITERIA, WHICH WOULD MAKE HIM F EEL TO PASS ON HIS HARD EARNED CAPITAL TO THE DONEE WHO STANDS ON LOWER PED ASTRAL IN ANY OF THE ABOVE CRITERIA. 10. THE ASSESSEE HAS IN WRITTEN SUBMISSION RELIED O N SEVERAL JUDGMENTS AS UNDER :- A. C1T VS. BEDI AND CO. PVT. LTD. (1998) 230 ITR 58 0 (SC) AND IN CIT VS. NOORJEHAN P K (1999) 237 ITR 570 (SC). B. GUJARAT HIGH COURT IN THE EASE OF DCIT VS. ROHIN I BUILDERS (2002) 256 ITR 360 (GUJ) C. CIT VS. ORISSA CORPORATION PVT. LTD .(1986) 159 ITR 78 (SC). D. SHRILEKHA BENARJEE VS. CIT (1963) 49 ITR 112 (SC ). E. IN SHRI RAM JHAHARMULL (KALIMPONG) LTD. VS. C IT (1967) 64 ITR 314. F. HOMI JAHANGIR GISTA VS. CIT (1959) 37 ITR 282 AN D IN CIT VS. BHARAT ENGINEERING & CONSTRUCTION CO, (83) ITR 187 (SC. G. TOLARAM DAGA VS. CIT {1966} 59 ITR 632 (ASSAM). H. CIT VS. SIBAL (RS) (2004) 269 ITR 429 (DELHI). I. ITO VS. MATADIN SNEHALATA (HUF) [2003] 81 TTJ ( ALL) (TRIB.) 995. J. NARINDER KUMAR SEKHRI V. ASSTT. CIT [2003] 81 TT J (ASR.) (TRIB.) 1036. K. ITO V. DHARAM VIR TULI [2003] 8I TTJ (CHD.) (TRI B,) 1028. L. NEMI CHARD KOTHARI V. CIT [2003| 264 ITR 254 (GA U,). 10 M. C.I.T. VS. MRS. SUNITA VACHANI 1084 L.T.R. 121(D EL). N. NEKKUMAR VS. ACIT 274 ITR 575 (JAIPUR). O. ITO VS. SANJAY KUMAR GOEL (DEL 'E') 823. 11. IN ALL ABOVE JUDGMENTS THERE IS NO PROPOSITION OF LAW THAT GIFT CAN BE ACCEPTED AS GENUINE WITHOUT EXAMINING THE CREDIT WORTHINESS OF THE DONOR AND GENUINENESS OF THE TRANSACTION IN ADDITIO N TO HUMAN PROBABILITIES, AS IS APPARENT, FACTS IN ALL ABOVE C ASES ARE DIFFERENT AND, THEREFORE, THE RATIO LAID DOWN IN THESE JUDGMENTS C ANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE. SO FAR AS JUDGMENT OF HO N. SUPREME COURT IN THE CASE OF CIT VS. ORISSA CORPORATION (P) LTD. (19 86) 159 ITR 78 (SC) IS CONCERNED, IS ONLY ABOUT THE NON-EXAMINING THE SOUR CE OF SOURCE. HOWEVER, THE LATER JUDGMENT OF HON. SUPREME COURT I N CIT VS. P. MOHANKALIA 291 ITR 278 (SC) THE IMPORTANCE OF HUMAN PROBABILITY HAS BEEN HIGH LIGHTED IN ADDITION TO CREDITWORTHINESS O F THE DONOR. IN VIEW OF THIS LATER JUDGMENT, EARLIER CONTRARY JUDGMENTS WIL L NOT HOLD GOOD. 12. IN VIEW OF THE ABOVE WE HOLD THAT ASSESSEE HAS FAILED TO PROVE THAT GIFT IS GENUINE. ACCORDINGLY, WE CONFIRM THE ADDITI ON AND DISMISS THE APPEAL FILED BY THE ASSESSEE. 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN OPEN COURT ON 27.8.2010. SD/- SD/- (BHAVNESH SAINI) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBE R AHMEDABAD, DATED : 27/8/2010. 11 MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD