Sandhya Gupta, Kanpur V. Dy. Commissioner of Income Tax, Kanpur

ITA 20/LKW/2013

• Counselvise Citation: 2023714 RSA 2013
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-08-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 11-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR A K SINGH
• Keywords: Gift; Income from undisclosed sources; Retrospective amendment
• Section: 68

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.20/LKW/2013 ASSESSMENT YEAR:2003 - 04 SMT. SANDHYA GUPTA, 117/N/583, RANIGANJM KAKA DEO, KANPUR. PAN:ACZPG3740J VS. DY.C.I.T., CC - 1, KANPUR. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RAKESH GARG, ADVOCATE RESPONDENT BY DR. A. K. SINGH, CIT, D.R. DATE OF HEARING 03/08/2015 DATE OF PRONOUNCEMENT 1 1 /09/2015 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) - I, KANPUR DATED 31/10/2012 FOR THE ASSESSMENT YEAR 2003 - 04. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING AN ADDITION OF RS.5,25,784/ - ON ACCOUNT OF UNEXPLAINED GIFT. 2. BECAUSE THE CIT(A) HAS ERRED ON FACTS WHILE MAKING THE DECISION ABOUT THE GENUINENESS OF THE TRANSACTION. 3. BECAUSE THE CIT(A) HAS ERRED ON FACTS WHIL E MAKING THE DECISION ABOUT THE IDENTITY OF THE DONOR. 4. BECAUSE THE ADDITION CONFIRMED BY THE CIT(A) IS CONTRARY TO FACTS, BAD IN LAW AND BE DELETED. 2 3. THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND ALSO, WHICH IS AS UNDER: BECAUSE THERE BEING NO SE ARCH WARRANT IN THE NAME OF THE ASSESSEE, THE ORDER PASSED U/S 153(A) IS WITHOUT JURISDICTION, BAD IN LAW AND BE QUASHED. 4. LEARNED A.R. OF THE ASSESSEE SUBMITTED IN COURSE OF HEARING BEFORE US THAT HE HAS FILED BRIEF SYNOPSIS DATED 03/08/2015 AVAILABLE ON PAGES 29 TO 32 OF THE PAPER BOOK AND THE ISSUE INVOLVED IN ADDITIONAL GROUND OF APPEAL MAY BE DECIDED AS PER THESE BRIEF SYNOPSIS. REGARDING THE MERIT OF THE ADDITION MADE BY THE ASSESSING OFFICER AS PER GROUNDS RAISED IN THE MEMO OF APPEAL , HE SUBMITTED THAT RELIANCE IS PLACED ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF DCIT VS. RAJ KUMAR ARORA IN I.T.A. NO.290/LKW/2009 DATED 28/04/2015, COPY AVAILABLE ON PAGES 51 TO 57 OF THE PAPER BOOK. 5. LEARNED D. R. OF THE REVENUE SUPPORTED THE O RDERS OF THE AUTHORITIES BELOW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ISSUE IN DISPUTE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 3.2 TO 3.2.5 OF HIS ORDER, WHICH ARE REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 3.2 D ISCUSSION AND DECISION: 3.2.1 GENERALLY, THE GIFTS MAY INVOLVE BIOLOGICAL RELATIVES, SOCIOLOGICALLY CONNECTED OR UNCONNECTED PERSONS; OR POLITICALLY OR SPIRITUALLY REVEREND INDIVIDUALS, ETC. IN CASES WHERE THE GIFTS INVOLVE THE BIOLOGICAL RELATIVES, THE GIVING OF GIFTS IS NORMALL Y CONVENTIONAL, TRADITIONAL OR A SOCIAL PRACTICE AND THE MOTIVE IS THE EXPRESSION OF LOVE AND AFFECTION. IN SUCH CASES, GENERALLY THERE IS NO ISSUE ABOUT THE IDENTITY AND THE CONTROVERSIES ARE SOURCE OR GENUINENESS - CENTRIC. IN THE OTHER CASES, THE CONTROVE RSIES GENERALLY CENTRE AROUND THE IDENTITY AND THE CREDITWORTHINESS OF THE DONOR AND, THEREFORE, - THE WHOLE TRANSACTION IS DOUBTED. AMONG THIS LATER GROUP OF GIFTS, THE GIFT TRANSACTIONS INVOLVING THE UNRELATED NRI PERSONS AS DONORS ARE 3 ALWAYS A MATTER OF DISPUTE BETWEEN THE REVENUE AND THE ASSESSEES. IN THESE CASES, THE ASPECTS OF IDENTITY OF THE DONOR, CREDITWORTHINESS OF THE DONOR AND THE GENUINENESS OF THE TRANSACTION BECOME RELEVANT. THIS IS SIMPLY FOR THE REASO N AS TO WHY OR FOR WHAT REASON AN UNRELAT ED PERSON OR NOT SO WELL - RELATED PERSON OR GEOGRAPHICALLY SEGREGATED PERSON OFFERS GIFTS TO AN UNKNOWN OR UNFAMILIAR DONEE, WHEN THERE IS NO SCOPE FOR LOVE AND AFFECTION OR ANY OTHER EXPRESSIONS OF THAT KIND, WHICH ARE COMMONLY SEEN IN THE TRANSACTIONS OF GIFTS IN GENERAL AND VALUABLE GIFTS IN PARTICULAR. THEREFORE, THE COMMONSENSE APPROACH OF THE ASSESSING OFFICER IS TO INVESTIGATE INTO OTHER REASONS FOR SUCH VALUABLE GIFTS. SUCH INVESTIGATIONS OF THE ASSESSING OFFICER IN MATTERS OF SUCH TRANSACTIONS OF GI FTS BETWEEN THE UNRELATED PERSONS REVOLVE AROUND THE FOLLOWING; WHETHER THERE IS ANY OCCASION; HOW THE DONOR HAS COME TO KNOW OF THE DONEE; WHAT ARE THE SOCIAL OBLIGATIONS OF THE DONOR TO GIVE GIFTS RUNNING INTO LAKHS OF RUPEES WORTH TO THE DONEE; WHAT IS THE GENERAL CONDUCT OF THE DONOR IN MATTERS OF GIFTING OR THE QUANTUM OF GIFTS GIVEN OR WHETHER SUCH DONOR BELIEVES IN CASH GIFTS OR OTHERWISE; WHETHER THE DONOR IS CAPABLE OF GIFTING AT ALL; AND WHETHER THE DONOR IS CAPABLE OF GIFTING WITHOUT THE MEDIATIO N OF THE MIDDLE MAN OR A COMMISSION AGENT, WHEN THE DONOR IS SEPARATED BY THE GEOGRAPHICAL BOUNDARIES AND SO ON. FURTHER, IT IS A SETTLED POSITION THAT THE ONUS IS ON THE ASSESSEE IN THESE MATTERS AS THE ASSESSING OFFICER CAN INVOKE THE PROVISIONS OF SECTI ON 68 IN CASE OF FAILURE TO DISCHARGE SUCH ONUS. IN CASE OF GIFTS FROM THE NRIS, THE ASSESSEE HAS HIGHER LEVELS OF RESPONSIBILITY IN MATTERS OF DISCHARGING OF THE ONUS AS THE ASSESSING OFFICER USUALLY HAS NO JURISDICTION ON THEM . THE ASSESSEE MUST PRODUCE EVERY NECESSARY EVIDENCE TO SUBSTANTIATE THE CLAIM OF GENUINE GIFTS. IN THE CIRCUMSTANCES OF SUCH FAILURES, THE ADVERSE OPINION OF THE ASSESSING OFFICER ABOUT THE GENUINENESS OF THE TRANSACTION OF THE IMPUGNED GIFT IN ITSELF CONSTITUTES EVIDENCE AGAINST TH E ASSESSEE. FURTHER, THE FACTUM OF TRANSACTIONS EFFECTED THROUGH THE BANKING CHANNELS WOULD NOT COME TO THE RESCUE OF THE ASSESSEE. THE GENUINENESS OF THE GIFTS COULD NOT SIMPLY BE ACCEPTED BY MERELY BANKING ON THE TRANSACTIONS EFFECTED THROUGH THE BANKING CHANNELS. 3.2.2 UNDER THE PROVISIONS OF SECTION 68 WHAT IS TO BE SEEN ARE THE ASPECTS OF THE IDENTITY, CREDITWORTHINESS, GENUINENESS OF THE TRANSACTION AND THE DISCRETION OF THE ASSESSING OFFICER. IN THE INSTANT CASE, EVEN THE IDENTITY OF THE DONOR HAS NOT BEEN CONVINCINGLY ESTABLISHED. THOUGH A COPY OF THE PASSPORT OF THE 4 ALLEGED DONOR HAS BEEN GIVEN TO THE DEPARTMENT, THAT IS NOT AN AMPLE A PROOF TO ESTABLISH THAT IT IS THE SAME PERSON WHO HAD ALLEGEDLY GIFT/SENT THE MONEY. THE ALLEGED DONOR IS A BRITISH PASSPORT HOLDER WHEREAS THE ALLEGED GIFT DEED (DATED 29.01.2003) HAS BEEN SIGNED IN INDIA BY THE DONOR. ON PERUSAL OF THE EXTRACT OF THE PASSPORT OF THE ALLEGED DONOR, IT IS NOT ASCERTAINABLE IF THE ALLEGED DONOR WAS IN INDIA ON THAT DATE. SUBMITT ING A NON - READABLE COPY OF THE EXTRACT OF THE PASSPORT OF THE ALLEGED DONOR DOES NOT ABSOLVE THE ASSESSEE OF HIS/HER ONUS OF PROVING THAT THE ALLEGED DONOR WAS IN INDIA ON THE DATE ON WHICH HE HAD SIGNED THE SAID GIFT DEED, IN ANY CASE, SUCH GIFT DEED WHIC H PURPORTEDLY CONTAINED THE SIGNATURE OF THE ALLEGED DONOR, SHOULD HAVE BEEN DULY NOTORISED, IN ABSENCE OF WHICH IT IS IMPOSSIBLE TO VERIFY THAT IT WAS THE ALLEGED DONOR WHO HAD ACTUALLY SIGNED THE SAID DOCUMENT. HAD IT BEEN AN INDIAN DONOR, THE A.O. OR TH E DEPARTMENT COULD HAVE EASILY VERIFIED THIS FACT. BUT IN THE INSTANT CASE, AS THE A.O. HAS NO JURISDICTION OVER THE ALLEGED DONOR, IN ABSENCE OF NOTARIZED DOCUMENT, IT IS IMPOSSIBLE TO VERIFY THE GENUINENESS OF SUCH DOCUMENT. MOREOVER, WHILE GOING THROUGH THE DETAILS OF THE TRANSFER OF THE MONEY (AS SUBMITTED BY THE APPELLANT), IT IS SEEN THAT IT DOES NOT GIVE THE NAME OF THE REMITTER AS MR. J.S. PAWAR, WHO IS THE ALLEGED DONOR. IN FACT, THE DOCUMENTS STATES: ORDERING CUSTOMER: ZAHRATAL KHALEEJ EST PONOX 946 DUBAI UNITED ARAB EMIRATES. 3.2.3 IT FAILS ME AS TO HOW THE ORDERING CUSTOMER (FOR THE TRANSFER OF THIS AMOUNT) COULD BE ZAHRAT AL KHALEEJ EST RESIDING AT DUBAI WHEN THE ALLEGED DONOR IS MR. PAWAR, A BRITISH CITIZEN, RES I DING AT LONDON. FURTHER THE APPELLANT HAS FAILED TO SUBMIT A COPY OF THE BANK STATEMENT OF MR. PAWAR, WHICH COULD SHOW THAT THE IMPUGNED MONEY WAS TRANSFERRED FROM HIS BANK ACCOUNT. IN THIS VIEW OF THE MATTER, I AM OF THE CONSIDERED VIEW THAT THE APPELLANT HAS FAILED TO EVEN PROVE THE IDENTITY O F THE ALLE GED DONOR RE G ARDIN G THE GENUINENESS OF THE TRANSACTIONS, THE APPELLANT HAS NOT GIVEN ANY DETAILS AS TO HOW THEY GOT TO KNOW EACH OTHER OR AS TO HOW THEY EVEN MET (IF AT ALL). FURTHER, IT IS AN ADMITTED POSI TION THAT THERE WERE NO FORMAL OCCASION OR EVENT FOR CONTEXTUALIZING THE ALLEGED 5 G IFTS. THE RELATIONSHIP BETWEEN THE DONOR AND THE ASSESSEE WAS NOT ESTABLISHED . 3.2.4 FOR PROVING A GIFT TO BE GENUINE, THE ASSESSEE/DONEE IS REQUIRED TO PROVE THE EXISTENCE OF NATURAL LOVE AND AFFECTION, VOLUNTARY NATURE OF THE GIFT AND OCCASION FOR GIVING GIFTS. FOR A GIFT TO BE GENUINE, WHAT SHOULD APPEAR TO ANY QUASI - JUDICIAL AUTHORITY IS THAT THE DONORS AND DONEE ARE SO CLOSE TO EACH OTHER THAT THE DONORS ARE PROMPTED TO PART AWAY THEIR DEAR MONEY IN FAVOUR OF THE DONEE. THE ASSESSEE SHOULD SHOW THE EXISTENCE OF NATURAL LOVE AND AFFECTION BETWEEN THE DONOR AND DONEE . A LOVE AND AFFECTION WOULD BE PRESUMED TO BE NATURAL BETWEEN NATURAL SIBLINGS, CLOSE FRIENDS FOR MANY YEAR S, OR BETWEEN BLOOD RELATIONS. IF IT IS ESTABLISHED THAT DONORS AND DONEE ARE CLOSELY RELATED BY BLOOD OR VERY CLOSE FRIENDS FOR MANY YEARS THEN PRESUMPTION OF LOVE AND AFFECTION CAN BE RAISED. AN ASSESSEE/DONEE CAN SHOW THE EXISTENCE OF LOVE AND AFFECTION WITH DONORS BY SHOWING LONG STANDING ACQUAINTANCE/RELATIONSHIP, FREQUENT VISITS, AND FAMILY PHOTOGRAPHS ON DIFFERENT OCCASION AND AT DIFFERENT TIME INTERVALS, MUTUAL HELP AT THE TIME OF NEED, DEEP KNOWLEDGE ABOUT FAMILY AND FINANCE OF EACH OTHER, HOW THE BLOOD RELATION OF DONEE KNOWS THE DONOR AND VICE VERSA ETC. FOR A LOVE AND AFFECTION TO BE NATURAL, THE BONDAGES MUST BE TIME TESTED. IN THIS CASE, THE APPELLANT HAS FAILED TO BRING ANYTHING ON RECORD TO INDIC A TE THAT SUCH BONDAGE EXISTED BETWEEN THE APPE LLANT AND THE ALLEGED DONOR. 3.2.5 IN THIS CONNECTION, THE APPELLANT HAS CITED VARIOUS CASE LAWS, WHICH I HAVE PERUSED CAREFULLY. THIS IS ESSENTIALLY A FACTUAL TISSUE AND NEEDS TO BE DEALT WITH AS SUCH. HOWEVER, WHILE COMING TO THE CONCLUSIONS, I HAVE KEP T IN MIND THE PRINCIPLES LAID DOWN IN VARIOUS CASE LAWS INCLUDING THOSE RELIED BY THE APPELLANT AND ALSO THE DECISIONS OF THE HON. APEX COURT IN THE CASE OF P MOHANKALA (291 ITR 278) AND ALSO THE DECISIONS OF THE HON'BLE ITAT IN THE CASE OF ALOK GAUTAM (128 TTJ (LUCKNOW) 532) AND THAT OF ITO 15(1)(2), MUMBAI VS. MUKESH BHANUBHAI SHAH, [2009 ] 29 SOT 464 (MUM). IN A RECENT DECISION, THE HON'BLE DELHI HIGH COURT IN THE CASE OF RAJIV TANDON REPORTED IN 294 ITR 488 HAS CONFIRMED THE ACTION OF THE A.O. WHEREIN THE FOREIGN GIFTS WERE ADDED IN 6 T HE HANDS OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. 7. REGARDING THE ADDITIONAL GROUND, WE FIND THAT UNDER SIMILAR FACTS AND AFTER CONSIDERING SIMILAR ARGUMENTS, SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE IN THE CASE OF LAXMI SHANKAR BAJPAI IN I.T.A. NO. 261/LKW/2015 DATED 4 TH SEPTEMBER 2015. THE RELEVANT PARA OF THIS DECISION IS PARA 5 TO 8 , WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 5. WE HAVE CONSIDERED THE RIVAL SUBMISS IONS. FIRST OF ALL, WE REFER TO PROVISION OF SECTION 292CC OF THE ACT. WE FIND THAT THIS SECTION WAS INSERTED BY FINANCE ACT, 2012 WITH RETROSPECTIVE FROM 01.04.1976. AS PER THIS SECTION, IT IS PROVIDED THAT NOTWITHSTANDING THAT THE AUTHORIZATION FOR SEARC H HAS BEEN ISSUED IN JOINT NAMES, ASSESSMENT OR REASSESSMENT SHALL BE MADE SEPARATELY IN THE NAMES OF EACH OF THE PERSONS MENTIONED IN SUCH AUTHORIZATION. HENCE, AS PER THIS RETROSPECTIVE AMENDMENT IN THE INCOME TAX ACT, THE ISSUE IN DISPUTE IN THE PRESENT CASE HAS TO BE DECIDED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE. 6. REGARDING TWO JUDGMENTS OF DIVISION BENCH OF THE HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF CIT VS. VANDANA VERMA (SUPRA) AND MADHU CHAWLA (SUPRA), IT GOES WITHOUT SAYING THAT WHEN A SUBSEQUENT JUDGMENT OF LARGER BENCH OF THE HONBLE ALLAHABAD HI GH COURT RENDERED IN THE CASE OF CIT VS. DEVESH SINGH (SUPRA) DATED 23.07.2012 IS AT VARIANCE WITH THESE TWO JUDGMENTS OF THE DIVISION BENCH OF THE HONBLE ALLAHABAD HIGH COURT, WE HAVE TO FOLLOW THE JUDGMENT OF LARGER BENCH OF THE HONBLE ALLAHABAD HIGH C OURT IN PREFERENCE TO THESE TWO JUDGMENTS OF THE DIVISION BENCH OF THE HONBLE HIGH COURT AND AS PER THIS JUDGMENT OF THE LARGER BENCH OF THE HONBLE ALLAHABAD HIGH COURT, THE ISSUE IN DISPUTE IS COVERED AGAINST THE ASSESSEE BECAUSE IT WAS HELD BY LARGER B ENCH OF THE HONBLE ALLAHABAD HIGH COURT IN THAT CASE THAT EVEN WHERE THE WARRANT OF AUTHORIZATION HAS BEEN ISSUED JOINTLY, THE ASSESSMENT CAN BE MADE INDIVIDUALLY. 7. NOW, WE ARE LEFT WITH THE JUDGMENT OF THE HONBLE APEX COURT RENDERED IN THE CASE OF CI T VS. MADHU CHAWLA (SUPRA) IN COURSE OF DECIDING THE SLP FILED BY THE REVENUE AGAINST THE 7 JUDGMENT OF THE HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF MADHU CHAWLA (SUPRA). WE FIND THAT AS PER THIS JUDGMENT OF THE HONBLE APEX COURT, THE SLP OF THE REVENUE WAS DISMISSED WITHOUT ANY DISCUSSION AND THIS IS BY NOW A SETTLED POSITION OF LAW THAT WHEN THE SLP IS DISMISSED BY THE HONBLE APEX COURT WITHOUT ANY DISCUSSION, SUCH JUDGMENT OF HONBLE APEX COURT IS BINDING IN THE CASE IN WHICH IT WAS RENDERED BUT DOES NOT LAY DOWN A LAW OF LAND. MOREOVER, THE DIVISION BENCH JUDGMENTS OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. VANDANA VERMA (SUPRA) AND MADHU CHAWLA (SUPRA) WERE RENDERED PRIOR TO INSERTION OF SECTION 292CC IN THE INCOME TAX ACT BY FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM 01.04.1976 AND BOTH THE JUDGMENTS WERE RENDERED PRIOR TO THIS AMENDMENT IN I.T. ACT. IT DOES NOT COME OUT THAT THE SUBSEQUENT RETROSPECTIVE AMENDMENT IN THE INCOME TAX ACT WAS BROUGHT TO THE NOTICE OF THE H ONBLE APEX COURT IN THE COURSE OF DECISION ON THE SLP FILED BY THE REVENUE IN THE CASE OF CIT VS. MADHU CHAWLA AND THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THIS JUDGMENT OF THE HONBLE APEX COURT IS NOT RELEVANT IN THE PRESENT CASE BECAUSE THE SAM E IS WITHOUT ANY DISCUSSION AND WITHOUT EXPLICITLY CONSIDERING THE SUBSEQUENT RETROSPECTIVE AMENDMENT IN THE INCOME TAX ACT BY INSERTING SECTION 292CC. 8. AS PER ABOVE DISCUSSION, WE HAVE SEEN THAT THE ISSUE IN DISPUTE AS PER GROUND NOS. 1 AND 2 IS COVE RED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE BY THE JUDGMENT OF LARGER BENCH OF THE HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF CIT VS. DEVESH SINGH (SUPRA) AND RESPECTFULLY FOLLOWING THE SAME, WE DECLINE TO INTERFERE IN THE ORDER OF THE LD. CIT (A) ON THIS ISSUE. ACCORDINGLY, GROUNDS NO. 1 AND 2 OF THE ASSESSEE ARE REJECTED. 8. SINCE THE FACTS AND THE ARGUMENTS ARE SIMILAR, WE DO NOT FIND ANY REASON TO TAKE A CONTRARY VIEW IN THE PRESENT CASE AND THEREFORE, IN LINE WITH OUR DECISION IN THAT CASE, IN THE PRESENT CASE ALSO , THIS ISSUE IS DECIDED AGAINST THE ASSESSEE AND ACCORDINGLY ADDITIONAL GROUND IS REJECTED. 9. REGARDING THE ISSUE ON MERIT RAISED BY THE ASSESSEE IN GROUND NO. 1 TO 4 IN THE MEMO OF APPEAL, WE FIND THAT IN PARA 3.2.2 OF HIS ORDER, 8 IT IS NOTED BY LEARNED CIT(A) THAT AS PER THE DETAILS OF THE TRANSFER OF MONEY, AS SUBMITTED BY THE ASSESSEE, IT IS SEEN THAT IT DOES NOT GIVE THE NAME OF THE REMITTER MR. J. S. PAWAR, WHO IS THE ALLEGED DONOR. IT IS NOTED BY CIT(A) THAT TH E DOCUMENTS STATE THAT THE ORDERING CUSTOMER IS ZAHRAT AL KHALEEJ EST OF DUBAI WHEREAS THE ALLEGED DONOR IS MR. J. S. PAWAR OF U.K. UNDER THESE FACTS, IT IS HELD BY LEARNED CIT(A) THAT THE ASSESSEE HAS FAILED TO EVEN PROVE THE IDENTITY OF THE ALLEGED DONO R BECAUSE THE ASSESSEE HAS FAILED TO SUBMIT A COPY OF THE BANK STATEMENT OF MR. J. S. PAWAR, WHICH COULD PROVE THAT THE ALLEGED MONEY WAS TRANSFERRED FROM HIS BANK ACCOUNT. HE HAS ALSO GIVEN A FINDING THAT THE RELATIONSHIP OF THE DONOR AND THE ASSESSEE WA S NOT ESTABLISHED. IN THE BRIEF SYNOPSIS FILED BY THE LEARNED AR OF THE ASSESSEE , IT IS SUBMITTED THAT THE ALLEGED D ONOR MR. J. S. PAWAR IS FRIEND OF THE ASSESSEE BUT NO EVIDENCE IN THIS REGARD HAS BEEN BROUGHT ON RECORD. IT IS ALSO STATED BY LEARNED A. R. OF THE ASSESSEE IN THE BRIEF SYNOPSIS THAT THE DONOR IS A PERSON OF MEANS AS SUPPORTED BY THE FINANCIAL DOCUMENTS OF THE BUSINESS/INSTITUTION RUN BY HIM AND O N PAGE NO. 25 OF THE PAPER BOOK IS A LIST OF COMPANIES STATED TO BE OWNED BY MR. J. S. PAWAR BU T THAT IS MEANINGLESS BECAUSE THE ASSESSEE COULD NOT PROVE THAT THE MONEY IN QUESTION HAS BEEN TRANSFERRED FROM THE BANK ACCOUNT OF THE SAID DONOR MR. J. S. PAWAR OR OF THE ENTITIES OWNED BY THE SAID DONOR. THE ASSESSEE HAS NOT BROUGHT ON RECORD THE BANK STATEMENT OF THE SAID DONOR OR THE CONCERNED ENTITY OWNED BY THE SAID DONOR. COPY OF THE AFFIDAVIT CUM GIFT DEED OF MR. J. S. PAWAR IS AVAILABLE ON PAGE NO. 15 OF THE PAPER BOOK AS PER WHICH HE IS RESIDING AT KENT U.K. AND IT IS STATED THEREIN THAT IN CON SIDERATION OF NATURAL LOVE AND AFFECTION, HE HAS GIFTED A SUM OF POUNDS 7,000 TO THE ASSESSEE BUT IN THIS AFFIDAVIT CUM GIFT DEED ALSO, IT IS NOWHERE STATED THAT HE IS FRIEND OR RELATIVE OF THE ASSESSEE. THIS IS ALSO NOT STATED IN THE AFFIDAVIT CUM GIFT D EED THAT THE MONEY HAS BEEN TRANSFERRED FROM THE BANK ACCOUNT OF THE SAID DONOR. IN VIEW OF THIS 9 POSITION NOTED BY LEARNED CIT(A) THAT AS PER THE DETAILS OF THE TRANSFER OF THE MONEY AS SUBMITTED BY THE ASSESSEE, IT IS SEEN THAT IT DOES NOT GIVE THE NAME OF REMITTER WHO IS ALLEGED DONOR AND IN FACT THE DOCUMENT STATES THAT THE ORDERING CUSTOMER IS ZAHRAT AL KHALEEJ EST OF DUBAI. CONSIDERING ALL THESE FACTS, WE FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THE IDENTITY OR CREDITWORTHINESS OF THE SAID DONOR AND HE ALSO COULD NOT ESTABLISH THE GENUINENESS OF THE TRANSACTION IN THE FACTS OF THE PRESENT CASE . IN FACT, AS PER THE DETAILS PROVIDED BY THE ASSESSEE HIMSELF, THE ORDERING CUSTOMER IS NOT THE ALLEGED DONOR BUT A DIFFERENT PERSON OF DUBAI. 1 0. IN THE LIGHT OF THESE FACTS , NOW WE EXAMINE THE APPLICABILITY OF THE TRIBUNAL DECISION IN THE CASE OF RAJ KUMAR ARORA (SUPRA), ON WHICH RELIANCE HAS BEEN PLACED BY LEARNED A.R. OF THE ASSESSEE. WE FIND THAT IN THIS CASE, A CLEAR FINDING IS GIVEN BY THE TRIBUNAL THAT THE IDENTITY OF THE DONOR IS ESTABLISHED AS ALL THE THREE DONORS ARE INCOME TAX ASSESSEE AND CREDITWORTHINESS IS ALSO THERE. ON PAGE NO. 3 OF THE SAID TRIBUNAL ORDER, IT IS NOTED THAT THE ASSESSEE HAS ALSO FILED COPIES OF RETURN FOR THE REL EVANT ASSESSMENT YEAR IN RESPECT OF DONOR WHICH SHOWS SUBSTANTIAL AMOUNT OF INCOME AND CAPITAL WITH THEM. IN THE PRESENT CASE, NO SUCH DOCUMENT ABOUT THE ALLEGED DONOR HAS BEEN BROUGHT ON RECORD . IN FACT, AS PER THE DETAILS PROVIDED BY THE ASSESSEE HIMSE LF, THE ORDERING CUSTOMER FOR MONEY TRANSFER IS NOT THE ALLEGED DONOR BUT A DIFFERENT PERSON OF DUBAI. U NDER THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THIS TRIBUNAL DECISION IS DISTINGUISHABLE ON FACTS AND THEREFORE, THE SAME IS NOT APPLICABLE IN THE PRESENT CASE. 11. AS PER THE ABOVE DISCUSSION, WE HAVE SEEN THAT IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAS FAILED TO ESTABLISH THE IDENTITY AND CREDITWORTHINESS OF THE DONOR AS WELL AS THE GENUINENESS OF THE 10 TRANSACTION AND THE TRIBUNAL DECIS ION CITED BY LEARNED A.R. OF THE ASSESSEE IS NOT APPLICABLE IN THE PRESENT CASE. HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /09/2015 SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR