Sh. Kuljit Singh Arora (HUF), New Delhi V. ITO, New Delhi

ITA 2843/DEL/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 6867 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 22-12-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 08-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Unexplained investment; Gift; Income from undisclosed sources; Question of law; Onus to prove
• Section: 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : D NEW DELHI SHRI J.SUDHAKAR REDDY, A .M AND SHRI RAJPAL YADAV , JM ITA NO: 2843/DEL/2015 AY : - 200 3 - 04 KULJIT SINGH ARORA (HUF) VS. ITO 8/3, WEA, ABDUL AZIZ ROAD WARD - 33(2) KAROL BAGH C.R. BUILDING NEW DELHI - 110 005 NEW DELHI PAN AAAHK5505J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.S. SINGHVI & SHRI SATYJIT GOEL, CA RESPO NDENT : S HRI RAJESH KUMAR, SR . DR O R D E R PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) XVII , NEW DELHI DATED 25.3.2015 FOR THE ASSESSMENT YE AR 2003 - 04 . 2. THE HON BLE DELHI HIGH COURT IN ITA NO. 136 OF 2014 ORDER DATED 21.4.2014 HAS SET ASIDE THE MATTER TO THE LD. CIT(A) WITH THE FOLLOWING DIRECTIONS : AS FAR AS THE GROUNDS URGED WITH RESPECT TO REOPENING OF THE ASSESSMENT , THIS COURT IS O F THE OPINION THAT NO FAULT CAN BE FO UND WITH T H E REASONING OF THE TRIBUNAL. HOWEVER, ON THE MERITS, THIS COURT NOTICES THAT NEITHER CIT(A) NOR THE ITAT IN FACT DISCUSSED THE MATERIALS PLACED ON RECORD BY THE ASSESSEE . FACTUALLY, THE AO S ORDER WOULD DISCL OSE THAT THE ASSESSEE S DOCUMENTS IN RESPECT OF VARIOUS GIFTS RECEIVED BY HIM HAD BEEN DISCUSS ED BUT REJECTED. IN THESE CIRCUMSTA N C ES, IT WAS INCUMBENT UPON THE APPELLATE BODIES I.E. CIT(A) AND ITAT TO ADVERT TO THE MERITS OF THE ASSESSEE S CONTENTIO N S WIT H RESPECT TO THE MATERIALS EITHER IN CONFIRMING THE AO S ORDER FULLY OR PARTLY ACCEPTING THE APPELLANT S CONTENTIONS. THAT HAS NOT HAPPENED : CONSEQUENTLY ITA 2843/DEL/2015 AY 2003 - 04 2 THIS COURT HEREBY DIRECTS THE MATTER TO BE REMITTED TO THE CIT(A) WHO SHALL CONSIDER THE MERITS OF TH E APPEAL FOR AY 2003 - 04 IN RESPECT OF THE PR4OPOSED ADDITIONS AND THEREAFTER MAKE THE ORDER ON MERITS. ALL RIGHTS AND CONTENTIONS OF THE PARTIES ARE RESERVED. THE APPEAL IS PARTLY ALLOWED IN THE ABOVE TERMS. (EMPHASIS OURS) 3. LD. CIT(A) VIDE HIS IMPUGNED ORDER HAS CONFIRMED THE ORDER OF THE AO. AGGRIEVED THE ASSESSEE IS BEFORE US ON THE FOLLOWING GROUNDS : - 1 (I). THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING ADDITION OF RS. 33 LACS IN RESPECT OF REA SSESSMENT PROCEEDINGS U / S. 148 OF THE LT. ACT, 1961. (II) THAT ADDITIONS SUSTAINED BY THE CIT(A) IS IN TOTAL DISREGARD TO DIRECTION OF HON'BLE DELHI HIGH COURT AS PER WHICH CIT( A) WAS DIRECTED TO RECORD THE FIN DING ON MERITS IN RESPECT OF MATERIAL AVAI LABLE ON RECORD AND ON THE BASIS OF WHICH PROCEEDINGS WERE INITIATED U/S, 148 OF THE INCOME TAX ACT, 1961. 2. THAT THE CIT(A) HAS INITIATED THE FRESH ENQUIRY IN AN ILLEGAL AND PREJUDICIAL MANNER EVEN THOUGH ALL THE RELEVANT DOCUMENTS FOR ADJUDICATION OF GENUINENESS OF THE GIFT WERE ON RECORD. 3. THAT THIS IS A CASE OF REASSESSMENT AND THE PRIMARY ONUS IS ON THE REVENUE AUTHORITIES TO BRING ON RECORD ANY EVIDENCE IN SUPPORT OF ALLEGATION OF UNDISCLOSED INCOME AND IN THE ABSENCE OF SAME, THERE IS NO GROUND OR BASIS FOR IMPUGNED ADDITION. 4. THAT IN ANY CASE, THERE IS NO DISPUTE ABOUT GENUINENESS AND JUSTIFICATION OF GIFT AS PER DOCUMENTS PLACED ON RECORD AND IN THE ABSENCE OF ANY DISPUTE OR CONTRARY FINDING IN RESPECT OF SUCH EVIDENCE, THERE IS NO GROUND O R BASIS FOR ANY ADDITION U1S. 68 OF THE LT ACT, 1961. 5. THAT FACTS OF THE CASE WERE NOT PROPERLY APPRECIATED AND EVEN NO PROPER OPPORTUNITY WAS ALLOWED AND AS SUCH WHOLE BASIS OF ADDITION IS ILLEGAL, ARBITRARY AND MISCONCEIVED. 6. THAT ORDER OF THE CIT (A) IS NOT JUSTIFIED ON FACTS AND SAME ARE BAD IN LAW. 4. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT( A) HAS IN TOTAL DISREGARD OF THE DIRECTIONS GIVEN BY THE LD. HIGH COURT , STARTED INDEPENDENT INVESTIGATION INTO THIS CASE, WITHOUT CONSIDER ING THE FACTS AND MATERIAL AVAILABLE ON ITA 2843/DEL/2015 AY 2003 - 04 3 RECORD. HE SUBMITTED THAT THE LD. CIT(A) HAD , WHEN THE ASSESSEE WENT FOR REPRESENTING HIS CASE IN APPEAL, STARTED RECORDING A S WORN STATEMENT , BY ASKING MANY QUESTIONS WITH AN OBJECT OF PUTTING MENTAL PRESSURE AND TO INTIMIDATE THE ASSESSEE. HE SUBMITTED THAT QUESTIONS AS TO THE COL OUR, PHYSIQUE WEIGHT , NUMBER OF CHILDREN ETC. OF THE DONORS WERE ASKED THEREBY CONFUSING THE ASSESSEE AND DISTURBING HIS FLOW OF THOUGHTS. HE VEHEMENTLY CONTENDS THAT THE ASSESSEE H AS FILED OVERWHELMING EVIDENCE IN THE FORM OF AFFIDAVIT S OF DONOR , GIFT DEEDS, ACKNOWLEDGEMENT OF ITRS AND PAN NOS. OF DONORS AND COPY OF THEIR STATEMENT OF BANK ACCOUNT ETC. IN PROOF OF THE FACT THAT THE GIFTS RECEIVED BY A SSESSEE ARE GENUINE. HE ARGUE D T H A T NONE OF THESE EVIDENCES OR DOCUMENTS HAVE BEEN CONTROVERTE D BY THE AO OR BY THE LD. CIT (A) DESPITE THE SPECIFIC DIRECT IONS OF THE HIGH COURT. HE SUBMITTED THAT NO EVIDENCE HAD BEEN COLLECTED BY THE REVENUE TO DISPROVE OR DISCREDIT THE EVIDENCES PR ODUCED BY THE ASSESSEE. HE CONTENDED THAT THE ENTIRE ADDITION IS MADE BASED ON SURMISE AND CONJECTURES . HE RELIED ON THE FOLLOWING CASE LAWS : - I ) CIT VS. MS. MAYAWATI (2011) 338 ITR 0563 II ) CIT VS. VRINDAVAN FARMS (P) LTD. ITA 84/2015 III ) CIT VS. R.S. SIBAL (2004) 269 ITR 429 (DEL) 5. HE FURTHER SUBMITTED THAT THIS IS A CA S E OF REOPENING OF ASSESSMENT AND THE PRIMARY ONUS OF PROVING THAT THERE WAS AN ESCAPEMENT OF INCOME , IN A CASE OF REOPENING OF ASSESSMENT , LIES WITH THE REVE N UE AND THAT THIS ONUS HA S NOT BEEN DISCHARGED. FOR THIS PREPOSITION HE RELIED UPON THE FOLLOWING CASE LAWS : ITA 2843/DEL/2015 AY 2003 - 04 4 I ) COMMISSIONER OF INCOME - TAX V. PRADEEP KUMAR GUPTA [2008] 303 ITR 95 (DEL) II ) CIT VS. R.S. SIBAL (2004) 269 ITR 429 (DEL) 6. LD . DR ON THE OTHER HAND STRONGLY CONTROVERTED TH E SUBMISSIONS OF THE ASSESSEE AND POINTED OUT THAT THE ASSESS EE HAS NOT COOPERATED IN THE APPELLATE PROCEEDINGS. HE P OINTED OUT THAT MORE THAN 10 TI M E S THE LD. CIT(A) HAD SOUGHT THE ASSES S EE S PRESENCE BUT IT WAS NOT COMPLIED WITH. HE ARGUED THAT THE H ON BLE HIGH C OURT HAS NOT PROHIBITED THE LD. CIT(A) FROM CONDUCTING INDEPENDENT INVESTIGATION. ON THE CLAIM OF THE ASSESSEE THAT HE HAS ALSO GIVEN GIFTS TO THESE DONORS ON CERTAIN OCCASIONS, HE SUBMITTED THAT THE ASSESSEE HAS RECEIVED GIFTS FROM JULY, 20 02 TO DECEMBER, 2002 FROM VARIOUS PERSON S AND THE OCCASIONS ON SUCH GIFTS WERE RECEIVED IS NOWHERE BROUGHT OUT IN THE EVIDENCES FILED BY THE ASSESSEE. HE SUBMITTED THAT THE THEORY OF HUMAN PROBABILITIES IF APPLIED, WOULD LEAD TO A CONCLUSION THAT THE CLAIM OF THE ASSESSEE IS FALSE AND FABRICATED. 7. HE RELIED ON THE ORDER OF THE AO AS WELL AS THE LD. CIT(A) AND ARGUED T H A T , MERE FILI NG OF EVIDENCE I.E. GIFT DEEDS , PAN NOS. E TC. DOES NOT DEMONSTRATE T HE GENUINENESS OF THE TRANSACTION AS HELD BY THE HON BLE H IGH COURT IN NUMEROUS CASE LAWS. HE PRAYED THAT THE ORDER OF THE LD. CIT(A) BE UPHELD. 8. IN RESPONSE , THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT, NEITHER THE AO NOR THE CIT(A) DOUBTED OR DISPUTED THE CORRECTNESS OF THE DOCUMENTARY EVIDENCE PRODUCED BEFORE THEM. HE SUBMITTED THAT THE REVENUE SHOULD HAVE EXAMINED THE EVIDENCE FILED BY THE DONORS AS DIRECTED BY THE HON BLE HIGH COURT, INSTEAD OF ITA 2843/DEL/2015 AY 2003 - 04 5 STARTING FRESH INVESTIGATION ALL BY HIMSELF BY RECORDING STATEMENTS AND THEREAFTER COMING TO CONCLUSION BASE D ON SURMISES AND CONJECTURES. 9. AFTER HEARING RIVAL CONTENTIO N S WE HOLD AS FOLLOWS : LD. CIT(A) IN OUR VIEW HAS STARTED RECORDING THE STATEMENT FROM THE ASSESSEE KULJEET SINGH ARORA IN A MANNER IN WHICH THE ASSESSEE WOULD GET CONFUSED AND PUT IN A TENSED CONDITION. THE CORRECT COURSE OF ACTION IN OUR VIEW WOULD HAVE BEEN FOR THE LD. CIT(A) TO DIRECT THE AO TO VERIFY THE DOCUMENTS AND EVIDENCE FILED BY THE ASSESSEE. NO DO U B T EVERY EFFORT SHOULD BE MADE, TO KNOW THE TRUTH ABOUT THE CLAIM OF THE ASSESSEE BUT THIS TYPE OF QUESTIONING, WHICH TAKES THE ASSESSEE BY SURPRISE IN OUR VIEW , IS NOT DESIRABLE. IT LEADS TO INTIMIDATION OF THE PERSON. SUCH A STATEMENT, WITHOUT CORROBORATIVE EVIDENCE CANNOT BE THE BASIS FOR RE JECTING THE EVIDENCE FILED BY THE ASSESSEE . 10. I N OUR VIEW MUCH DOES NOT T URN ON THE STATEMENT RECORDED ON 3 RD MARCH, 2015 BY THE LD. CIT(A ) FROM THE ASSESSEE, WHICH IS PLACED AS AN ANNEXURE 2. THIS LEAVES US WITH THE EVIDENCES FI LED BY THE ASSESSEE AND THE DIREC TION OF THE HON B LE HIGH COURT THA T THE MATERIAL PLACED ON THE RECORD BY THE ASSESSEE HAS TO BE EXAMINED BY T HE APPELLATE AUTHORITIES. T HE APPELLATE AUT HORITY DID NOT ADVERT TO THE ASSESSEE S CONTENTIONS WITH RESPECT TO THE MATERIAL FILED BY HIM. EACH GIFT AND EACH DONOR HAS NOT BEEN IND EPENDENTLY EXAMINED AND EVALUATED. T H E ENTIRE ADDITION HAS BEEN SUSTAINED ON THE GROUND THAT THE ASSESSEE HAS NOT GIVEN COGENT ANSWERS , WHEN THE LD. APPELLATE AUTHORI TI ES EXAMINED HIM ON OATH AND ON THE BASIS OF THE THEORY OF HUMAN PROBABILITIES. CONCLUSI ONS ARE DRAWN WITHOUT COLLECTING ANY ITA 2843/DEL/2015 AY 2003 - 04 6 MATERIAL OR EVIDENCE TO DISPROVE THE CLAIM OF THE ASSESSEE. THE EVIDENCE FILED HAS NOT BEEN DISCREDITED. 11. THE LIST OF EVIDENCES P RODUCED BY THE ASSESSEE ARE AS FOLLOWS : - 1 . SUSHIL KUMAR KASHYAP I . GIFT DEED II. AFFIDA VIT III . C.A. CERTIFICATE IV . INCOME TAX RETURN 2 . B.K. SALOOJA I . GIFT DEED II . AFFIDAVIT III . INCOME TAX RETURN IV . COPY OF DRIVING LICENCE V . ELECTION CARD VI . RATION CARD 3 . PARMINDER SINGH I . GIFT DEED II . AFFIDAVIT III . INCOME TAX RETURN IV . RATION CARD V . BALANCE SHEET 4 . KAMAL DHAWAN I . GIFT DEED II . AFFIDAVIT III . IN COME TAX RETURN & BALANCE SHEET IV . RATION CARD V . PAN APPLICATION FORM 5 . AJAY KAPAHI I . GIFT DEED II . AFFIDAVIT III . INCOME TAX RETURN IV . PAN APPLICATION FORM V . NOTICE OF DEMAND U/S 221 (1) 6 . SANJAY GUPTA I . GIFT DEED II . AFFIDAVIT III . INCOME TAX RETURN 7 . DINESH SHARMA I . GIFT DEED II . AFFIDAVIT III . INCOM E TAX RETURN IV . PAN APPLICATION FORM V . BANK STATEMENT VI . BALANCE SHEET 8 . DAYANAND JHA I . GIFT DEED ITA 2843/DEL/2015 AY 2003 - 04 7 II . AFFIDAVIT III . INCOME TAX RETURN IV . PAN APPLICATION FORM V . BANK STATEMENT VI . BALANCE SHEET 9 . SANJAY BENGANI I . GIFT DEED II . AFFIDAVIT III . INCOME TAX RETURN IV . PAN APPLICATION FORM V . BANK STATEMENT VI . BALANCE SHEET 10 . RANJIT SINGH I . GIFT DEED II. AFFIDAVIT III INCOME TAX RETURN IV . BANK STATEMENT V . BALANCE SHEET 11 . SUSHIL KUMAR CHALLANI I . GIFT DEED II . AFFIDAVIT III . PAN APPLICATION FORM IV . BANK STATEMENT V . BALANCE SHEET 12 . SANJAY DAKANIA I . GIFT DEED II . AFFIDAVIT III . INCOME TAX RETURN IV . BANK STATEMENT V . BALANCE SHEET VI PAN APPLICATION FORM 13 . MOOLCHAND JAIN I . GIFT DEED II . AFFIDAVIT III . INCOME TAX RETURN IV . BANK STATEMENT VI BALANCE SHEET VI . PAN APPLICATION FORM 14 . PROMILA MEHRA I . AFFIDAVIT 12. NEITHER THE AO NOR THE LD. CIT(A) HAVE BROUGHT ON RECORD ANY E VIDENCE, TO CONTROVERT THE GENUINENESS OF THE EVIDENCE SUBMITTED BY THE ASSESSEE. THERE IS NO EXERCISE DONE TO DISPROVE THE CLAIM OF THE ASSESSEE BY EXAMINING THESE PERSONS. THE THEORY OF PREPONDERANCE OF PROBABILITIES CANNOT BE APPLIED WITHOUT EXAMINING THE EVIDENCES FILED AND REJECTED THE SAME. ITA 2843/DEL/2015 AY 2003 - 04 8 13. WE NOW DISCUSS THE CASE LAWS RELIED ON BEFORE US : - 1 . CIT VS. R.S. SIBAL, 269 ITR 429 (DEL) : - CASH CREDITS - APPEAL TO HIGH COURT - EXPLANATION THAT CREDITS IN ACCOUNTS REPRESENTED GIFTS - GIFT DEEDS AND AFFIDAVITS OF DONORS FURNISHED TRIBUNAL JUSTIFIED IN DELETING ADDITION NO SUBSTANTIAL QUESTION OF LAW - INCOME TAX ACT, 1961. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 1994 - 95, THE ASSESSING OFFICER NOTICE D TWO DEPOSITS OF RS. 7 LAKHS AND RS. 2.25 LAKHS ON JULY 8, 1993 AND AUGUST 12, 1993. RESP ECTIVELY IN THE ASSESSEE'S BANK ACCOUNT. THE ASSESSEE WAS REQUIRED TO EXPLAIN THE SOURCES OF THE TWO AMOUNTS. IT WAS STATED BY THE ASSESSEE THAT THESE AMOUNTS WERE RECEIVED BY WAY OF GIFTS FROM TWO NR IS S AND M, IN SUPPORT, COPIES OF THE GIFT DEEDS, AFFIDAVITS OF THE DONORS, EXTRACTS FROM THEIR BANK ACCOUNTS AND BANK CERTIFICATE WITH RECONFIRMATION LETTERS WERE FILED BY THE ASSESSEE. OBSERVING THAT, IN SPITE OF VARIOUS OPPORTUNITIES, THE ASSESSEE COULD NOT ESTABLISH ANY RELATIONSHIP, NATURAL OR MAN - MADE, WITH THE SO CALLED DONORS, THE ASSESSING OFFICER ADDED THE AMOUNTS TO THE TOTAL INCOME OF THE ASSESSEE BY TAKING RECOURSE TO SECTION 68 OF THE INCOME - TAX ACT. 1961. THE COMMISSIONER ( A PPEALS) DELETED T HE ADDITIONS .. INTER ALIA, OBSERVING THAT THE EVIDENCE ADDUCED BY THE ASSESSEE WAS NEITHER CONTROVERTED NOR WAS IT PROVED TO BE FALSE, AND THE ASSESSING OFFICER HAD TREATED THE GIFT AS NOT GENUINE MERELY ON SUSPICION, THE TRIBUNAL AFFIRMED THE VIEW TAKEN BY THE COMMISSIONER ( APPE AL S ). ON FURTHER APPEAL TO THE HIGH COURT : HELD, DISMISSING THE APPEAL, THAT THE ONLY GROUND ON WHICH THE GENUINENESS OF THE GIFTS HA D BEEN DOUBTED WAS THE ALLEGED FAILURE ON THE PART OF THE ASSESSEE TO ESTABLISH RELATIONSHIP BET WEEN TH E DONOR AND THE DONEE. BOTH THE LOWER APPELLATE AUTHORITIES HAD RECORDED A CATEGORICAL FINDING THA T BY PRODUCING THE DOCUMENTS, THE ASSESSEE HAD DISCHARGED THE ONUS WHICH LAY ON HIM WITH REGARD T O THE GENUINENESS OF THE GIFTS. THE ITA 2843/DEL/2015 AY 2003 - 04 9 INFERENCE DRAWN BY THE APPELLATE AUTHORITIES, ON THE APPRECIATIO N OF EVIDENCE WAS FACTUAL, GIVING RISE TO NO QUESTION OF LAW MUCH LESS A SUBSTANTIAL QUESTION OF LAW. (H) CIT VS. SURESH KUMAR KAKAR (2010), 324 ITR 231 (DEL) : - THE POINTS IN ISSUE WERE GIFTS TOTALLING TO RS .24.77 LAKHS MADE BY THE MOTHER OF THE ASSESSEE IN FAVOUR OF THE ASSESSEE DURING THE FINANCIAL YEAR 1999 - 2000. THE ASSESSING OFFICER REJECTED THE CONTENTION OF THE ASSESSEE THAT THESE WERE GIFTS MADE BY THE MOTHER AND HELD THE SAME TO BE UNACCOUNTED INCOME OF THE ASSESSEE. THE TRIBUNAL DELETED THE ADDITION. HELD, THAT THE TRIBUNAL HAD CORRECTLY CONCLUDED THAT THE AUTHORITIES BELOW HAD IGNORED THE FACT THAT THERE WAS A BLOOD RELATIONSHIP (MOTHER - SON) BETWEEN THE DONOR AND THE DONE, THAT THE GIFTS ARE NORMAL LY MADE BY PARENTS TO CHILDREN THROUGH LOVE AND AFFECTION AND DO NOT NECESSARILY REQUIRE ANY PARTICULAR OCCASION, THAT THE GIFTS IN THE PRESENT CASE WERE ALL MADE BY CHEQUES AND THROUGH BANKING CHANNELS. THE TRIBUNAL RIGHTLY HELD THAT WHEN THE IDENTITY AND THE CAPACITY WERE PROVED BEYOND DOUBT AND THE SOURCE OF THE GIFTS WAS THE MOTHER, THERE WAS NO QUESTION OF MAKING THE ADDITION U/S 68.' 11. APPLYING THE PROPOSITIONS LAID DOWN IN THESE CASE LAWS TO THE FACTS OF THE CASE, WE UPHOLD THE CONTENTION OF THE A SSESSEE FOR THE REASON THAT, THE ASSESSEE HAS LEAD SUFFICIENT EVIDENCE IN SUPPORT OF HIS CLAIM AND WHERE AS THE ASSESSING OFFICER HAS NOT CONDUCTED ANY ENQUIRY OR INVESTIGATION OR GATHERED ANY MATERIAL TO DISPROVE THE CLAIM OF THE ASSESSEE. ONCE THE ASSESS EE FURNISHES ALL THE REQUIRED EVIDENCES, THE BURDEN OF PROOF WHICH INITIALLY LAY ON HIM IS DISCHARGED AND THEN THE ONUS SHIFTS TO THE REVENUE AND IN THIS CASE THE REVENUE HAS NOT DISCHARGED THE ONUS THAT LAY ON IT. IN THE RESULT GROUND NO.1 OF THE APPEAL I S ALLOWED . (ILL) CIT VS. MS.MAYA WATL, 12 T AXMAN 306 (DEL) SECTION 69 OF THE INCOME TAX ACT, 1961 - UNEXPLAINED INVESTMENTS - ASSESSMENT YEAR 2003 - 04. DURING RELEVANT ASSESSMENT YEAR, ASSESSEE ITA 2843/DEL/2015 AY 2003 - 04 10 RECEIVED A GIFT OF RS. 2 LACS IN CASH FROM 'P' - ASSESSEE ALSO RE CEIVED GIFTS OF IMMOVABLE PROPERTIES FROM 'V' AND 'A' -- ASSESSING OFFICER TOOK A VIEW THAT DONORS DID NOT HAVE CAPACITY TO MAKE GIFTS IN QUESTION -- HE FURTHER NOTICED THAT THERE WAS NO RELATIONSHIP BETWEEN THE DONORS & THE DONE AND GENUINENESS OF TRANSAC TION WAS ALSO NOT PROVED - ACCORDINGLY. AO MADE ADDITION TO ASSESSEE'S INCOME UNDER SECTION 69 IN RESPECT OF AFORESAID GIFTS - COMMISSIONER (APPEALS) HELD THAT ASSESSEE, HAD DULY DISCHARGED ONUS BY FILING SUBSTANTIAL DOCUMENTARY EVIDENCE INCLUDING GIFTS DE EDS, COPIES OF BANK ACCOUNTS, INCOME TAX RETURNS, SWORN AFFIDAVITS APART FROM STATING ON OATH AND REAFFIRMING GIFTS AND ALSO INDICATING AMPLY THEIR FINANCIAL STATUS - HE, THUS, DELETED ADDITION MADE BY AO TRIBUNAL UPHELD THE ORDER OF COMMISSIONER (APPEALS ) ON REVENUE S APPEAL, IT WAS SEEN THAT ALL DONOR APPEARED BEFORE DEPARTMENT, SUBMITTED MATERIAL INCLUDING AFFIDAVIT ON OATH, CONFIRMED GIFTS MADE, ESTABLISHED THEIR OLD RELATIONS WITH ASSESSEE AND PROVED THEIR CAPACITY TO MAKE GIFTS WHETHER ON FACTS, TRIBUNAL WAS JUSTIFIED IN DELETING IMPUGNED ADDITION MADE BY ASSESSING OFFICER HELD, YES. 2 . CIT VS. SUNITA VACHANI (MRS.) 184 ITR 121 (DEL) IN OUR OPINION, THE TRIBUNAL HAD, ON MERITS, COME TO THE CONCLUSION THAT THE GIFTS WERE GENUINE. THIS IS A PURE QUE STION OF FACT. THE TRIBUNAL HAS EXAMINED THE EVIDENCE WHICH WAS AVAILABLE ON FILE RECORD AND HAS ARRIVED AT THE AFORESAID FINDING. EVEN THOUGH IT MAY BE SURPRISING AS TO HOW LARGE SUMS OF MONEY ARE RECEIVED BY A FAMILY IN INDIA BY WAY OF GIFTS FROM STRANGE RS FROM ABROAD, UNLESS THERE IS SOMETHING MORE TANGIBLE THAN SUSPICION, IT WIL L BE DIFFICULT TO REGARD THE MONEY - RECEIVED IN INDIA FROM ABROAD AS REPRESENTING THE INCOME OF THE ASSESSEE IN INDIA. ON THE FACTS AS EXISTING ON THE RECORD, WE ARE UNABLE TO COM E TO THE CONCLUSION THAT ANY QUESTION OF LAW ARISES. THE PETITION IS DISMISSED. NO ORDER AS TO COSTS. ITA 2843/DEL/2015 AY 2003 - 04 11 14. LD. CIT(A) HAS RELIED ON T H E DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. P. MOHANAKALA (2007) 291 ITR 278 (SC) THIS JUDGMENT DOES NOT APPLY ON THE FACTS OF THIS CASE. IN THE CASE OF MOHAN AK ALA THE AO REBUTTED THE EVIDENCE FILED BY THE ASSESSEE IN SUPPORT OF THE IR CONTEN TIONS . THE AO CAME TO THE CONCLUSION THAT THE GIFTS ARE NOT GENUINE. NO SUCH EXERCISE HAS BEEN DONE IN THIS CASE. THAT WAS A CASE WHERE IT WAS FOUND THAT THE ASSESSEE HAD NOT DISCHARGED THE BURDEN THAT LAY ON HIM. IN THE CASE ON HAND THE ASSESSEE HAD FILED ALL THE EVIDENCES THAT ARE UNDER HIS CONTROL AND IT WAS FOR THE AO TO REBUT THESE CL AIMS BY INVESTIGATION AND GA THERING OF EVIDENCE . MERELY REJECTING THE CLAIM AS NOT BE LIEV ABLE IS NOT LEGALLY CORRECT. LD. C IT(A) COULD HAVE CALL FOR THE REMAND RE PORT SO AS TO DISPROVE T H E CLAIM OF THE ASSESSEE. THIS HAS NOT BEEN DONE. IN OUR VIEW THE ASSESSEE HAS DISCHARGED THE B URDEN OF PROOF THAT LAY ON HIM. 15. IN VIEW OF THE ABOVE DISCUSSION AND AS THE ASSESSEE HAS DISCHARGED THE BURDEN OF PROOF THAT LAY ON IT AS THE REVENUE HAS NOT DISCHARGED ONUS THAT SHIFTED TO IT WE DELETE THE ADDITION IN THIS CASE AND ALLOW THE APPEAL . IN THE RESULT THE AP PEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JANUARY, 2017 . SD/ - SD. - ( RAJPAL YADAV ) (J.SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 25.01.2017 *VEENA ITA 2843/DEL/2015 AY 2003 - 04 12 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASST . REGISTRAR