Sh. Kapil Dutt Bali, V. The Income tax Officer, Hoshiarpur

ITA 3/ASR/2001

• Counselvise Citation: 320914 RSA 2001
• Duration Of Justice: 11 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 20-03-2012
• Assessment Year: 1994-1995
• Appeal Filed On: 01-01-2001
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: RAVISH SUD
• Keywords: Gift; Opportunity of being heard; Additional evidence
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.3(ASR)/2001 ASSESSMENT YEAR:1994-95 PAN: SH. KAPIL DUTT BALI, VS. THE INCOME TAX OFFICER, C/O M/S. MAHILPUR OIL STORE, WARD 1(3), HOSHIARPU R. MAHILPUR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAVISH SUD, ADVOCATE RESPONDENT BY:SH. AMRIK CHAND, DR DATE OF HEARING :20/03/2012 DATE OF PRONOUNCEMENT:28/03/2012 ORDER PER BENCH; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A), JALANDHAR, DATED 09.10.2000 RELATING TO ASSESSMENT YEAR 1994-95. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1 THAT THE CIT(A) HAS ERRED IN CONCURRING WITH THE ITO IN NOT ACCEPTING THE GIFTS OF RS.1,39,912/-, RS.99,690/- A ND RS.1,73,000/- FROM SH. GURU DUTT BALI OF U.K., SH. B.D. BALI OF CANADA AND FROM SH. KEWAL SINGH BAINS OF USA RESPEC TIVELY AS GENUINE AND MAKING ADDITION OF THE SAME TO THE I NCOME OF THE ASSESSEE. ITA NO.3(ASR)/2001 A.Y. : 1994-95 2 I) THE CIT(A) HAS ERRED IN NOT APPRECIATING THAT RELATIONSHIP OF APPELLANT WITH THE DONORS SH. GURU DUTT BALI AND SH. B.D. BALI IS OF NEAR BLOOD RELATIONS. THEY ARE THE REAL BROTHERS OF THE FATHER OF THE ASSESSEE AND THIRD DONOR SH. KEWAL SINGH BAINS IS A LIFE LONG FAMILY F RIEND. II) THE OCCASION FOR MAKING THE GIFT HAS NOT BEEN RIGHT LY APPRECIATED. THERE COULD BE NO BETTER OCCASION FOR THIS PURPOSE THAN SENDING MONEY THROUGH BANK DRAFT AND CHEQUE WHEN THE CONSTRUCTION OF THE HOUSE WAS IN PROGRESS AND IT WAS A GREAT HELP. THESE GIFTS WERE PURELY VOLUNTARY AND NOT ON ASKING OR MOTIVATION OF ANY BO DY AND WERE SENT BY BANK DRAFTS AS DESIRED BY THE ASSE SSEE. III) THE PLEA TAKEN BY THE CIT(A) (PARA 9.2) OF THE IMPU GNED ORDER THAT KEWAL SINGH BAINS DID NOT MAKE GIFT TO A NY OF HIS RELATIVES FOR SUCH A BIG AMOUNT AND GIFT OF RS.173000/- IN FAVOUR OF THE APPELLANT WAS NOT ACCE PTABLE TO BE GENUINE, CARRIES NO WEIGHT. MAKING THE GIFT O R NOT IS A MATTER TO BE DECIDED BY A DOOR CONSIDERING HIS RE LATION AND FRIENDSHIP WITH THE DONEE. IT IS NOT INCUMBENT UPON THE DONOR THAT HE MUST MAKE A GIFT TO ANY OF HIS RE LATIVES FIRST AND THEN TO ANYBODY ELSE. IV) THAT THE CONCLUSION DRAWN BY THE A.O. (PARA 7) AND CIT(A) (PARA 9) THAT THE GIFT RECEIVED FROM THE NRI RELATIONS AND FRIENDS WERE COMPENSATORY PAYMENTS IS WHOLLY UNWARRANTED, ARBITRARY, MISPLACED AND WITHOU T ANY MATERIAL TO JUSTIFY THE ADVERSE INFERENCE. V) THAT THE LD. CIT(A) HAS ERRED IN ENTERTAINING MISUNDERSTANDING OF THE ACTUAL INCOME OF MR. KEWAL SINGH BAINS. HE IS SETTLED ABROAD SINCE 1948, OWNS MOVEABLE AND IMMOVABLE PROPERTY WORTH MILLION. IT CANNOT BE ACCEPTED THAT HE HAS AN INCOME OF 2000/- DOLLARS PER MONTH ONLY. EVEN OTHERWISE PAYMENT OF WAGES IS ON WEEKLY BASIS ABROAD AND IN ANY CASE HIS INCOME COULD NOT BE LESS THAN RS.8000/- DOLLAR A MO NTH. 2. THAT THE CIT(A) HAS ERRED IN SUSTAINING ADDITION OF RS.14,000/- ON ACCOUNT OF INCOME FROM OIL TANKER. 3. THAT CIT(A) ERRED IN CHARGING INTEREST U/S 234A AND 234B AMOUNTING TO RS.176250/-. THE SUPREME COURT HAS HEL D IN THE CASE OF CIT & ORS. VS. RANCHI CLUB LTD., DECIDED ON IST ITA NO.3(ASR)/2001 A.Y. : 1994-95 3 AUGUST, 2000 REPORTED AS (2000) 164 CTR 200 (SC) TH AT INTEREST U/S 234A AND 234B IS LEVIABLE ON THE TAX O N THE TOTAL INCOME AS DECLARED BY THE ASSESSEE IN THE RETURN AN D NOT ON THE INCOME AS DETERMINED BY THE A.O. 4. SUCH OTHER GROUNDS AS MAY BE PERMITTED TO BE URGED AT THE TIME OF HEARING. 3. THE LD. COUNSEL FOR THE ASSESSEE, SH. RAVISH SOO D, ADV. HAD FILED AN APPLICATION UNDER RULE 29 OF THE INCOME-TAX APPELLA TE TRIBUNAL RULES, 1963 PRAYING FOR ADMISSION OF THE ADDITIONAL EVIDENCES I N THE PRESENT CASE. THE SAID APPLICATION FOR THE SAKE OF CONVENIENCE IS REP RODUCED AS UNDER: THE INCOME-TAX APPELLATE TRIBUNAL, AMRITSAR BENCH, AMRITSAR. SUB: APPLICATION UNDER RULE 29 OF THE INCOME-TAX AP PELLATE TRIBUNAL RULES, 1963, PRAYING FOR ADMISSION OF AD DITIONAL EVIDENCE IN THE APPEAL OF : K.D. BALI, HOSHIARPUR VS. INCOME -TAX OFFICER, WARD- 3, HOSHIARPUR. ASSESSMENT YEAR 1994-95. RESPECTED SIR, THE ASSESSEE APPELLANT HEREIN PRAYS FOR PERMISSION OF THE HONBLE TRIBUNAL FOR FURNISHING AFFIDAVITS OF THE FOLLOWING PERSONS (HEREINAFTER REFERRED TO AS EXPLANATORY AFFIDAVITS ), BY WAY OF ADDITIONAL EVIDENCE:- 1. AFFIDAVIT OF SH. GURU DUTT BALI S/O LATE SH. MOHAN LAL BALI, R/O 85, RIPON AVENUE, HUDDERFIELD; U.K.; DATED 15.0 5.2000. 2. AFFIDAVIT OF SH. BRAHM DUTT BALI S/O LATE SH. MOHAN LAL BALI; R/O CITY OF WINNIPEG, PROVINCE OF MANITOBA; CANADA ; DATED 06.01.2000. 3. AFFIDAVIT OF SH. KEWAL SINGH BAINS S/O SH. SUNDER S INGH R/O WAVKEGAN; ILLINOIS USA; DATED 15.02.2000. THAT AFFIDAVITS OF THE AFORESAID PERSONS, (HEREIN AFTER REFERRED TO AS ORIGINAL AFFIDAVITS) IN ORDER TO SUBSTANTIATE THE GENUINENESS OF THE GIFTS SO MADE BY THEM TO THE ASSESSEE WERE FILED BY THE ASSESSEE WITH ITA NO.3(ASR)/2001 A.Y. : 1994-95 4 THE AUTHORITIES BELOW, AND THEREIN ARE ALREADY AVAI LABLE ON RECORD. HOWEVER, AS THE LOWER AUTHORITIES HAD MISINTERPRETE D THE CONTENTS OF THE SAID ORIGINAL AFFIDAVITS (SUPRA) AND HAD THERE IN DRAWN ADVERSE INFERENCES IN THE HANDS OF THE ASSESSEE, IT IS THER EFORE PRAYED THAT IN THE LIGHT OF FAIRNESS AND IN THE INTEREST OF JUST ICE, IN ORDER TO ARRIVE AT THE TRUE FACTS OF THE PRESENT CASE, SPECIFICALLY WH EN THE HONBLE TRIBUNAL IS THE FINAL FACT FINDING AUTHORITY, THE A FORESAID EXPLANATORY AFFIDAVITS (SUPRA) WHICH IT MAY BE REITERATED ARE MERELY EXPLANATORY OF THE CONTENTS OF THE ORIGINAL AFFIDAVITS WHICH ARE ALREADY AVAILABLE ON RECORD, MAY THEREIN KINDLY BE ADMITTED. IN THIS REGARD, IT IS ALSO PRAYED THAT AS THE ORIG INAL COPY OF THE EXPLANATORY AFFIDAVIT PERTAINING TO SH. GURU DUTT B ALI (PATERNAL UNCLE OF THE ASSESSE) HAD BEEN MISPLACED, THEREIN THE CER TIFIED COPY OF THE SAME MAY KINDLY BE ADMITTED, AND THE ASSESSEE THERE IN BE EXEMPTED FROM FILING OF THE ORIGINAL COPY OF THE SAME. YOURS FAITHFULLY, 28.09.2006 SD/- (KAPIL DUTT BALI) 4. THE AFFIDAVITS OF THE DONORS SH. BRAHM DUTT AND SH. KEWAL SINGH BAINS WERE ALSO FILED ALONGWITH THE SAID APPLICATIO N. THE SAID AFFIDAVITS ARE ALSO BEING REPRODUCED FOR THE SAKE OF CONVENIENCE A S UNDER: AFFIDAVIT I, BRAHM DATT BALI, S/O SH. MOHAN LAL, RESIDENT OF WINNIPEG, MANITOBA CANADA., AGED 79 YEARS PRESENTLY ON A SHOR T VISIT TO INDIA AND STAYING AT HOUSE NO.250, GURU NANAK NAGAR, HOSH IARPUR, DO HEREBY SOLEMNLY DECLARE AND AFFIRM AS UNDER: 1. THAT I MADE A GIFT OF RS.1,00,000/- (AMOUNT AFTE R CONVERTION INTO INDIAN CURRENCY) FROM CANADA IN FAVOUR OF MY G RANDSON BHAVDEEP BALI (GRANDSON OF MY REAL BROTHER) THROUGH DEMAND DRAFT DRAWN ON THE TORONTO DOMINION BANK, WINNIPEG, MANITOGO, TOWARDS THE CONSTRUCTION OF A HOUSE IN TH E NAME OF THE ONLY MALE CHILD IN MY NEPHEW/FAMILY. I HAD SWOR N AN AFFIDAVIT TO THIS EFFECT AT MANITOBA AS PER THE DRA FT RECEIVED BY ITA NO.3(ASR)/2001 A.Y. : 1994-95 5 ME THERE ACCORDING TO THE DICTATION OF THE THEN INC OME TAX OFFICER, HOSHIARPUR. 2. THAT THE GIFT WAS PURELY VOLUNTARY. IT WAS NEITH ER ON THE ASKING OF ANYBODY FOR ANY RETURN. IT WAS JUST A GESTURE OF GOODWILL FOR THE YOUNGER GENERATION FROM THE HEAD OF A JOINT HIN DU FAMILY. NO OTHER IMPRESSION INFERENCE CAN BE DRAWN FROM THI S SIMPLE GIFT MADE OUT OF MY FAMILY INCOME AS ITS HEAD. MY FAMILY OWNS MOVEABLE AND IMMOVABLE PROPERTY WORTH ABOUT 15 MILLION DOLLARS IN CANADA AND USA AND IS FULLY CAPA BLE OF MAKING SUCH A SMALL GIFT IN FAVOUR OF THE ONLY MALE CHILD IN THE FAMILY OF MY NEPHEW. 3. THAT NOW I UNDERSTAND THAT THE INCOME TAX DEPART MENT HAVE TAKEN EXCEPTION TO THE LANGUAGE OF MY ABOVE MENTION AFFIDAVIT SWORN IN CANADA AND EXPRESSED THE VIEW THAT THE GIF T WAS ON THE ASKING OF MY NEPHEW MR. KAPIL DATT BALI. THERE IS N O SUCH THING TO SURMISE. IT WAS SENT AS PER THE DRAFT DICT ATED BY THE INCOME TAX OFFICER, HOSHIARPUR AND SENT TO ME IN CA NADA TO SATISFY HIS REQUIREMENTS. IT IS MADE CLEAR THAT NOB ODY EVER ASKED FOR THE GIFT. IT WAS VOLUNTARY ACTION JUST OUT OF N ATURAL LOVE AND AFFECTION FOR THE YOUNGER GENERATION. NO WRONG IMPR ESSION OR INFERENCE SHOULD BE DRAWN FROM THE LANGUAGE OF THE EARLIER AFFIDAVIT. SD/- (DEPONENT) AFFIDAVIT I, KEWAL SINGH BAINS, S/O S. SUNDER SINGH RESIDENT OF VILLAGE GONDPUR, P.S. MAHILPUR, DISTRICT HOSHIARPUR, DO HER EBY SOLEMNLY DECLARE AND AFFIRM AS UNDER: 1. THAT I MADE A GIFT OF RS.1,73,000/- IN FAVOUR OF MASTER BHAVEDEEP BALI S/O SH. K.D BALI R/O MOHALLA GURU NA NAK NAGAR, HOSHIARPUR THROUGH N.R.I. CHEQUE ISSUED IN F AVOUR OF SH. K.D. BALI ON GONDPUR BRANCH OF PUNJAB NATIONAL BANK. 2. THAT THE GIFT WAS PURELY VOLUNTARY. IT WAS NEITH ER ON THE ASKING OF ANYBODY FOR ANY RETURN. IT WAS JUST A GESTURE OF GOODWILL FOR THE YOUNGER GENERATION DUE TO LIFE LONG RELATIONS. NO OTHER IMPRESSION INFERENCE CAN BE DRAWN FROM THIS SIMPLE GIFT MADE OUT OF MY FAMILY INCOME. I OWN MOVEABLE AND IMMOVA BLE ITA NO.3(ASR)/2001 A.Y. : 1994-95 6 PROPERTY WORTH ABOUT 60,00,000/- (RS. SIXTY LAXS) I N INDIA AND ABOUT ONE MILLION POUNDS IN U.S.A. I AM FULLY CAPAB LE OF MAKING SUCH A PALTRY GIFT IN FAVOUR OF THE GRANDSON OF MY FRIEND MR. SHIV DATT BALI. 3. THAT NOW I UNDERSTAND THAT THE INCOME TAX DEPART MENT HAVE TAKEN EXCEPTION TO THE LANGUAGE OF THE EARLIER SWRO N BY ME IN USA AND SENT AS PER THE DRAFT OF AFFIDAVIT SENT TO ME FROM INDIA AS PER THE DICTATION OF THE THEN INCOME TAX OFFICER , LOOKING INTO THIS MATTER. 4. THAT IT IS MADE CLEAR THAT NOBODY EVER ASKED FOR THE GIFT NOR ANY GIFT WAS SENT BY ME ON THE ASKING OF ANYBODY. IT WA S JUST A VOLUNTARY ACTION OUT OF NATURAL LOVE AND RELATIONSH IP WITH THE FAMILY. NO WRONG IMPRESSION OR INFERENCE SHOULD BE DRAWN FROM THE LANGUAGE OF THE EARLIER AFFIDAVIT. THIS AF FIDAVIT IS ONLY FOR CLARIFICATION OF THE EARLIER ONE. SD/- (DEPONENT) 4. THE BRIEF FACTS IN THE GROUNDS OF ASSESSEE AS AP PEARING AT PAGES 14 TO 16 OF AOS ORDER (IN RELEVANT PARAS) ARE REPRODUCE D AS UNDER: REGARDING CREDITS OF RS.139812/- ON 4.1.94 AND RS. 99690/- ON 22.01.94 IT HAS BEEN EXPLAINED THAT THESE WERE THE GIFTS RECEIVED FROM SH. GURU DATT BALI OF U.K. AND SH. B.D.BALI OF CANA DA REMITTED BY THEM FROM ABROAD IN FAVOUR OF MASTER BHAVDEEP OUT OF THEIR LOVE AND AFFECTION TO HIM. FAX COPIES OF THE AFFIDAVITS OF S H. GURU DATT BALI AND SH. BRAHM DATT BALI HAVE ALSO BEEN FILED, WHICH THEY HAVE SENT FROM ENGLAND AND CANADA RESPECTIVELY. IN BOTH THE A FFIDAVITS THE DEPONENTS HAVE STATED THAT THEY HAVE MADE THE GIFTS TO MASTER BHAVDEEP AT THE REQUEST OF SH. KAPIL DUTT BALI WHIC H MEANS THAT BOTH THE GIFTS HAVE NOT BEEN MADE VOLUNTARILY. NO RELATI ON WITH THE DONORS AND THE DONEE HAS BEEN MENTIONED. NO OCCASION FOR M AKING THE GIFTS HAS BEEN MENTIONED. GENERALLY THE PERSON HAVING NO DIRECT OR NEAR RELATION WITH THE DONEE HAS NO CAPACITY TO MAKE SUC H A HUGE GIFT WITHOUT ANY OCCASION. TE GIFT TAX ACT, 1958 DEFINES THE GIFT AS UNDER: ITA NO.3(ASR)/2001 A.Y. : 1994-95 7 GIFT MEANS THE TRANSFER BY ONE PERSON TO ANOTHER O F ANY EXISTING MOVABLE OR IMMOVABLE PROPERTY MADE VOLUNTA RILY AND WITHOUT CONSIDERATION IN MONEY OR MONEYS WORTH. THE GIFT MUST BE MADE VOLUNTARILY AS PER THE DEFINI TION OF THE GIFT; WHERE AS THE PRESENT GIFTS ARE NOT MADE VOLUNTARILY . THESE SO CALLED GIFTS ARE CONDITIONAL BECAUSE THE SAME HAVE BEEN MA DE AT THE REQUEST OF SH. KAPIL DUTT BALI FATHER OF MASTER BHAVDEEP. I N VIEW OF THESE FACTS AND THE HUGE AMOUNT INVOLVED THEREIN THE GENU INENESS OF THESE GIFTS IS NOT ESTABLISHED. THE CASH OF RS.139812/- A ND RS.99,690/- IN THIS BANK ACCOUNT ARE THEREFORE, TREATED AS UNEXPLA INED. AND ADDED TO THE INCOME OF THE ASSESSEE. THERE IS A CREDIT OF RS.173000 ON 22.6.93 IN THE AB OVE ACCOUNT. VIDE A LETTER FILED ON 9.1.97 THE ASSESSEE HAS EXPLAINED T HAT THE AMOUNT OF RS.173000 ON 22.6.93 IN SAVING ACCOUNT NO.3620 REPR ESENTS RECEIPT FROM SH. KEWAL SINGH BAINS AS TRANSFER FROM HIS NRE A/C NO.2256 WITH THE PNB GONDPUR. A CERTIFICATE FROM THE BANK H AS ALSO BEEN FILED IN CONFIRMATION OF THIS CREDIT. AN AFFIDAVIT IN THE SHAPE OF FAX FROM USA HAS ALSO BEEN FILED ON 17.3.97 IN WHICH SH . KEWAL SINGH HAS DEPOSED THAT AT THE REQUEST OF SH. KAPIL DATT B ALI HE GIFTED AN AMOUNT OF RS.173000/- BY WAY OF TRANSFER FROM HIS N RE A/C NO.2256 WITH PNB GONDPUR ON 22.6.93. HE HAS FURTHER DEPOSED THAT THIS AMOUNT WAS GIFTED BY HIM OUT OF HIS PERSONAL RELATI ONS WITH SH. BALI AND NATURAL LOVE AND AFFECTION. SH. KEWAL SINGH BAI NS WHO WAS IN INDIA DURING THE LAST WEEK OF DEC.1999 WAS PRODUCED BEFORE ME AND THIS STATEMENT WAS RECORDED. HE STATED THAT HE GIFT ED A SUM OF RS.173000/- TO SH. K.D. BALI ON 22.6.93 BUT HE ALSO CONFIRMED THAT IT WAS GIVEN TO SH. K.D. BALI AT HIS REQUEST. WHEN ASK ED TO STATE IF HE EVEN MADE GIFT TO HIS ANY OTHER FRIEND IN INDIA, H E STATED THAT HE SENT A SUM OF RS.250000 TO SH. RATTAN SINGH ABOUT 15 YEA RS BACK WHICH HE RECEIVED FROM HIM IN INDIA IN 1982 AND NO AMOUNT WA S GIVEN TO HIS ANY OTHER FRIEND. AS PER HIS VERSION, HE SENT RS.50 000 TO 60000 TO HIS OWN SISTER. ALL THESE FACTS INDICATE THAT SH. KEWAL SINGH WAS NOT HAVING THE CAPACITY OF MAKING A GIFT OF RS.173000/- TO HIS FRIEND SH. K.D. BALI AND IT WAS NOTHING BUT A COMPENSATORY PAY MENT. SH. KEWAL SINGH TRANSFERRED THE AMOUNT OF RS.173000/- AT THE REQUEST OF SH. K.D. BALI. HE DID NOT ACT SO VOLUNTARILY. HE IS ALS O NOT RELATED TO THE ASSESSEE AND THERE WAS NO OCCASION FOR MAKING SUCH A HUGE GIFT. FOR THE SAME REASON AS ALREADY DISCUSSED IN SUB PARA (I ) ABOVE IS DETAILS, ITA NO.3(ASR)/2001 A.Y. : 1994-95 8 THIS AMOUNT IS ALSO TREATED AS UNEXPLAINED AND ADDI TION OF RS.173000/- IS MADE ACCORDINGLY. 5. THE LD. CIT(A), CONFIRMED THE ACTION OF THE ASSE SSING OFFICER. 6. IT WAS ARGUED BY SH. RAVISH SOOD, ADVOCATE, APPE ARING FOR THE ASSESSEE THAT THE ASSESSEE HAD FILED THE AFFIDAVITS BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH ARE ALREADY AVAILABLE ON RECORD. BUT THE LOWER AUTHORITIES HAD MISINTERPRETED THE CO NTENTS OF THE AFFIDAVITS FILED DURING THE ASSESSMENT PROCEEDINGS AND HAD DRA WN ADVERSE INFERENCES IN THE HANDS OF THE ASSESSEE. THEREFORE, IN THE LIGHT OF FAIRNESS AND IN THE INTEREST OF JUSTICE, IN ORDER TO ARRIVE AT THE TRUE FACTS OF THE PRESENT CASE, EXPLANATORY AFFIDAVITS AS AN ADDITIONAL EVIDENCE M AY BE ADMITTED. THE LD. COUNSEL FOR THE ASSESSEE, FURTHER PRAYED TO ADMIT THE PHOTOCOPY OF THE AFFIDAVIT OF THE DONOR SH. GURU DUTT BALI SINCE THE ORIGINAL AFFIDAVIT HAD BEEN MISPLACED, ON THE SIMILAR GROUNDS MENTIONED H EREINABOVE. 7. THE LD. DR, SH. AMRIK CHAND, APPEARING FOR THE R EVENUE OPPOSED THE ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 OF T HE INCOME-TAX APPELLATE TRIBUNAL RULES, 1963 SINCE THE ORIGINAL AFFIDAVITS ARE ALREADY ON RECORD AND THE ASSESSEE DID NOT SUBMIT ANY EXPLANATION BEFORE ANY OF THE AUTHORITIES BELOW I.E. BEFORE THE AO AND THE LD. CIT(A). THE AS SESSEE CANNOT BE PERMITTED TO FILE SUCH EVIDENCES AT THIS FORUM AND NO SUFFICIENT CAUSE FOR NOT ITA NO.3(ASR)/2001 A.Y. : 1994-95 9 SUBMITTING SUCH ADDITIONAL EVIDENCES BEFORE BOTH TH E AUTHORITIES BELOW HAD BEEN ADDUCED BEFORE THIS BENCH. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE ESPECIALLY THE APPLICATION FILED BY THE ASSESSEE UN DER RULE 29 OF THE INCOME- TAX APPELLATE TRIBUNAL RULES, 1963 AND THE AFFIDAVI TS PLACED ON RECORD BEFORE US OF THE DONORS. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE COULD NOT BRING SUCH EVIDENCES OF THE RELATIONSHIP OF THE DONOR AND THE DONEE AT THE OCCASION OF THE GIFT OR DURING ASSESSMENT PR OCEEDINGS OR BEFORE THE FIRST APPELLATE LEVEL. THE SAME HAD BEEN PROCURED B Y THE ASSESSEE NOW AND HAD BEEN PLACED ON RECORD. SUCH AFFIDAVITS THOUGH E XPLANATORY IN NATURE OF THE ORIGINAL AFFIDAVITS FILED DURING THE ASSESSMENT PROCEEDINGS BUT MAY BE EXPLANATORY. THEY ARE VERY MUCH RELEVANT FOR THE P ROPER DECISION OF THE MATTER. IN THE INTEREST OF JUSTICE, WE ADMIT THE S AID ADDITIONAL EVIDENCES FILED BY THE ASSESSEE. KEEPING IN VIEW THE FACTS AND CIRC UMSTANCES OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE CONTENTS OF AFF IDAVITS FILED BY THE ASSESSEE AS AN ADDITIONAL EVIDENCE, WHICH ARE PLACED ON RECO RD, HAVE TO BE EXAMINED AT THE LEVEL OF THE A.O. THEREFORE, WE DIRECT THE A .O. TO EXAMINE THE DONORS ON THE ISSUE IN DISPUTE AND THE AFFIDAVITS SO PLACE D ON RECORD AND ALSO DECIDE THE ISSUE DENOVO AFTER AFFORDING ADEQUATE AND PROPE R OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY ALL THE GROUNDS OF APPEAL OF THE ASSESSEE ITA NO.3(ASR)/2001 A.Y. : 1994-95 10 WITHOUT GOING INTO THE MERITS OF THE CASE ARE SET A SIDE TO THE FILE OF THE ASSESSING OFFICER, FOR FRESH ADJUDICATION, AS DIREC TED HEREINABOVE. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH MARCH, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28TH MARCH , 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE: SH. KAPIL DUTT BALI C/O M/S. MAHILPUR OIL STORE, MAHILPUR. 2. THE ITO WARD 1(3), HOSHIARPUR. 3. THE CIT(A), JLR. 4. THE CIT, JLR. 5. THE SR DR, ITAT, ASR. TRUE COPY BY ORDER