ITO WD 16(3)(2), MUMBAI V. MINAXIBEN PRAKASHBHAI GANDHI, MUMBAI

ITA 3108/MUM/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7352 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2003-2004
• Appeal Filed On: 12-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K BALODIA; RITA KUMARI DOKANIA
• Assessee Lawyers: R MURALIDHAR
• Keywords: Unexplained cash credit; Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, I BENCH, MUMBAI. BEFORE SHRI S.V.MEHROTRA, AM & SMT. P.MADHAVI DEVI ,JM I.T.A. NO. 3108/MUM/2009 ASSESSMENT YEAR: 2003-04 THE I.T.O. WARD 16(3)(2), V. MINAXIBEN PRAKASHBHA I GANDHI, MATRU MANDIR, TARDEO, 135, SHREEJI CHAMBERS, TAT A ROAD MUMBAI. NO.1 & 2, OPERA HOUSE, MUMBAI. PA NO.ABGPQ 4725 P (APPELLANT) (RESPONDENT) APPELLANT BY: MS RITA KUMARI DOKANIA & MR N.K.BALOD IA RESPONDENT BY : SHRI R..MURALIDHAR O R D E R PER S.V.MEHROTRA, AM THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER DATED 20.2.2009 OF LD CIT (A)-XVII, MUMBAI TREATING AMOUNT OF RS.48,23 ,304/- AS GIFT RECEIVED BY THE ASSESSEE INSTEAD OF UNEXPLAINED CASH CREDIT U/S.68 FOR THE ASSESSMENT YEAR 2003-04. 2. FACTS IN BRIEF ARE THAT THE ASSESSEE HAD FILED H ER RETURN OF INCOME DECLARING TOTAL INCOME AT RS.81,170/-. IN THE COURSE OF ASSESSMENT , THE AO NOTICED THAT THE ASSESSEE HAD RECEIVED GIFT OF RS.48,23,304. IN ORDER TO VERIFY T HE GENUINENESS OF GIFT, THE AO REQUIRED THE ASSESSEE TO PRODUCE THE DONOR ALONGWITH NECESSA RY EVIDENCE FOR VERIFICATION. THE ASSESSE IN HER REPLY DATED 3.10.2005 STATED THAT TH E DONOR WAS THE YOUNGER SISTER OF THE ASSESSEE WHO RESIDED IN HONG KONG AND DOING THERE T HE BUSINESS OF DIAMOND JEWELLERY. COPY OF REMITTANCE ADVICE, COPY OF PASSPORT, ETC WA S ALSO SUBMITTED. THE AO REQUIRED THE ASSESSEE TO PROVE THE CREDITWORTHINESS OF THE D ONOR TO GIVE GIFT OF RS.48,23,304/-. THE ASSESSEES COUNSEL VIDE HIS LETTER DATED 17.10. 2005, WHICH HAS BEEN REPRODUCED AT ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 2 PAGE 3 OF THE ASSESSMENT ORDER, INTER ALIA, POINTED OUT THAT THE BANK DETAILS OF THE DONOR I.E. SMT. PRITIBEN P.SHAH, WHO WAS THE REAL YOUNGER SISTER OF THE DONEE, HAD ALREADY BEEN FURNISHED. IT WAS ALSO POINTED OUT THAT THE PHOTOC OPY OF PASSPORT OF THE DONOR, GIFT DECLARATION LETTER, BANK REMITTANCE DETAILS OF HONG KONG BANK, BANK DETAILS OF INDIAN BANK I.E. THE BANK OF INDIA AND MANY OTHER INFORMAT ION/DETAILS HAD BEEN SUBMITTED. IT WAS REQUESTED THAT THE AO COULD CONTACT ON THE TELE PHONE NUMBER AND MOBILE NUMBER FURNISHED BY THE ASSESSEE OF THE DONOR. IT WAS FURT HER POINTED OUT THAT THE ASSESSEE HAD TELEPHONIC CONVERSATION WITH HER SISTER I.E. DONOR AND SHE INFORMED THAT SHE WAS NOT IN HONG KONG AND SHE WAS ON BUSINESS TOUR TO OTHER COU NTRIES AND WILL BE COMING BACK TO HONG KONG ONLY AFTER 27 TH NOVEMBER, 2005. THEREFORE, THE ASSESSEE WAS NOT I N A POSITION TO FURNISH THE DETAILS FROM THE DONOR. FR OM THIS REPLY, THE AO POINTED OUT THAT VERIFICATION OF T.T.ADVICE OF DAH SING BANK, HONG K ONG REVEALED THAT THE AMOUNT HAD BEEN TRANSFERRED FROM THE ACCOUNT OF ONE SONU DIAM AND THE INSTRUCTIONS HAD BEEN GIVEN BY SONU DIAM ONLY. SMT. PRITIBEN P.SHAH, THE ALLEG ED DONORS NAME WAS SHOWN IN THE COLUMN MESSAGE SENDER. HE FURTHER POINTED OUT THAT VERIFICATION OF INWARD REMITTANCE CERTIFICATE OF BANK OF INDIA, OPERA HOUS E BRANCH ALSO REVEALED THAT NOWHERE IN THE SAID CERTIFICATE, THE NAME OF THE DONOR WAS APPEARING. THE NAME OF THE REMITTER WAS SHOWN AS SONU DIAM. HE POINTED OUT THAT THE ASSESSEE HAD SUBMITTED THE DETAILS OF BANK ACCOUNT OF SONU DIAM AND NOT HER. THEREFORE , THE GENUINENESS OF THE GIFT TRANSACTION AND CAPACITY OF THE DONOR WAS NOT PROVE D. ACCORDINGLY, THE AO ISSUED ANOTHER LETTER DATED 25.10.2005, WHICH HAS BEEN REP RODUCED AT PAGES 4-6 OF THE ASSESSMENT ORDER, IN WHICH, ALL THE DISCREPANCIES N OTICED BY HIM, WERE POINTED OUT AND THE ASSESSEE WAS AGAIN GIVEN AN OPPORTUNITY TO ESTA BLISH THE GENUINENESS OF GIFT AND CREDITWORTHINESS OF THE DONOR. THE ASSESSEES REPL Y HAS BEEN REPRODUCED IN PARA 5.2 FROM PAGES 6 TO 7 OF THE ASSESSMENT ORDER, IN WHICH, THE ASSESSEE HAD FURNISHED THE DETAILS OF BANK ACCOUNT AND ALSO COPY OF DECLARATION FROM THE DONOR CONFIRMING THE GIFT. THE AO, AFTER CONSIDERING THE REPLY, HELD THAT THERE WAS NO THING ON RECORD TO SHOW THAT THE BANK ACCOUNT BELONGED TO DONOR SMT PRITIBEN P.SHAH. THE REFORE, THE ASSESSEE WAS AGAIN GIVEN AN OPPORTUNITY TO SUBSTANTIATE THE DETAILS. THE AS SESSEE IN ITS REPLY DATED 10.2.2006, REPRODUCED IN PARA 5.4 OF THE ASSESSMENT ORDER , INTER ALIA, SUBMITTED THAT SHE HAD FURNISHED ALL PRIMARY EVIDENCES OF GIFT AND THE SAM E WAS SUFFICIENT TO PROVE THAT THE ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 3 TRANSACTION WAS GENUINE. THE AO NOTICED THAT THE A SSESSEE WAS SPECIFICALLY ASKED TO EXPLAIN THE RELATIONSHIP BETWEEN SONU DIAM AND SMT PRITIBEN P.SHAH AND ABOUT BANK ACCOUNT NO.61-700-16101 OF DAH SING BANK, HONG KONG BUT THE ASSESSEE HAD NOT SUBMITTED/FURNISHED ANYTHING IN THIS REGARD. ACCOR DINGLY, ANOTHER NOTICE WAS ISSUED ON 9.3.2006, WHICH HAS BEEN REPRODUCED IN PARA 5.5 AT PAGES 9 & 10 OF THE ASSESSMENT ORDER. IN PARA 5.6, THE ASSESSEES REPLY DATED 13.3.2006 I S CONTAINED, IN WHICH, SHE POINTED OUT THAT SMT PRITIBEN P.SHAH DID NOT OWN HER BANK ACCOU NT NO.61-700-16101, WHICH BELONGED TO SONU DIAM. IT WAS FURTHER POINTED OUT THAT SMT PRITIBEN P.SHAH HAD DEPOSITED THE MONEY WITH SONU DIAM LONG AGO. HENC E, SMT PRITIBEN P. SHAH WAS A DEPOSITOR AND SONU DIAM WAS A BORROWER OF THE MONEY . THE CONFIRMATION LETTER FROM SONU DIAM WAS FILED. THE AO POINTED OUT THAT THE B ANK ACCOUNT DID NOT BELONG TO THE SMT. PRITIBEN P. SHAH BUT ACTUALLY BELONGED TO SONU DIAM. THEREAFTER, AGAIN CORRESPONDENCES WERE MADE BETWEEN THE ASSESSEE AND THE DEPARTMENT. AFTER DETAILED DISCUSSIONS, THE AO CONCLUDED THAT THE ASSESSEE FAI LED TO DISCHARGE THE ONUS CAST UPON HER TO PROVE THE CREDITWORTHINESS OF THE CREDITOR. HE FURTHER OBSERVED THAT MERE FILING OF CONFIRMATION FROM THIRD PARTY IS NOT SUFFICIENT TO PROVE THAT THE DONOR HAD MADE GIFT OUT OF DEPOSIT THEY HAD BEFORE ABOUT MORE THAN 3 YEARS . HE, ACCORDINGLY, MADE AN ADDITION OF RS.48,23,304/- , INTER ALIA, RELYING ON THE DECI SION OF THE OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF BHARTI PVT LTD V. CIT, 111 ITR 951 (CAL) AND CIT V. UNITED COMMERCIAL & INDUSTRIAL CO.(P)LTD., 187 ITR 596 (CA L), WHEREIN, IT HAD BEEN HELD THAT MERE FILING OF CONFIRMATORY LETTERS DOES NOT DISCHA RGE THE ONUS THAT LAY ON THE ASSESSEE. HE ALSO RELIED ON VARIOUS OTHER DECISIONS IN SUPPO RT OF HIS FINDINGS. 3. LD CIT (A) RELYING ON THE ORDER NO.CIT(A)XVII/IT O-16(3)(2)/IT-358/06-07 DATED 12.4.2007 OF HIS PREDECESSOR, DELETED THE ADD ITION OBSERVING THAT OUT OF THE TWO GIFTS MADE, THE GIFT OF US$ 65000 MADE IN THE LATER YEAR HAD ALREADY BEEN EXAMINED. HE FURTHER OBSERVED THAT THE GIFT IN THE CURRENT YEAR WAS FROM THE SAME SOURCE I.E. SMT PRITIBEN P SHAH, THE SISTER OF THE ASSESSEE. HE FU RTHER NOTED THAT THE PERMANENT IDENTITY CARD ISSUED BY HONG KONG AUTHORITIES WAS ISSUED IN OCTOBER, 1995 AND NOT ON 25.8.2003 AS ALLEGED BY THE AO. THUS, SHE WAS A PERMANENT RE SIDENT OF HONG KONG AND HAD DECLARED THE GIFT. HE FURTHER NOTED THAT SONU DIA M HAD CONFIRMED BY THEIR LETTER DATED ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 4 7.3.2006 THAT REMITTANCE AMOUNT HAD BEEN TRANSFERRE D FROM THE AMOUNT DEPOSITED BY THE ASSESSEE. THUS, THE ASSESSEE HAD DISCHARGED THE BU RDEN OF PROOF. 4. LD D.R. REFERRED IN DETAIL TO THE ASSESSMENT ORD ER TO DEMONSTRATE THAT THE ASSESSEE FROM THE VERY BEGINNING WAS STATING THAT THE BANK A CCOUNT BELONGED TO HER SISTER BUT WHEN SHE WAS CORNERED BY THE DEPARTMENT THEN ONLY SHE CA ME FORWARD WITH THE EXPLANATION THAT THE BANK ACCOUNT DID NOT ACTUALLY BELONG TO HER SIS TER BUT TO SONU DIAM. SHE POINTED OUT THAT THE GIFT WAS NOT FROM SISTER BUT FROM SONU DIA M. SHE POINTED OUT THAT THE SISTERS NAME, SMT PRITIBEN P. SHAH, WAS NOT IN THE BANK ACC OUNT. SHE SUBMITTED THAT THE BANK ACCOUNT OF SMT PRITIBEN P. SHAH HAD NOT BEEN SUBMIT TED BY THE ASSESSEE. SHE REFERRED TO PAGE NO.7 OF THE ASSESSMENT ORDER, WHEREIN, THE ASS ESSEES REPLY IS CONTAINED, IN WHICH, SHE STATED THAT THE COPY OF BANK STATEMENT FURNISHE D BY THE ASSESSEE WAS NOT SUFFICIENT EVIDENCE TO SHOW THE CAPACITY OF THE DONOR TO DONAT E THE AMOUNT TO THE ASSESSEE. SHE SUBMITTED THAT IT IS A WRONG SUBMISSION MADE BY THE ASSESSEE AS THE BANK ACCOUNT DID NOT BELONG TO HER SISTER. THUS, SHE SUBMITTED THAT THE GENUINENESS OF THE TRANSACTION HAD NOT BEEN ESTABLISHED. SHE FURTHER POINTED OUT THAT THE ASSESSEE GAVE A VERY VAGUE REPLY BY STATING THAT SMT PRITIBEN P.SHAH HAD DEPOSITED THE MONEY WITH SONU DIAM LONG AGO, WHICH HAD BEEN GIVEN AS GIFT TO THE ASSESSEE. NO D OCUMENTARY EVIDENCE BETWEEN SMT PRITIBEN P SHAH AND SONU DIAM IN THIS REGARD HAS B EEN FILED. THUS, SHE SUBMITTED THAT IT IS ONLY THE ASSESSEES SUBMISSION WHICH HAS NOT BEE N SUBSTANTIATED. SHE FURTHER REFERRED TO THE CASE OF RAJEEV TANDON REPORTED IN 109 TTJ 2 61 TO SUBMIT THAT THERE WAS NO OCCASION OF GIFT AND THERE WAS NO RECIPROCITY. SHE SUBMITTED THAT THE GIFT DOES NOT STAND THE TEST OF HUMAN PROBABILITY. SHE RELIED ON THE D ECISION REPORTED IN 209 CTR 394 TO SUBMIT THAT THE CAPACITY OF THE DONOR HAS TO BE EST ABLISHED. SHE RELIED ON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SANDEEP KUMAR (HUF) V CIT, 293 ITR 294 (DEL) TO SUBMIT THAT MERE IDENTIFICATION OF THE DON OR AND SHOWING MOVEMENT OF THE GIFT AMOUNT THROUGH BANKING CHANNELS IS NOT SUFFICIENT T O PROVE THE GENUINENESS OF THE GIFT. THE SOURCE OF MONEY HAS TO COME FROM DONOR. SHE RE LIED ON THE DECISION REPORTED IN 174 TAXMAN 4 AND ALSO THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT V. P.MOHANKALA, 291 ITR 278 (SC) FOR THE PROPOSITION THAT MERELY SI NCE MONEY CAME BY WAY OF BANK ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 5 CHEQUE AND WAS PAID THROUGH THE PROCESS OF BANKING TRANSACTION WAS NOT BY ITSELF OF ANY CONSEQUENCE. 5. LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE A SSESSEE HAD RECEIVED TWO GIFTS, ONE IN A.Y. 2003-04 AND OTHER IN A.Y. 2004-05 FROM SMT. PRITIBEN P SHAH. HE SUBMITTED THAT IN A.Y. 2004-05, ALL THE ASPECTS HAVE BEEN EXA MINED BY THE TRIBUNAL AND THE TRIBUNAL DISMISSED THE REVENUES APPEAL. HE REFERR ED TO THE DECISION OF THE TRIBUNAL IN ITA NO.4648/M/2007 FOR A.Y. 2004-05 AND POINTED OUT THAT THE TRIBUNAL HAS TAKEN NOTE OF ALL THESE FACTS. HE POINTED OUT THAT THERE IS N OT AN IOTA OF DIFFERENCE IN FACTS FROM A.Y. 2004-05 BUT SINCE THE APPEAL BEFORE LD CIT (A) FOR THE ASSESSMENT YEAR 2004-05 HAD BEEN DECIDED FIRST, THEREFORE, THE APPEAL FOR A.Y 2 004-05 WAS DECIDED BY THE TRIBUNAL ON 31.8.2009. HE SUBMITTED THAT THE DECISIONS RELIED UPON BY LD D.R. ARE NOT APPLICABLE TO THE FACTS OF THE CASE BECAUSE IN ALL THOSE CASES, T HE GIFTS HAVE BEEN RECEIVED FROM THIRD PARTY NOT FROM THE ASSESSEES RELATIVES BUT IN THE PRESENT CASE THE IMPUGNED GIFT HAS BEEN RECEIVED FROM THE SISTER OF THE ASSESSEE THROUGH B ANK ACCOUNT OF HER HUSBANDS FIRM FOR PURCHASE OF RESIDENTIAL PROPERTY. IN THIS REGARD, HE REFERRED TO PAGE 283 OF 291 ITR 278 (SUPRA) TO DEMONSTRATE THIS ASPECT. 6. IN THE REJOINDER, LD D.R. SUBMITTED THAT THE DEC ISION OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2004-05 IS PER INCURIUM INASMUCH AS THE SAME IS NOT IN CONFORMITY WITH THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF P.MOHANKALA (SUPRA). 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORD OF THE CASE. THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05, INTER ALIA, HELD IN PARA 2, 7 & 8 AS UNDER:- 2. THE ONLY ISSUE RAISED BY THE REVENUE IN THE PRES ENT APPEAL IS AGAINST THE DELETION OF ADDITION OF RS.29,71,761/- MADE UNDER S ECTION 68 OF THE ACT IN RESPECT OF GIFT RECEIVED BY THE ASSESSEE. THE ASSESSEE DUR ING THE YEAR UNDER CONSIDERATION HAD SHOWN A SUM OF RS.29,71,761/- (65,000 US$) AS R ECEIVED FROM HER SISTER SMT. PRITI PRADIP SHAH AS GIFT. BEFORE THE ASSESSING OF FICER THE ASSESSEE PRODUCED COPY OF BANK STATEMENT, ADVICE COPY FROM BANK OF BA RODA, COPY OF PASSPORT OF SMT. PRITI PRADIP SHAH AND CERTIFICATE OF FOREIGN I NWARD REMITTANCE FROM BANK AND ALSO COPY OF BANK ACCOUNT OF M/S.SONU DIAM FROM WHE RE ONE OF THE ABOVE GIFTS WAS TRANSFERRED. THE ASSESSEE DURING THE YEAR HAS R ECEIVED TWO GIFTS ONE FROM ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 6 SMT. PRITI PRADIP SHAH AND OTHER FROM SMT. SEEME BH AVESSH GANDHI, DAUGHTER-IN- LAW OF THE ASSESSEE. THE GIFT RECEIVED FROM THE DAU GHTER-IN-LAW OF THE ASSESSEE WAS ACCEPTED. HOWEVER, WITH REGARD TO THE GIFT RECE IVED FROM SMT. PRITI PRADIP SHAH, IT WAS NOTICED THAT THE GIFT WAS SENT THROUGH A FIRM M/S.SONU DIAM, HONG KONG BASED AND NOT THROUGH HER OWN BANK ACCOUNT. THE ASSESSING OFFICER ALSO NOTED THAT IN ASSESSMENT YEAR 2003-04 SIMILAR TYPE OF GIFT RECEIVED FROM SMT. PRITI PRADIP SHAH WAS SENT THROUGH THE SAME FIRM M/S. SO NU DIAM AND THE ASSESSING OFFICER HAD REJECTED THE CLAIM OF THE ASSESSEE AND TREATED THE SAME AS CASH CREDIT UNDER SECTION 68 OF THE ACT. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2003 -04 OBSERVED THAT THE RELATION BETWEEN THE DONOR AND M/S.SONU DIAM WAS NO T CLEAR AND BY MERELY FILING OF THE BANK ACCOUNT OF A THIRD PARTY, THE AS SESSEE HAS FAILED TO PROVE THE FINANCIAL CAPACITY OF THE DONOR. FURTHER, THE FINAN CIAL SOUNDNESS OF THE PARTY WHO HAVE DEPOSITED WITH THE FIRM IS ALSO NOT PROVED. TH E ASSESSING OFFICER HAS ALSO NOTED THAT THE DONOR ATTAINED THE STATUS OF PERMANE NT RESIDENT ONLY IN THE YEAR 2003 WHICH IS EVIDENT FROM THE IDENTITY CARD ISSUED ON 25.8.2003. THE ASSESSEE HAD FAILED TO FILE ANY DECLARATION AND ACCORDINGLY THE GIFT OF 1,00,000/- US$ MADE IN ASSESSMENT YEAR 2003-04 WAS TREATED AS UNEXPLAIN ED CASH CREDIT UNDER SECTION 68 OF THE ACT. FOLLOWING THE ORDER OF THE ASSESSING OFFICER IN THE ASSESSMENT YEAR 2003-04, SIMILAR ADDITION WAS MADE IN THE ASSESSMEN T YEAR 2004-05 AND THE GIFT OF 65,000 US$ EQUIVALENT TO RS.29,71,761/- WAS TREATED AS UNEXPLAINED CASH CREDIT UNDER SECTION 68 OF THE INCOME TAX ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 3 4 5. 6 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORDS. ON THE PERUSAL OF THE ORDER OF CIT(A), IT IS APPARENT THAT FINDINGS OF FACT HAVE BEEN GIVEN WHICH ARE NOT CONTROVERTED BY THE LEARNED D.R. THE ASSESSEE BEFORE US HAD RECEIVED GIFT OF 65,000 US $ FROM HER MARRIED SISTE R, WHO IS THE PERMANENT RESIDENT OF HONG KONG SINCE 6.10.1995 AND HER PERMA NENT ID WAS RENEWED ON 25.8.2003. THE COPY OF THE ORIGINAL AND RENEWAL ID IS PLACED ON RECORD. THE MAIN OBJECTION OF THE ASSESSING OFFICER WAS THAT THE DON OR WAS RESIDENT ONLY FROM 25.8.2003 AND HER CREDITWORTHINESS WAS NOT THUS EST ABLISHED. IN THE FACTS OF THE PRESENT CASE, THE IDENTITY OF THE DONOR MRS.PRITI P RADIP SHAH BEING THE MARRIED SISTER OF THE ASSESSEE IS ESTABLISHED. THE DONOR H AD AVAILABLE FUNDS BY WAY OF DEPOSIT WITH THE CONCERN OF HER HUSBAND M/S.SONU DI AM AND OUT OF THE SAID DEPOSITS GIFT OF 1,00,000 US $ WAS MADE IN THE ASS ESSMENT YEAR 2003-04 AND 65,000 US $ IN THE ASSESSMENT YEAR 2004-05. THUS, M/S. SONU DIAM HAD A DEPOSIT OF RS.1.25 LAKHS US $ FOR MORE THAN FOUR Y EARS AND 45,000US$ WERE DEPOSITED ON 31.8.2003. THE CONCERN M/S. SONU DIAM HAD CONFIRMED VIDE CERTIFICATE DATED 21.12.2006 ABOUT REMITTANCE OF 6 5,000 US$. THE CERTIFICATE IS PLACED AT PAGE 6 OF THE PAPER BOOK ALONG WITH COPY OF THE BANK STATEMENT OF ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 7 M/S.SONU DIAM AT PAGES 8 & 9 OF THE PAPER BOOK. THE DECLARATION OF DONOR DATED 4.12.2006 IS PLACED AT PAGE 2 OF THE PAPER BOOK. HO WEVER, THE BANK CERTIFICATE OF FOREIGN INWARD REMITTANCE DATED 1.11.2003 MENTIONS THE PURPOSE OF REMITTANCE AS AMOUNT RECEIVED AS GIFT. THE BANK CERTIFICATE IS PLACED AT PAGE 4 OF THE PAPER BOOK. THE SAID GIFT IS TRANSFERRED THROUGH BANKING CHANNELS TO THE BANK ACCOUNT OF THE ASSESSEE WITH BANK OF INDIA, OPERA HOUSE BRANCH , MUMBAI. THE CREDITWORTHINESS OF THE ASSESSEE STANDS ESTABLISHED AND THE GENUINENESS OF THE TRANSACTION STANDS PROVED. THE BASIC INGREDIENTS OF ESTABLISHING THE GIFT AND ITS GENUINENESS HAVE BEEN ESTABLISHED IN THE CASE OF TH E ASSESSEE AND ACCORDINGLY, THERE IS NO MERIT IN MAKING ANY ADDITION UNDER SECT ION 68 OF THE INCOME-TAX ACT. 8. THE LEARNED D.R. HAD PLACED RELIANCE ON THE DECI SION OF DELHI HIGH COURT IN SANDEEP KUMAR (HUF) VS. CIT, 293 ITR 294(DEL), W HEREIN MERE IDENTIFICATION OF THE DONOR AND PROOF OF MOVEMENT O F GIFT THROUGH BANKING CHANNEL WAS GIVEN AND WITH REGARD TO FINANCIAL CAPA CITY OF THE DONOR AND THE RELATIONSHIP BETWEEN THE DONOR AND DONEE WAS NOT P ROVED. THE RATIO LAID DOWN IN THE SAID JUDGEMENT IS NOT APPLICABLE TO THE FACT S OF THE PRESENT CASE, AS IN THE PRESENT CASE, THE GIFT HAS BEEN RECEIVED FROM THE M ARRIED SISTER OF THE ASSESSEE AS THE ASSESSEE IS DESIROUS OF INVESTING IN PROPERTY. SIMILARLY, THE RATIO LAID DOWN IN JASPAL SINGH VS. CIT., 290 ITR 306( P & H) IS ALSO NOT RELEVANT, AS THE FACTS ARE DIFFERENT. IN THE FACTS OF THAT CASE, LARGE AMOUNTS WERE RECEIVED FROM VARIOUS NON- RESIDENTS AND DONORS WERE NO WAY RELATED OR CONNE CTED WITH THE ASSESSEE AND THE ASSESSEE HAS FAILED TO ESTABLISH THE FINANCIAL CAPA CITY OF THE DONORS. WE ARE, THEREFORE, IN CONFORMITY WITH THE ORDER OF THE CIT( A) AND UPHOLD THE SAME. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS D ISMISSED. ADMITTEDLY, THERE IS NO DIFFERENCE IN FACTS IN THE PRESENT ASSESSMENT YEAR FROM A.Y. 2004-05. THEREFORE, THE DECISION OF THE TRIBUNAL I S SQUARELY APPLICABLE FOR THE PRESENT ASSESSMENT YEAR ALSO. HOWEVER, LD D.R. HAS SUBMITT ED THAT THE SAID DECISION IS PER INCURIAM IN VIEW OF THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF P. MOHANKALA (SUPA). IT IS WELL SETTLED LAW THAT THRE E INGREDIENTS OF SECTION 68 VIZ; IDENTITY OF THE PERSON, GENUINENESS OF THE TRANSACTION AND T HE CREDITWORTHINESS OF THE LENDER HAS TO BE ESTABLISHED BY THE ASSESSEE. IT IS PRIMARILY A QUESTION OF FACT IN EACH CASE WHETHER THE REQUIREMENTS OF THESE THREE INGREDIENTS ARE SATISFI ED OR NOT. THERE ARE NUMBER OF CASES IN WHICH THE COURTS AND TRIBUNAL HAVE ACCEPTED THE EXP LANATIONS IN RESPECT OF CASH CREDITS AND EQUALLY THERE ARE NUMBER OF SUCH CASES WHERE TH E EXPLANATIONS HAVE NOT BEEN ACCEPTED. WHETHER A PARTICULAR EXPLANATION GIVEN I N RESPECT OF PARTICULAR CASH CREDIT IS SATISFACTORY OR NOT IS PRIMARILY A QUESTION OF INFE RENCE TO BE DRAWN TAKING INTO CONSIDERATION THE TOTALITY OF THE FACTS AND CIRCUMS TANCES OF THE CASE. THUS, PRIMARILY IT IS ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 8 A QUESTION OF FACT ONLY. THEREFORE, WHEN ON IDENTI CAL SET OF FACTS, THE TRIBUNAL HAS REACHED TO A CONCLUSION THEN A CONTRARY VIEW CANNOT BE TAKEN UNLESS CLINCHING DISTINGUISHING FACT IS BROUGHT ON RECORD. IT IS WE LL SETTLED LAW THAT A JUDGEMENT SHOULD BE READ IN THE CONTEXT IN WHICH IT IS DELIVERED AND A SINGLE DISTINGUISHING FACT IS SUFFICIENT FOR DISTINGUISHING THE CASE LAW. IN THE CASE OF P.MOH ANKALA (SUPRA), ADMITTEDLY, GIFTS WERE NOT RECEIVED FROM THE RELATIVES BUT FROM THIRD PART Y AND IN THAT CONTEXT, THE JUDGMENT HAD BEEN DELIVERED. SIMILARLY, IN OTHER CASES ALSO REL IED UPON BY LD D.R. THE GIFTS WERE NOT RECEIVED FROM RELATIVES BUT FROM THIRD PARTY. FURT HER, THE PURPOSE OF GIFT IN THE PRESENT CASE WAS FOR PURCHASE OF RESIDENTIAL PROPERTY. THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF SANDEEP KUMAR(HUF) HAS DULY BE EN CONSIDERED BY THE TRIBUNAL FOR ARRIVING AT THE DECISION. WE, THEREFORE, DO NOT FI ND ANY REASON TO TAKE A CONTRARY VIEW IN THE PRESENT ASSESSMENT YEAR. ACCORDINGLY, WE UPHOL D THE ORDER OF LD CIT (A) AND REJECT THE GROUND TAKEN BY THE REVENUE. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE STAND S DISMISSED. PRONOUNCED ON 26 TH MARCH, 2010 SD/- (P.MADHAVI DEVI) (JUDICIAL MEMBER) SD/- (S.V. MEHROTRA) (ACCOUNTANTMEMBER) MUMBAI, DATED 26 TH MARCH , 2010 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)-, MUMBAI 4. COMMISSIONER OF INCOME TAX, CITY-, MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH I, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 9 DATE INITIALS 1. DRAFT DICTATED ON 24.3.2010 PS 2. DRAFT PLACED BEFORE AUTHOR 26..3.2010 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER AM/JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/J M 5. APPROVED DRAFT COMES TO THE SR. PS PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER ITA NO.3108/M/2009 SMT. MINAXIBEN PRAKASHBHAI GANDHI 10