Sanjay Bindal, V. ACIT Circle 2,

ITA 3608/DEL/2006

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8301 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 26-05-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 10-11-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KISHORE B
• Keywords: Gift; Onus to prove
• Section: 264; 131; 68

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : H : NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI DEEPAK R. SHAH, ACCOUNTANT MEMBER ITA NO. 3608/DEL/2006 ASSESSMENT YEAR : 2003-04 SHRI SANJAY BINDAL, C/O M/S MODERN INDUSTRIES, G.T. ROAD, SAHIBABAD. PAN: AAAPPB8347L VS. ACIT, CIRCLE-2, GHAZIABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN, CA RESPONDENT BY : SHRI KISHORE B., DR O R D E R PER I.P. BANSAL, JUDICIAL MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST THE ORDER OF THE CIT (A) DATED 17 TH AUGUST, 2006 FOR ASSESSMENT YEAR 2003-04. GROUNDS OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY THE LEARNED AO IS BAD BOTH IN THE EYE OF LAW & ON FACTS. 2(I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, T HE LEARNED AO HAS ERRED BOTH ON FACTS & IN LAW, IN CONFIRMING THE ACTION OF THE AO IN MAKING AN ADDITION OF RS.5,00,000/- ON ACCOUNT OF GIFTS RECEIVED FROM SMT. NIRMAL GUPTA UNDER SEC TION 68. (II) THAT THE ABOVE-SAID ADDITION HAS BEEN MADE IG NORING MATERIAL AND EVIDENCES BROUGHT ON RECORD BY THE ASS ESSEE. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND O R ALTER ANY ITA NO.3608/DEL/2006 2 OF THE GROUNDS OF APPEAL. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO IN THE YEAR UNDER CONSIDERATION HAS EARNED INCOME AS INCOME FROM SALA RY, AGRICULTURAL INCOME AND INCOME FROM OTHER SOURCES. DURING THE ASSESSMENT P ROCEEDINGS IT CAME TO THE NOTICE OF THE AO THAT ASSESSEE HAD RECEIVED GIFT OF RS.5 LAC FROM ONE SMT. NIRMAL GUPTA, R/O 239, ASAURA, WESTERN KUTCHERY ROAD, MEER UT CITY. THE SAID LADY (DONOR) WAS UNRELATED TO THE ASSESSEE AND FROM THE COPIES OF BANK ACCOUNT OF THE DONOR, IT WAS NOTED BY THE AO THAT A DAY PRIOR TO THE GIFT I.E., ON 10 TH FEBRUARY, 2003 THE DONOR WAS NEVER IN A POSITION TO ADVANCE S UCH GIFT TO ANYONE. NOTING FROM HER BANK ACCOUNT IT WAS FOUND THAT AVERAGE BAL ANCE OF THE SAID BANK ACCOUNT WAS RS.20,000/- AND THE BANK ACCOUNT WAS CR EDITED BY THE AMOUNTS OF GIFT WHICH WAS RECEIVED FROM FOLLOWING PERSONS:- SL. NO. DATE AMOUNT THE PERSON WHO HAS GIVEN THE GIFT TO THE DONOR 1. 10 TH FEB., 2003 3 LAC M/S RAVENDRA KUMAR GARG & SONS 2. 11 TH FEB., 2003 4 LAC SMT. SUMITRA DEVI 3. 11 TH FEB, 2003 3 LAC SMT. RATAN KUMARI GARG 3. OUT OF THESE GIFTS, THE DONOR HAD MADE THE GIFTS OF RS.10 LAC TO THE ASSESSEE AND HIS HUF I.E., A SUM OF RS.5 LAC EACH O N 11 TH FEBRUARY, 2003. 4. THE ASSESSEE WAS ASKED TO JUSTIFY THE GENUINENES S OF THE GIFT RECEIVED BY HIM FROM THE DONOR AND WAS ALSO REQUIRED TO PRODUCE HER. IN RESPONSE, THE SON OF THE DONOR, SHRI PANKAJ GUPTA CA, APPEARED WHO ST ATED THAT HE IS REPRESENTING HIS MOTHER AND MAY BE QUESTIONED IN THIS REGARD. V IDE REPLY DATED 14 TH DECEMBER, 2005 IT WAS SUBMITTED THAT THE DONOR IS N OT STRANGER TO THE ASSESSEE AND SHE IS KNOWN TO THE FAMILY OF DONEE FOR THE LAS T 40 YEARS. IT WAS STATED THAT GIFT DEED WAS EXECUTED WHICH IS A COMPLETE DOCUMENT . THE GIFT WAS MADE OUT OF LOVE AND AFFECTION AND ON THE EVE OF ASSESSEES BIR TH DAY WHICH FALLS ON 14 TH FEBRUARY, 2005. THE MAINTENANCE OF BANK ACCOUNT BY THE DONOR IS HER HEADACHE ITA NO.3608/DEL/2006 3 AND NOT THE HEADACHE OF THE ASSESEE. THE IDENTITY, MODE AND CREDIT WORTHINESS HAS BEEN ESTABLISHED ON ACCOUNT OF AFFIDAVIT FILED BY THE DONOR AND IT WAS SUBMITTED THAT DONOR MAY BE CALLED BY ISSUE OF SUMM ONS AT THE COST OF THE ASSESSEE. 5. THE DONOR ALSO ENCLOSED COPY OF INCOME-TAX RETUR N FOR ASSESSMENT YEAR 2003-04 WITH HER CAPITAL ACCOUNT AS ON 31 ST MARCH, 2003 AND ALSO BANK STATEMENT. COPY OF BALANCE SHEET WAS ALSO FILED. THE CAPITAL ACCOUNT OF THE ASSESSEE SHOWED THE OPENING BALANCE OF RS.10,91,257 .14 TO WHICH THE ABOVE MENTIONED THREE GIFTS RECEIVED BY THE DONOR HAVE BE EN CREDITED APART FROM THE SALARY EARNED BY THE DONOR, DIVIDEND EARNED ON SHAR ES AND INTEREST FROM BANK ALONG WITH PETTY CASH GIFTS OF RS.60,000/- AND INTE REST ON DEPOSIT OF RS.1041/-. THUS, THE OTHER CREDITS APART FROM THE GIFTS OF RS .10 LAC TO THE CAPITAL ACCOUNT OF THE DONOR WERE A SUM OF RS.1,44,723/- OUT OF WHICH THE DONOR HAS INCURRED LOSS ON SHARE AMOUNTING TO RS.66,665/- AND AFTER GIVING BANK CHARGES, DEMAT CHARGES AND ALSO GIVING THE TWO GIFTS OF RS.5 LAC EACH TO THE ASSESSEE AND HIS HUF, THE REMAINING BALANCE AS ON 31 ST MARCH, 2003 HAS BEEN SHOWN AT RS.11,67,851.68. 6. IT WAS SUBMITTED BY THE ASSESSEE THAT THE DONOR WAS IN A POSITION TO ADVANCE THE SAID GIFT DUE TO HER CAPITAL BALANCE. HOWEVER, THE AO FOUND THAT THE DONOR WAS HAVING ONLY A SUM OF RS.1,60,266.95 AS LI QUID FUND AND REST OF THE FUNDS OWNED BY THE DONOR WERE LOCKED UP EITHER AS S HARES OR FIXED DEPOSITS AND, THUS, SHE WAS NOT IN A POSITION TO ADVANCE GIFT OF RS.5 LAC TO ANY ONE UNDER THE NORMAL CIRCUMSTANCES IN VIEW OF INADEQUATE CASH/BAN K BALANCE. HE ISSUED NOTICE U/S 131 TO THE DONOR ON 10 TH JANUARY, 2006 AND ON 18 TH JANUARY, 2006 AND THE STATEMENT OF THE DONOR WAS RECORDED. SOME OF T HE QUESTIONS AND ANSWERS HAVE BEEN REPRODUCED BY THE AO IN THE ASSESSMENT OR DER AT PAGE 4 AND 5. THE SUM AND SUBSTANCE OF THESE QUESTIONS IS THAT THE DO NOR IS INCOME-TAX ASSESSEE FOR THE LAST 15 YEARS AND SHE EARNS INCOME FROM TRA DING IN SHARES. THE AFFAIRS OF DONORS ARE BEING HANDLED BY HER HUSBAND SHRI SHYAM SUNDER GUPTA, FCA. THE HOUSEHOLD EXPENSES ARE BORNE BY HUSBAND. SHE HAD R ECEIVED GIFT OF RS.3 LAC ON 10 TH FEBRUARY, 2003 FROM RAVENDRA KUMAR GARG & SONS, TH E ADDRESS OF WHOM IS ITA NO.3608/DEL/2006 4 NOT KNOWN TO THE DONOR. SIMILARLY, SHE HAS RECEIVE D THE GIFT OF RS.4 LAC AND 3 LAC ON 11 TH FEBRUARY, 2003 FROM SMT SUMITRA DEVI .W/O OF SHRI O.P. VAISH AND SMT. RATAN KUMARI GARG W/O SHRI RAVENDRA KUMAR GARG OF W HOM THE ADDRESSES WERE ALSO NOT KNOWN TO THE DONOR. IT WAS SUBMITTED THAT THE DONOR DID NOT RECEIVE ANY OTHER GIFT OTHER THAN THOSE MENTIONED ABOVE. THE D ONOR ALSO EXPRESSED HER INABILITY TO TELL THE CONSTITUTION (THE DETAILS OF OTHER MEMBERS) OF RAVENDRA KUMAR GARG AND SONS WHICH IS ONE OF THE DONORS TO THE ASS ESSEE. THE FURTHER QUESTION PUT BY THE AO WAS THAT WHETHER THE DONOR IS HAVING ANY RELATIONSHIP WITH SHRI RAVENDER KUMAR GARG AND WHETHER ANY GIFT WAS MADE B Y HER TO THE FAMILY OF SHRI RAVENDRA KUMAR GARG. IT WAS SUBMITTED BY THE DONOR THAT SHRI RAVENDRA KUMAR GARG IS MY MATERNAL UNCLE (MOSA) AND SHE HAS NEVER GIFTED HER OR TO ANY OF HER FAMILY MEMBERS. IT WAS SUBMITTED THAT SHE H AS RECEIVED THIS GIFT ONLY FOR THE REASON THAT SHE IS DAUGHTER OF SHRI RAVENDRA K UMAR GARG. IT WAS FURTHER REQUIRED THAT WHAT IS THE RELATIONSHIP OF DONOR W ITH SMT. SUMITRA DEVI WHO HAS MADE A GIFT OF RS.4 LAC TO THE DONOR. IT WAS SUBMI TTED THAT SAID SMT. SUMITRA DEVI IS SISTER IN LAW AND SHE HAD NEVER GIFTED ANY AMOUNT TO HER OR ANY OF HER FAMILY MEMBERS AND THE GIFT WAS NOT RECEIVED FROM H ER ON ANY PARTICULAR OCCASION. REGARDING SMT. RATAN KUMARI GARG, WHO HA D MADE THE GIFT TO THE DONOR, THE DONOR WAS REQUIRED TO STATE ABOUT RELATI ONSHIP AND THE OCCASION AND IT WAS SUBMITTED THAT SHE IS THE AUNT OF THE DONOR AN D THE AMOUNT WAS GIFTED BY HER THROUGH CHEQUE TO BANK WAS NOT RELATED AND THE GIFT WAS NOT GIVEN ON ANY PARTICULAR OCCASION. THE DONOR STATED THAT TWO GIF TS HAD BEEN GIVEN OF RS.5 LAC EACH TO THE ASSESSEE AND HIS HUF WHICH ARE ON THE O CCASION OF BIRTH DAY OF THE ASSESSEE. IT WAS ALSO STATED BY THE DONOR THAT SHE IS KNOWN TO THE FAMILY OF THE ASSESSEE FOR THE LAST 40 YEARS. HOWEVER, THE DONOR EXPRESSED HER INABILITY AND STATED THAT SHE DOES NOT KNOW ABOUT THE MEMBERS OF THE ASSESSEES HUF TO WHOM ANOTHER RS.5 LAC WAS MADE. IT WAS FURTHER STA TED BY THE DONOR THAT SHE HAS NEVER RECEIVED OR SHE HAS NEVER GIVEN ANY GIFT TO THE ASSESSEE AND HIS HUF PRIOR TO THE GIFTS OF RS.5 LAC EACH MADE TO THEM. ITA NO.3608/DEL/2006 5 7. FROM THE ABOVE STATEMENT, THE AO NOTICED THAT TH E DONOR DID NOT HAVE ANY IDEA REGARDING PERSONS FROM WHOM SHE HAS RECEIVED G IFTS OF RS.10 LAC ON 10 TH AND 11 TH FEBRUARY, 2003 AND SHE ALSO DOES NOT KNOW MUCH ABO UT THE DONEE I.E., THE ASSESSEE AND HIS FAMILY MEMBERS CONSTITUTING TH E HUF. SHE ALSO DOES NOT HAVE MEANS TO MAKE SUCH GIFT. TAKING NOTE OF THE SURROUNDING FACTS AND CIRCUMSTANCES THE AO OBSERVED THAT THE DONOR IS BE ING USED AS MERE CONDUIT TO TRANSFER FUNDS TO THE ASSESSEE AND HIS HUF. FURTHE R, REFERRING TO THE SECTION 68, IT IS OBSERVED BY THE AO THAT THREE BASIC REQUIREME NTS ARE REQUIRED TO BE FULFILLED TO SATISFY THE GENUINENESS OF THE CASH CREDIT WHIC H ARE IDENTITY, CREDIT WORTHINESS OF THE CREDITOR AND THE GENUINENESS OF THE TRANSACT ION. FROM THE FACTS IT WAS NOTED THAT GIFT WAS RECEIVED FROM AN UNRELATED PERS ON AND THE REQUIREMENT OF IDENTITY ONLY WAS ESTABLISHED. TAKING INTO CONSIDE RATION THE INCOME-TAX RETURN, BANK STATEMENTS AND THE STATEMENT OF THE DONOR, THE A.O. OBSERVED THAT IT IS PROVED THAT THE DONOR HAD NO IDEA OF THE TRANSACTIO NS BEING CARRIED OUT IN HER NAME AND SHE IS ACTING AS A NAME LENDER. SHE DID N OT HAVE CAPACITY TO MAKE THE GIFT. HER BANK ACCOUNT WAS CREDITED WITH THREE GIFTS ON 10 TH FEBRUARY, 2003 AND 11 TH FEBRUARY, 2003 FROM THE PURPORTED RELATIVES WHOSE ADDRESSES WERE NOT KNOWN TO HER AND FROM WHOM SHE HAD NEVER RECEIVED O THER GIFTS. THE DONOR WAS ALSO NOT AWARE OF PETTY GIFTS OF RS.60,000/- CREDIT ED TO HER ACCOUNT DISCLOSED IN THE CAPITAL ACCOUNT OF THE DONOR. SHE COULD NOT TE LL ABOUT THE MEMBERS OF THE ASSESSEES HUF TO WHOM SHE HAS MADE THE GIFT OF RS. 5 LAC AND, THUS, THE CLAIM OF THE DONOR THAT SHE KNOWS THE FAMILY OF ASSESSEE SINCE THE LAST 40 YEARS CANNOT BE BELIEVED. THE GIFT DEED FILED BY THE DONOR DOES NOT REVEAL THAT THE GIFT WAS MADE ON THE BIRTH DAY OF THE ASSESSEE. IT WAS FURT HER OBSERVED THAT DONOR IS DRAWING ONLY SALARY OF RS.36,000/-, BUT SHE DOES NO T HAVE THE KNOWLEDGE OF THE WORK DONE BY HER. HER CAPITAL ACCOUNT DOES NOT SHO W ANY WITHDRAWALS AND, THUS, INESCAPABLE CONCLUSION IS THAT THE NAME OF SMT. NIR MAL GUPTA IS BEING USED FOR CAPITAL BUILDING AND, THEREFORE, THE GIFTS RECEIVED BY THE ASSESSEE FROM HER ARE NOT GENUINE. THE ASSESSEE IS NOT ABLE TO DISCHARGE THE INITIAL ONUS AS CAST UPON HIM U/S 68 OF THE ACT AND FAILS TO PROVE GENUINENES S OF THE GIFTS. ACCORDING TO THE AO IT WILL BE HIGHLY IMPROPER TO BELIEVE THAT SOME ONE OF LITTLE CREDIT WORTHINESS ITA NO.3608/DEL/2006 6 WOULD ALLOW TO MAKE A GIFT OF SUCH A HUGE AMOUNT TO AN UNRELATED INDIVIDUAL WHO DOES NOT HAVE FUNDS TO DO SO AND WAS REQUIRED WAIT PRECISELY TILL THE DATE GIFTS WERE RECEIVED IN HER ACCOUNT AND PROMPTLY PASSED ON THE GIFT. THE DONOR DID NOT HAVE THE LIQUID FUNDS TO MAKE THE GIFTS OF THE MAGN ITUDE IN QUESTION AND IT WAS ONLY POSSIBLE TO DO SO AFTER CAREFUL PLANNING AND A RRANGEMENT OF THE SO-CALLED GIFTS TO GENERATE THE LIQUID CASH TO MAKE A GIFT TO THE ASSESSEE AND HIS HUF. THUS, THE AO INFERRED THAT THE ALLEGEDLY SELF-PROCL AIMED DESIRE TO GIVE GIFT WAS NEVER THERE IN THE MIND OF THE DONOR. THE DONOR IS NOTHING, BUT A SUBTERFUGE AND A NAME LENDER FOR THE INTRODUCTION OF THE ASSESSEE S OWN FUNDS. IN THESE CIRCUMSTANCES, THE AO TREATED THE SAID AMOUNT OF GI FT OF RS.5 LAC MADE BY THE DONOR TO THE ASSESSEE AS ASSESSEES INCOME U/S 68 O F THE ACT. AN APPEAL WAS FILED AGAINST THE SAID ORDER OF THE AO. IT WAS SUB MITTED BEFORE THE CIT (A) THAT SO FAR AS IT RELATES TO THE IDENTITY THE SAME HAS NOT BEEN QUESTIONED BY THE AO. WITH REGARD TO CREDIT WORTHINESS OF THE DONOR IT WAS SUB MITTED THAT THE FINANCIAL CREDIT WORTHINESS OF THE DONOR IS ESTABLISHED BY THE BALAN CE SHEET AND WITH REGARD TO GENUINENESS OF THE TRANSACTION IT WAS SUBMITTED THA T THE DONOR IS AN INCOME-TAX ASSESSEE AS WELL AS THE TRANSACTIONS ARE THROUGH BA NKS. 8. CONSIDERING THE FACTS OF THE CASE, IT IS OBSERVE D BY THE CIT (A) THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH EITHER THE CREDIT WORTHINESS OR THE GENUINENESS OF THE TRANSACTION. HE OBSERVED THAT C REDIT WORTHINESS CANNOT BE ESTABLISHED BY MERELY SUBMITTING THE DETAILS OF PAN , WARD NO. AND BANK PASSBOOK WITH SMALL BALANCE. HE OBSERVED THAT GIFT S HAVE NOT BEEN TAKEN OR RECEIVED IN THE NORMAL COURSE OVER THE YEARS BETWEE N THE ASSESSEE AND THE DONOR OR HER FAMILY MEMBERS. TAKING NOTE FROM THE BANK BALANCES OF THE DONOR AS ON 31 ST MARCH, 2003 FROM THREE BANKS WHICH WERE OF RS.70.5 6, RS.6466/- AND RS.1704.39 FROM ALLAHABAD BANK, BANK OF MADURAI AND BANK OF RAJASTHAN RESPECTIVELY AND OBSERVED THAT CERTAINLY A PERSON W HO HAS ALLEGEDLY GIFTED RS.10 LAC IN ONE SINGLE DAY WITHOUT ANY PRECEDENCE WILL N OT BE DOING SO. TAKING CLUE FROM THE STATEMENT OF THE DONOR, THE CIT (A) OBSER VED THAT THE DONOR HAS STATED ON OATH THAT SHE HAS NOT RECEIVED OR GIVEN ANY GIFT FROM HER MATERNAL UNCLE (MOSA) AND NEITHER SHE HAS MADE ANY GIFT TO SMT. SU MITRA DEVI OR HAS RECEIVED ITA NO.3608/DEL/2006 7 ANY GIFT FROM HER EARLIER. ANOTHER PERSON SMT. RAT AN KUMARI GARG WHO HAS ALSO MADE GIFT TO THE DONOR HAS NOT MADE ANY GIFT OR REC EIVED ANY GIFT PRIOR TO THE PARTICULAR GIFT. THE CIT (A) DISTINGUISHED THE DEC ISION RELIED UPON BY THE ASSESEE IN THE CASE OF MURLIDHAR LOHARIMAL VS. CIT 280 ITR 512 (GUJ) ON THE GROUND THAT IN THE PRESENT CASE NO GIFT TAX WAS BORNE. THE DEC ISION IN THE CASE OF SHREELEKHA BANERJEE VS. CIT 49 ITR 112 (SC) WAS AL SO DISTINGUISHED ON THE GROUND THAT IN THAT CASE THE DEPARTMENT ACTED UNREA SONABLY FOR REJECTING THE EXPLANATION. HOWEVER, IN THE PRESENT CASE, ACCORDI NG TO CIT, THE DEPARTMENT HAS PROCEEDED MOST LOGICALLY AND REASONABLY. HE OBSERV ED THAT ASSESSEE WAS REQUIRED TO DISCHARGE HIS ONUS TO PROVE THE CREDIT WORTHINESS AND GENUINENESS WHICH HAS NOT BEEN DONE AND PLACING RELIANCE ON TH E FOLLOWING DECISIONS THE CIT (A) HAS OBSERVED THAT THE AO WAS RIGHT IN MAKING TH E ADDITION. 1. LAKHMICHAND BAIJNATH V. CIT (1959) 35 ITR 416 (S C) 2. CIT V. GANAPATHI MUDALIAR (1964) 53 ITR 623 (SC) 3. LAKSHMIRATAN COTTON MILLS CO. LTD. VS. CIT (1972 ) TAX LR 585 (ALLD). 9. THE ASSESSEE IS AGGRIEVED, HENCE, IN APPEAL. 10. AFTER NARRATING THE FACTS IT WAS VEHEMENTLY PLE ADED BY THE LD. AR THAT IN THE PRESENT CASE THE ASSESSEE HAS NOT ONLY SUBMITTE D ALL THE REQUIRED DOCUMENTS TO PROVE THE GIFTS RECEIVED BY THE ASSESSEE, BUT AL SO HAD PRODUCED THE DONOR. IT WAS POINTED OUT THAT THE GIFT RECEIVED BY THE ASSES SEE WAS SUPPORTED BY THE GIFT DEED, THE COPY OF BANK ACCOUNT OF THE DONOR, THE CO PY OF CAPITAL ACCOUNT AND BALANCE SHEET OF THE DONOR. THE DONOR IS ALSO AN I NCOME-TAX ASSESSEE. THUS, IT WAS PLEADED THAT THERE IS SUFFICIENT MATERIAL ON RE CORD TO PROVE ALL THE THREE REQUIREMENTS TO PROVE THE GENUINENESS OF THE GIFT. HE CONTENDED THAT THE IDENTITY OF THE DONOR IS NOT AT ALL DISPUTED EVEN BY THE AO. WITH REGARD TO THE CREDIT WORTHINESS, LD. AR HAS TAKEN US THROUGH THE FACTS A ND FIGURES CONTAINED IN THE CAPITAL ACCOUNT AS WELL AS THE BALANCE SHEET OF THE DONOR WHICH HAS ALSO BEEN REPRODUCED IN THE ASSESSMENT ORDER BY THE AO. REFE RRING TO THE CAPITAL ACCOUNT IT WAS SUBMITTED BY THE LD. AR THAT THE DONOR IS A MAN OF MEANS, SHE WAS HAVING ITA NO.3608/DEL/2006 8 CAPITAL BALANCE OF MORE THAN RS.10 LAC. REFERRING TO THE BALANCE SHEET OF THE DONOR, LD. AR POINTED OUT THAT THE SAME WAS RUNNING INTO 24.30 LACS. THUS, IT WAS PLEADED THAT CREDIT WORTHINESS OF THE DONOR ALS O CANNOT BE DOUBTED OR DISPUTED. COMING TO THE GENUINENESS ASPECT, IT WAS PLEADED BY LD. AR THAT THE TRANSACTIONS OF GIFT ARE THROUGH THE BANK. COPY OF BANK ACCOUNT WAS PRODUCED. THE STATEMENT OF THE DONOR WAS RECORDED IN WHICH TH E DONOR HAS ADMITTED TO HAVE MADE THE GIFT TO THE ASSESSEE AND HIS HUF. NO T ONLY SHE HAS ADMITTED TO HAVE MADE THE GIFT TO THE ASSESSEE AND HIS HUF, BUT SHE HAS ALSO EXPLAINED REGARDING THE CREDIT ENTRIES MADE IN HER BANK ACCOU NT AND SHE ALSO HAS SUBMITTED THE DETAILS WITH RESPECT TO THE DONORS, W HO HAD MADE THE GIFT TO SMT. NIRMAL GUPTA. THEN, REFERRING TO THE PAPER BOOK, L D. AR STATED THAT AT PAGE 1 AND 2 COMPUTATION OF THE ASSESSEE IS FILED AND AT P AGE 3, THE BALANCE SHEET OF THE ASESSEE IS FILED. AT PAGE 4, THE GIFT LETTER G IVEN BY THE DONOR TO THE ASSESSEE IS FILED. AT PAGE 5 TO 7, AFFIDAVIT OF THE DONOR I S FILED AND FROM PAGE 8 TO 12, THE COPY OF STATEMENT RECORDED BY THE AO OF THE DONOR IS ATTACHED. ANOTHER PAPER CONTAINING IN THE PAPER BOOK WERE REFERRED TO AS UN DER:- SL. NO. PARTICULARS OF THE DOCUMENT PAGE NO. OF THE PAPER BOOK 1. COPY OF ACKNOWLEDGEMENT OF RETURN IN THE CASE OF DONOR FOR ASSESSMENT YEAR 2003-04 14 2. COPY OF CERTIFICATE OF GIFT MADE BY SMT. SUMITRA GUPTA TO THE DONOR 15 3. COPY OF ACKNOWLEDGEMENT OF RETURN OF SMT. SUMITR A GUPTA 16 4. COPY OF CERTIFICATE OF GIFT MADE BY SMT. RATAN K UMARI GARG 17 5. COPY OF ACKNOWLEDGEMENT OF RETURN OF SMT. RATAN KUMARI GARG 18 6. COPY OF CERTIFICATE OF GIFT MADE BY SHRI RAVENDR A KUMAR GARGA & SONS 19 7. COPY OF BANK STATEMENT OF RAVENDRA KUMAR GARGA & SONS 20 ITA NO.3608/DEL/2006 9 11. REFERRING TO ALL THESE DOCUMENTS IT WAS SUBMITT ED BY THE LD. AR THAT THE ASSESSEE HAVING SUBMITTED ALL THE PROOFS INCLUDING EVEN FROM THE PERSONS WHO HAD MADE GIFTS TO THE DONOR, THEN ALL THE THREE ING REDIENTS WHICH ARE REQUIRED TO BE PROVED FOR GENUINENESS OF THE GIFT WERE FULFILLE D AND THE ADDITION HAS WRONGLY BEEN MADE BY THE AO ON THE BASIS OF CONJECTURES AND SURMISES WHICH HAS WRONGLY BEEN UPHELD BY THE CIT (A) WITHOUT PROPERLY APPRECIATING AND CONSIDERING THE EVIDENCE PLACED ON RECORD TO PROVE THE GENUINENESS OF THE GIFT. IT WAS SUBMITTED BY LD. AR THAT THE ASSESSEES CASE IS SQUARELY COVERED BY THE DECISION OF DELHI ITAT IN THE CASE OF MRS. RANJANA KATYAL VS. ACIT (2008) 1 DTR (DEL) (TRIB) 24 WHEREIN IT HAS BEEN HELD THAT AS TH E ASSESSEE HAD PRODUCED EVIDENCE FROM THE DONORS, THEIR ORDERS, IDENTITY CA RDS, PAN CARDS, COPIES OF RETURNS OF INCOME AND WEALTH AND COPIES OF THEIR BA NK ACCOUNTS FROM WHERE GIFTS WERE GIVEN BY ISSUE OF PAY ORDERS, INITIAL BURDEN O N ASSESSEE STOOD DISCHARGED AND DEPARTMENTAL AUTHORITIES WERE NOT JUSTIFIED IN ADDING THE AMOUNT OF RS.5 LAC AS INCOME OF THE ASSESSEE. THUS, IT WAS VEHEMENTLY PLEADED BY THE LD. AR THAT THE AMOUNT OF RS.5 LAC AS UNEXPLAINED GIFT HAS WRON GLY BEEN ADDED BY THE AO AND CIT (A) WAS ALSO WRONG IN CONFIRMING THE SAID A DDITION. 12. LD. AR FURTHER REFERRED TO THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. R.S. SIBAL 269 ITR 429 (DEL) TO CON TEND THAT IT IS NOT NECESSARY THAT THERE SHOULD BE BLOOD RELATIONSHIP BETWEEN THE ASSESSEE AND DONOR AND, THUS, HE PLEADED THAT THE A.O. AS WELL AS THE CIT ( A) BOTH WERE WRONG IN HOLDING THAT GIFT WAS NON-GENUINE ON ACCOUNT OF THERE BEING NO RELATIONSHIP BETWEEN THE ASSESSEE AND THE DONOR. 13. ON THE OTHER HAND, IT WAS SUBMITTED BY THE LD. DR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO IS RIGHT IN MAKIN G THE ADDITION OF RS.5 LAC AND THE CIT (A) HAS ALSO RIGHTLY UPHELD THE SAME. IT W AS SUBMITTED BY THE LD. DR THAT GIFT HAS BEEN SHOWN TO HAVE BEEN MADE OUT OF LOVE A ND AFFECTION DESPITE THE FACT THAT THERE IS NO RELATION OF THE ASSESSEE WITH THE DONOR LADY. REFERRING TO THE STATEMENT OF THE DONOR IT WAS PLEADED BY THE LD. DR THAT THE STATEMENT REVEALS THAT CERTAIN CRUCIAL FACTS WERE NOT KNOWN TO THE DO NOR REGARDING THE FAMILY OF THE ITA NO.3608/DEL/2006 10 DONEE AND THUS THE CLAIM OF THE ASSESSEE AS WELL AS DONOR THAT THEY KNOW EACH OTHER FOR THE LAST 40 YEARS HAS BEEN PROVED TO BE F ALSE. IT WAS PLEADED THAT THE ENTIRETY OF FACTS CLEARLY SHOWS THAT THE DONOR DID NOT HAVE THE CAPACITY TO MAKE THE GIFT OF RS.10 LAC. IT WAS PLEADED THAT WITHOUT MUCH WAITING FOR THE GIFTS RECEIVED BY THE DONOR IN HER BANK ACCOUNT, SHE HAS ISSUED THE GIFT CHEQUES TO THE ASSESSEE ON THE SAME DAY. LD. DR PLEADED THAT THIS FACT ALONE IS INDICATIVE OF THE FACT THAT NO GENUINE GIFT WAS EITHER GIVEN O R RECEIVED. HE CONTENDED THAT MERE SUBMISSION OF THE PROOF REGARDING IDENTITY IS NOT SUFFICIENT TO PROVE THE GIFT. SIMILARLY, IT WAS POINTED OUT THAT THE GIFT TRANSAC TION MADE THROUGH BANKING CHANNEL ALONE IS NOT SUFFICIENT TO PROVE THE GENUIN ENESS OF THE GIFT. 14. THE LD. DR REFERRED TO THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF K.L. AGGARWAL VS. CIT 190 ITR 303 (DEL). H E CONTENDED THAT THE QUESTION CONSIDERED BY HONBLE HIGH COURT IS WITH R EGARD TO GIFT OF RS.50,000/- IN THAT CASE REVENUE HAD DISBELIEVED THE CONTENTION OF THE ASSESSEE THAT THERE WAS A VALID GIFT MADE TO THE ASSESSEE. IT WAS OBSERVED BY THE HONBLE HIGH COURT THAT ONUS OF PROVING THE VALIDITY OF GIFT WAS ON TH E ASSESSEE AND, THEREFORE, ASSESSEE WAS REQUIRED TO PRODUCE THE DONOR IF HE W AS ASKED TO PRODUCE THE DONOR. THIS DECISION WAS RELIED UPON BY THE LD. DR FOR THE CONTENTION THAT ONUS TO PROVE THE VALIDITY OF GIFT IS ON ASSESSEE. FURT HER, LD. DR PLACED RELIANCE ON THE DECISION OF HONBLE HIGH COURT IN THE CASE OF S AJAN DASS & SONS VS. CIT 264 ITR 435 (DEL) TO CONTEND THAT MERE IDENTIFICATION O F THE DONOR AND SHOWING THE MOVEMENT OF THE GIFT AMOUNT THROUGH BANKING CHANNEL IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. SINCE THE CLAIM OF GI FT IS MADE BY THE ASSESSEE, ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIFT, BUT ALSO HIS CAPACITY TO MAKE GIFT AND TO SHOW THAT IT HAS ACTUALLY BEEN RECEIVED AS A GIFT FROM THE DONOR. DONOR WAS NOT RELATED TO THE DONEE AND HAD ALSO DENIED TO MAKE ANY GIFT TO ANY PERSON, THE ADDITION WAS UPHELD. 15. FURTHER RELIANCE WAS PLACED BY LD. DR ON THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. P. MOHAN KALA & OTHERS 291 ITR 278 (SC), TO CONTEND THAT AS PER SECTION 68, WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS ITA NO.3608/DEL/2006 11 OF THE ASSESSEE FOR ANY PREVIOUS YEAR, THE SAME MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THE PREVIOUS YEAR, IF THE EXPLANATION OFFERED BY THE ASSESSEE ABOUT THE NATURE AND SOURCE OF SUCH SU MS FOUND CREDITED IN THE BOOKS OF THE ASSESSEE IS, IN THE OPINION OF THE AO IS NOT SATISFACTORY. IT WAS HELD THAT SUCH OPINION FORMED ITSELF CONSTITUTE A PRIMA FACIE EVIDENCE AGAINST THE ASSESSEE VIZ., THE RECEIPT OF MONEY AND IF THE ASSE SSEE FAILS TO REBUT THE SAID EVIDENCE, THE SAME CAN BE USED AGAINST THE ASSESSEE BY HOLDING THAT IT WAS A RECEIPT OF AN INCOME NATURE. IT WAS FOUND THAT THE AO, CIT (A) AND THE TRIBUNAL HAVE CONCURRENTLY FOUND THE EXPLANATION OF THE ASSE SSEE UNACCEPTABLE, THEREFORE, BURDEN WAS ON THE ASSESSEE TO SHOW THAT EVEN IF THE EXPLANATION IS NOT ACCEPTABLE, THE MATERIAL AND SURROUNDING CIRCUMSTAN CES AVAILABLE ON RECORD DO NOT JUSTIFY THE SUM FOUND CREDITED IN THE BOOKS TO BE TREATED AS A RECEIPT OF AN INCOME NATURE. WHILE HOLDING SO, THEIR LORDSHIPS H AVE REFERRED TO THE DECISION OF LARGER BENCH IN THE CASE OF SUMATI DAYAL VS. CIT 21 4 ITR 801 (SC). THUS, IT WAS PLEADED BY LD. DR THAT THE AO WAS RIGHT IN MAKING T HE ADDITION AND THE CIT (A) HAS RIGHTLY UPHELD THE SAME. HE SUBMITTED THAT THE APPEAL FILED BY THE ASSESSEE SHOULD BE DISMISSED. 16. IN THE REJOINDER, IT WAS SUBMITTED BY THE LD. A R THAT THE CASE LAW RELIED UPON BY THE LD. DR ARE DISTINGUISHABLE ON FACTS. H E CONTENDED THAT THERE IS NO PROHIBITION IN LAW FOR THE ASSESSEE TO ACCEPT THE G IFT FROM NON-RELATION AND WE BEING THE CITIZENS OF INDIA ARE BOUND BY THE STATUT E. THE STATUTE DO NOT PUT ANY RESTRICTION ON RECEIVING THE GIFT BY THE ASSESSEE F ROM A NON-RELATIVE. HE SUBMITTED THAT DESPITE ALL THE DOCUMENTARY EVIDENCE PRODUCED TO PROVE THE GENUINENESS OF THE GIFT, THE AO HAS DISALLOWED THE SAME ON CONJECTURES AND SURMISES AND THE CIT (A) HAS ALSO WRONGLY UPHELD TH E ADDITION. HE, THEREFORE, SUBMITTED THAT THE ADDITION MADE ON ACCOUNT OF UNEX PLAINED GIFT SHOULD BE DELETED. 17. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE CAREFULLY GONE THROUGH THE CASE LAW RELIED UPON BY BOTH THE PARTIES BEFORE US AND ALSO CONSIDE RED THE FACTS OF THE PRESENT ITA NO.3608/DEL/2006 12 CASE. WE HAVE ALSO CAREFULLY PERUSED THE BANK ACCO UNT OF THE DONOR OUT OF WHICH THE GIFTS HAVE BEEN ADVANCED TO THE DONEE AND HIS HUF. IT IS A SAVING ACCOUNT NO.36532, WITH THE BANK OF RAJASTHAN LTD. A COPY OF SUCH BANK ACCOUNT IS PLACED AT PAGE 14 OF THE PAPER BOOK. IT IS OBSERVED THAT PRIOR TO CREDIT OF THREE GIFTS OF RS.10 LAC IN THE BANK ACCOUNT OF DONOR ON 10 TH AND 11 TH FEBRUARY, 2003, THE BALANCE IN BANK ACCOUNT WAS ONLY A SUM OF RS.20,905.39. THE BALANCE OF RS.20,905.39 WAS AS ON 28.12.2002. THER EAFTER ON 10 TH FEBRUARY, 2003 AN AMOUNT OF RS.3 LAC HAS BEEN CREDITED TO THE SAID BANK ACCOUNT ON ACCOUNT OF GIFT RECEIVED BY THE DONOR FROM M/S RAVE NDRA KUMAR GARG AND SONS HUF. THEREAFTER, ON NEXT DATE I.E., 11 TH FEBRUARY, 2003 TWO OTHER AMOUNTS OF RS.4 LAC AND RS.3 LAC ARE CREDITED IN ITS BANK ACC OUNT OF THE DONOR BY WAY OF INTER BANK CLEARING FROM THE ACCOUNT OF SMT. SUMITR A DEVI AND SMT. RATAN KUMARI GARG, RESPECTIVELY AND ALL THESE THREE ENTRI ES MADE THE BALANCE OF THE DONOR IN HER BANK ACCOUNT AS ON 11 TH FEBRUARY, 2003 A SUM OF RS.10,20,905.39 18. THE ABOVE MENTIONED THREE AMOUNTS OF GIFTS RECE IVED BY THE DONOR WERE CREDITED TO HER BANK ACCOUNT ON 10 TH AND 11 TH FEBRUARY, 2003. EVEN WITHOUT WAITING FOR THE CREDIT, THE DONOR HAS ISSUED THE CH EQUES TO ASSESSEE AND HIS HUF. IN NORMAL PRUDENCE IF ANYBODY IS RECEIVING GI FT OF RS.10 LAC WHO HAS THE WORTH LIKE DONOR, WILL THINK THAT WHAT HE WILL DO W ITH THE MONEY RECEIVED BY HIM AS AN AMOUNT OF GIFT FROM THREE DIFFERENT PERSONS. ON E CANNOT MAKE UP MIND IMMEDIATELY TO ADVANCE THE SIMILAR AMOUNT AS GIFT T O A PERSON TO WHOM HE IS NOT RELATED. THOUGH IT IS CLAIMED BY THE DONOR AND DON EE THAT THEY KNOW EACH OTHER FOR THE LAST 40 YEARS, BUT THE DONOR IN HER STATEME NT COULD NOT TELL THE PARTICULARS OF THE FAMILY MEMBERS OF THE DONEE. THIS FALSIFIES THE CLAIM OF THE DONOR AS WELL AS THE DONEE THAT THE GIFTS WERE GENUINELY GIVEN AN D TAKEN ON THE OCCASION OF THE BIRTH DAY OF THE DONOR. IT MAY BE MENTIONED THAT D ONOR, ACCORDING TO HER BALANCE SHEET, IS HAVING CAPITAL BALANCE OF AROUND RS.10 LA C. WHEN A PERSON WHO IS HAVING CAPITAL BALANCE OF RS.10 LAC RECEIVES THE GI FT OF RS.10 LAC WILL NOT ADVANCE THE SIMILAR AMOUNT TO THE OTHER PERSON AS A GIFT. ITA NO.3608/DEL/2006 13 19. ON 11 TH FEBRUARY, 2003 ITSELF AN AMOUNT OF RS.10 LAC (TWO ENTRIES OF RS.5 LAC EACH) HAS BEEN DEBITED TO THE BANK ACCOUNT OF T HE DONOR ON ACCOUNT OF ISSUE OF DD IN FAVOUR OF ASSESSEE AND HIS HUF WHICH REDUC E THE BANK BALANCE OF THE ASSESSEE BY SIMILAR AMOUNT OF RS.20,905.39. THE DO NOR IS RECEIVING GIFT OF RS.10 LAC OUT OF WHICH RS.7LAC IS RECEIVED ON THE SAME DA TE WHEN THE DONOR HAS MADE THE GIFT OF RS.10 LAC AND RS.3 LAC HAS BEEN RECEIVE D ONLY A DAY EARLIER. IT IS VERY DIFFICULT TO ACCEPT THAT THE DONOR, WHO HERSELF IS HAVING THE CAPITAL BALANCE OF ABOUT RS.10 LAC WHICH CONSISTED OF SHARES, ETC., WO ULD RECEIVE RS.10 LAC AS A GIFT AND ON THE SAME DATE WILL PASS ON THE SIMILAR AMOUN T OF GIFT TO THE PERSON WHO IS NOT HER RELATIVE AND WHO IS CLAIMED TO BE KNOWN FOR THE LAST 40 YEARS, BUT AT THE SAME TIME, THE DONOR DOES NOT KNOW THE NAMES AND DE TAILS OF THE FAMILY MEMBERS OF THE DONEE. IF A PERSON LIKE THAT OF DON OR IS RECEIVING GIFT OF RS.10 LAC AS A GIFT, PROBABLY HE WILL TAKE HIS TIME TO DECIDE AT LEAST THAT WHAT SHOULD BE DONE WITH THAT MONEY. IN THE PRESENT CASE, THERE I S ALMOST NO GAP BETWEEN RECEIVING THE GIFT AND PASSING ON THE SAME TO THE D ONEE AND HIS HUF. THIS FACT ALONE IS SUFFICIENT TO FORM AN OPINION THAT THE EXP LANATION SUBMITTED BY THE ASSESSEE IS NOT ONLY UNSATISFACTORY, BUT IS UNBELIE VABLE. IN THE CASE OF SUMATI DAYAL VS. CIT (SUPRA) IT IS OBSERVED BY THEIR LORDS HIPS THAT SECTION 68 ITSELF PROVIDES, WHERE ANY SUM IS FOUND CREDITED IN THE BO OKS OF THE ASSESSEE FOR ANY PREVIOUS YEAR, THE SAME MAY BE CHARGED TO INCOME-TA X AS THE INCOME OF THE ASSESSEE OF THE PREVIOUS YEAR IF THE EXPLANATION OF FERED BY THE ASSESSEE ABOUT THE NATURE AND SOURCE OF SUCH SUMS FOUND CREDITED I N THE BOOKS OF THE ASSESSEE IS IN THE OPINION OF AO NOT SATISFACTORY. IT WAS O BSERVED THAT SUCH OPINION FORMED BY THE AO ITSELF CONSTITUTE A PRIMA FACIE EVIDENCE AGAINST THE ASSESSEE, IF IT IS THE RECEIPT OF MONEY AND IF THE ASSESSEE FAILED TO REBU T THE SAID EVIDENCE, THE SAME CAN BE USED AGAINST THE ASSESSEE BY HOLDING THAT IT WAS A RECEIPT OF AN INCOME NATURE. IT WAS FOUND THAT THE EXPLANATION OFFERED BY THE ASSESSEE IN THAT CASE WAS UNACCEPTABLE. REFERRING TO THE SAID DECISION I T WAS OBSERVED BY THEIR LORDSHIPS OF HONBLE SUPREME COURT IN THE CASE OF C IT VS. P. MOHAN KALA & OTHERS (SUPRA) THAT THE FACT THAT THE TRANSACTIONS WERE THROUGH BANKING CHANNELS BY ITSELF IS OF NO CONSEQUENCES TO PROVE THE GENUIN ENESS OF THE GIFTS AND IF THERE ITA NO.3608/DEL/2006 14 IS A MATERIAL ON RECORD, THEN IT HAS TO BE HELD THA T GIFTS WERE NOT GENUINE. SIMILARLY, IN THE CASE OF SAJAN DASS & SONS VS. CIT (SUPRA), THE HONBLE DELHI HIGH COURT HAS HELD THAT MERE IDENTIFICATION OF THE DONOR AND SHOWING THE MOVEMENT OF THE GIFT AMOUNT THROUGH BANKING CHANNEL S IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT AND SINCE THE CLAIM OF GIFT IS MADE BY THE ASSESSEE, ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIFT, BUT ALSO HIS CAPACITY TO MAKE A GIFT AND THAT IT HA S ACTUALLY RECEIVED AS A GIFT FROM THE DONOR. 20. IF THE FACTS OF THE PRESENT CASE ARE EXAMINED IN THE LIGHT OF THE AFOREMENTIONED PRINCIPLES OF LAW, THEN IT IS TO BE HELD THAT IN THE PRESENT CASE THE ASSESSEE REMAINED UNABLE TO PROVE THE CREDIT WORTHI NESS OF THE DONOR AS WELL AS THE GENUINENESS OF THE TRANSACTION. HUMAN PROBABIL ITIES HAVE TO BE KEPT IN MIND WHILE DECIDING THE QUESTION THAT WHETHER THE EXPLAN ATION OF THE ASSESSEE IS ACCEPTABLE. IT HAS ALREADY BEEN POINTED OUT THAT A PERSON OF THE STATUS OF THE DONOR, WHO HERSELF IS HAVING THE CAPITAL ALMOST OF RS.10 LAC IS RECEIVING RS.10 LAC AS A GIFT FROM OTHER PERSONS AND PASSING SIMILAR AM OUNT ON THE SAME DATE TO A PERSON NOT RELATED TO HER, ITSELF IS SUFFICIENT TO SHOW THAT IT IS AGAINST ALL HUMAN PROBABILITIES. THERE IS NO MATERIAL/EVIDENCE TO RE MOVE THE SAID ANOMALY IN THE PRESENT CASE. THEREFORE, KEEPING IN VIEW THE ENTIR ETY OF THE FACTS AND KEEPING IN VIEW THE HUMAN PROBABILITIES IT HAS TO BE HELD THAT THE GENUINENESS OF THE GIFT RECEIVED BY THE ASSESSEE HAS NOT BEEN ESTABLISHED. MERE ESTABLISHING THE IDENTITY OF THE DONOR AND MERELY PLACING THE EVIDEN CE ON RECORD THAT THE TRANSACTIONS HAVE TAKEN PLACE THROUGH BANKING CHANN EL IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. HERE THE CREDIT WORTH INESS OF THE DONOR AND THE GENUINENESS OF GIFT HAS NOT BEEN ESTABLISHED. 21. THE DECISION IN THE CASE OF RANJANA KATYAL VS. ACIT (SUPRA) RELIED UPON BY LD. AR IS NOT APPLICABLE TO THE FACTS OF THE PRE SENT CASE AS IN THE SAID DECISION IT IS OBSERVED IN PARA 7.1 THAT EACH CASE HAS TO BE DECIDED ON THE BASIS OF ITS OWN FACTS, SINCE NO TWO CASES MAY BE IDENTICAL. IT WAS OBSERVED THAT THE GENERAL PRINCIPLE WHICH COULD BE CULLED FROM THE AUTHORITIE S IS THAT IT IS FOR THE ASSESSEE TO ITA NO.3608/DEL/2006 15 LEAD EVIDENCE TO PROVE THE IDENTITY AND CREDIT WORT HINESS OF THE DONOR AND THE GENUINENESS OF THE GIFT. NO SINGLE FACTOR CAN BE S AID TO CLINCH THE ISSUE IN FAVOUR OF THE ASSESSEE OR AGAINST HIM AND THE ENTIRE EVIDE NCE HAS TO BE ASSESSED ON A WHOLESOME BASIS. THE FACTS OF THE PRESENT CASE HAV E ALREADY BEEN ANALYSED IN THE ABOVE PART OF THIS ORDER AND IT HAS BEEN HELD T HAT THE ASSESSEE REMAINED UNABLE TO PROVE THE CREDIT WORTHINESS OF THE DONOR AND ALSO THE GENUINENESS OF THE GIFT.. THUS, THE CASE RELIED UPON BY LD. AR IS NOT APPLICABLE TO THE PRESENT CASE. 22. THE DECISION IN THE CASE OF CIT VS. R.S. SIBAL (SUPRA) IS ALSO OF NO HELP TO THE ASSESSEE AS IN THAT CASE THE A.O. DID NOT RAISE ANY QUERY WITH REGARD TO THE CAPACITY OF THE DONOR TO MAKE GIFT. THE GENUINENES S OF THE GIFT WAS DOUBTED ON ACCOUNT OF ALLEGED FAILURE ON THE PART OF THE ASSES SEE TO ESTABLISH HIS RELATIONSHIP WITH THE DONOR. HERE, IN THE PRESENT CASE, THE A.O . HAS RAISED THE BASIC DOUBT ABOUT THE CREDIT WORTHINESS OF THE DONOR AND GIFT I S NOT REJECTED ONLY ON THE GROUND THAT THERE IS NO RELATIONSHIP OF THE ASSESSE E WITH THE DONOR. IN THE PRESENT CASE, IT WAS THE CLAIM OF THE ASSESSEE THAT DONOR IS KNOWN TO HIS FAMILY FOR THE LAST 40 YEARS AND SIMILAR CLAIM WAS MADE BY THE DONOR. HOWEVER, DONOR COULD NOT EVEN TELL THE NAME OF THE FAMILY MEMBERS OF THE DONEE. THUS, THE FACTS OF THE PRESENT CASE DO NOT MATCH WITH THE FACTS IN THE CASE OF CIT VS. R.S. SIBAL (SUPRA). 23. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT T HE CIT (A) WAS RIGHT IN UPHOLDING THE ADDITION AS ASSESSEE WAS NOT ABLE TO ESTABLISH THE CREDIT WORTHINESS OF THE DONOR AND WAS ALSO NOT ABLE TO PR OVE THE GENUINENESS OF THE GIFT. WE DECLINE TO INTERFERE IN THESE FINDINGS OF THE CIT (A). 24. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 25. THE ORDER PRONOUNCED IN THE OPEN COURT ON 12.06 .2009. [DEEPAK R. SHAH] [I.P. BANSAL] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED, 12.06.2009. ITA NO.3608/DEL/2006 16 DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES