MANHARLAL DHIRAJLAL SHAH, MUMBAI V. ITO WD NO. 13(2)(3), MUMBAI

ITA 4652/MUM/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2089 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-05-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 10-07-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S S RANA AARSI PRA SAD
• Keywords: Gift
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 4652/M/2008 ASSESSMENT YEAR: 2005-06 MANHARLAL DHIRAJLAL SHAH, APPELLANT PROP. OF SURAJ CORPORATION, 301, RAUT CHAMBERS 340, SAMUEL STREET, VADGADI, MUMBAI 400 003. (AAFPS1666P) VS. INCOME TAX OFFICER, RESPONDENT 13(2)(3), AAYAKAR BHAVAN, CHURCHGAGE, MUMBAI 400 020 APPELLANT BY : MR. BHUPENDRA SHAH RESPONDENT BY : MR. S.S. RANA/AARSI PRASAD ORDER PER A.L. GEHLOT, A.M.: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT (A)- XIII, MUMBAI, PASSED ON 19.05. 2008 FOR T HE ASSESSMENT YEAR 2005-06. 2. THE SOLE GROUND RAISED BY THE ASSESSEE IN THIS A PPEAL IS IN RESPECT OF ADDITION ON ACCOUNT OF GIFT OF RS. 6.00 LAKHS. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO NOTICED THAT THE ASSESSEE CREDITED AN AMOUNT OF RS. 6,00,00 0/- AS GIFT RECEIVED, THE DETAILS OF WHICH ARE AS UNDER:- 1. 10.08.2004 CH. 690265 RS. 1,50,000/- 2. 03.09.2004 CH.690266 RS. 50,000/- ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 2 3. 10.01.2005 CH.690272 RS. 2,00,000/- 4. 14.02.2005 CH.690277 RS. 2,00,000/-. TOTAL RS. 6,00,000/- ============= 4. ON BEING ASKED TO JUSTIFY THE REASONS AND OCCASI ON FOR RECEIVING SUCH GIFTS ON VARIOUS DATES, THE ASSESSEE HAS NOT F URNISHED CONFIRMATION FROM THE GIFT DONOR NOR COULD A GIFT D EED AND EVEN THE ASSESSEE NOT FURNISH SELF DECLARATION FROM MR. RAMN IKLAL, DONOR THAT HE HAS MADE THE GIFT OUT OF NATURAL LOVE AND AFFECT ION. ON ENQUIRY FROM THE BANK, THE AO NOTICED THAT THE BANK STATEME NT OF DONOR HAS OPERATED BY POWER OF ATTORNEY HOLDER MR. VINOD VASA , CHARTERED ACCOUNTANT OF GIFT DONOR. ON BEING ASKED TO JUSTIFY THE REASONS AND OCCASION FOR RECEIVING SUCH GIFTS ON VARIOUS DATES, THE ASSESSEE HAS NOT FURNISHED EVEN A COPY OF PASSPORT, PLACE OF STA Y OF MR. RAMNIKLAL, NATURE OF BUSINESS CARRIED OUT BY HIM ETC. WHEN THE AO ASKED THE ASSESSEE TO FURNISH DETAILS OF CREDITWORTHINESS OF THE GIFT DONOR, THE ASSESSEE COULD NOT FURNISH ANY SUCH DETAILS, REASON S OR PROVE THE CREDITWORTHINESS OF THE GIFT DONOR. ON VERIFICATION OF RETURN OF INCOMES OF MR. RAMNIKLAL PATEL FOR AY 2004-05 & 2005-06, TH E AO NOTICED THAT THE INCOME DECLARED BY HIM WAS ONLY RS. 42,517/- AN D RS. 44,970/-. THE AO FURTHER NOTICED THAT NRE ACCOUNT DOES NOT SH OW SUBSTANTIAL REMITTANCES, WHICH WILL PROVE THE WEALTH/CREDITWORT HINESS OF MR. RAMNIKLAL PATEL. THE DEPOSITS IN NRE ACCOUNTS WERE MOSTLY FROM HARSHWA INVESTMENTS ON ACCOUNT PAYMENTS. IT IS ALSO NOTICED BY THE AO THAT AS PER THE RBI GUIDELINES, THE DEPOSITS PER MITTED IN NRE ACCOUNT WERE REQUIRED TO BE IN FOREIGN CURRENCY REM ITTANCES FROM ABROAD THROUGH NORMAL BANKING CHANNELS. HOWEVER, IN THE CASE OF SHRI RAMNIKLAL PATEL, THIS RULE HAS BEEN GROSSLY VI OLATED. THE AO OBSERVED THAT THE ACCOUNT OF MR. RAMNIKLAL WAS USED AS A CHANNEL TO TAKE SUCH ALLEGED GIFTS. IT WAS ALSO NOTICED FROM T HE BANK STATEMENT OF MR. RAMNIKLAL PATEL, THAT HE HAS ALSO GIVEN SUCH EN TRIES TO OTHER PERSONS. THE AO RELIED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. DURGAPRASAD MORE, 82 ITR 540 (SC) AND AFTER ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 3 CONSIDERING THE CIRCUMSTANCES OF THE CASE, THE AO W AS OF THE VIEW THAT THE ASSESSEES CLAIM OF GIFT IS A NON-GENUINE TRANSACTIONS AND THEREFORE THE SAME IS TREATED AS UNEXPLAINED CASH C REDIT U/S 68 OF THE ACT. THE AO MADE THE ADDITION OF RS. 6.00 LAKHS UND ER THE HEAD INCOME FROM OTHER SOURCES. THE CIT(A) CONFIRMED TH E ORDER OF THE AO BY OBSERVING AS UNDER:- 2.5 I HAVE CONSIDERED THE CONTENTION OF THE APPELLA NT. WHEN THE APPELLANT RECEIVES A GIFT IT IS FOR THE APPELLANT T O PROVE THE GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF THE PERSON. A FURTHER REQUIREMENT IS THE OCCASION FOR WHICH GIFTS . A BLAND STATEMENT OF NATURAL LOVE AND AFFECTION CANNOT BE O F MUCH HELP TO THE APPELLANT, IF THE STATEMENT IS NOT BACKED BY AN Y PROOF. THE APPELLANT FAILED TO PROVIDE ANY PROOF REGARDING GEN UINENESS OF TRANSACTION, OCCASION OF SUCH GIFTS AND CREDITWORTH INESS OF SUCH PERSON. THE COPY OF RETURN OF INCOME OF DONOR FILED BY THE APPELLANT DOES NOT PROVE ANYTHING. THE GIFT AMOUNT HAS NOT COME OUT OF THIS INCOME. JUST BECAUSE THE AMOUNT IS RECE IVED IN A/C PAYEE CHEQUE WILL NOT MEAN THAT THE TRANSACTION HAS TO BE ACCEPTED AS GENUINE. THERE IS NO PROOF THAT SHRI PA TEL HAD GIVEN THE AMOUNT OUT OF HIS OWN INCOME. FURTHER THE AMOUN TS HAVE BEEN RECEIVED ON FOUR DATES. WHAT WAS THE OCCASION OF SUCH GENEROSITY BY THE UNCLE? EVEN IF LOVE AND AFFECTION IS CONSIDERED, THE SAME IS NEVER ONE SIDED. THERE WAS NO FLOW OF G IFT FROM THE APPELLANT TO RELATIVES OF THIS UNCLE. THE UNCLE HA S ALSO GIVEN GIFTS TO OTHER PERSONS INCLUDING OTHER BROTHER OF THE APP ELLANT. THIS MAKES HIM A PROFESSIONAL GIFT GIVER. THE CIRCUMSTAN TIAL CIRCUMSTANCES CANNOT BE IGNORED. HENCE I HAVE NO RE ASON TO DISTURB THE FINDING OF THE AO. I CONCUR WITH THE RE ASONING OF THE AO WHILE TREATING THE GIFT AS UNEXPLAINED CASH CRED IT U/S 68 OF THE IT ACT. THE SAME IS CONFIRMED. THE GROUND FAILS . 5. THE LEARNED AR SUBMITTED THAT THERE IS A BLOOD R ELATION IN BETWEEN THE ASSESSEE AND THE DONOR. THE LEARNED AR REFERRED PAGES 10 & 11 OF THE ASSESSEES PAPER BOOK WHERE PHOTO COPIE S OF PAN OF ASSESSEE, LILAVANTI DHIRAJLAL SHAH, AND RAMNIKLAL R AOJIBHAI A PATEL TO SHOW THAT RAMNIKLAL PATEL IS THE BROTHER OF THE MOT HER OF ASSESSEE. THE LEARNED AR SUBMITTED THAT THE DONOR IS THE ASSE SSEES MATERNAL UNCLE. THE LEARNED AR FURTHER SUBMITTED THAT EVEN I N THE PRESENT PROVISIONS OF THE ACT, GIFTS FROM RELATIVES ARE EXE MPT FROM TAX. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAS FURNISHE D GIFT CONFIRMATION AND POWER OF ATTORNEY SIGNED BY THE CO NSTITUTED POWER OF ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 4 ATTORNEY, WHICH HAS BEEN PLACED AT PAGE 13 OF ASSES SEES PAPER BOOK. THE LEARNED AR FURTHER SUBMITTED THAT THE CONSTITUT ED ATTORNEY HAS FILED A CONFIRMATION, WHICH HAS BEEN PLACED AT PAGE 12 OF ASSESSEES PAPER BOOK. THE LEARNED AR SUBMITTED THAT THE ASSES SEE HAS ALSO FURNISHED DONORS COPY OF RETURN AND ACKNOWLEDGMENT, WHICH HAS BEEN PLACED AT PAGES 20 TO 23 OF ASSESSEES PAPER BOOK. THE LEARNED AR REFERRED PAGE NO. 25 OF THE PAPER BOOK AND SUBMITTE D THAT THE ASSESSEE HAS FURNISHED COPY OF DONORS BANK ACCOUNT , WHICH HAS BEEN PLACED AT PAGES 25 TO 29 OF ASSESSEES PAPER BOOK. THE LEARNED AR, WHILE REFERRING PAGE 61 AND ONWARDS, SUBMITTED THAT THE ASSESSEE PROVED THE GENUINENESS OF THE GIFT, AND IDENTITY OF THE DONOR BY SUBMITTING VARIOUS DETAILS. THE DONOR WAS WORKING A T KENYA WITH DIFFERENT COMPANIES. PAGES 64 OF THE PAPER BOOK ON WARDS ARE COPIES OF DMAT ACCOUNT OF DONOR. THE LEARNED AR FURTHER SU BMITTED THAT THE GIFT WAS GIVEN TO THE ASSESSEE BY DONOR, WHO IS IN BLOOD RELATION. AS PER THE DECISION OF ITAT IN THE CASE OF DCIT VS. RA MDEO KUMAR CHITLANGIA, [2004] 89 TTJ 346 THE BLOOD RELATION IS NOT A CONDITION PRECEDENT FOR MAKING A VALID GIFT. THE LEARNED AR R ELIED UPON THE ABOVE JUDGMENT AND SUBMITTED THAT WHEN THE DONOR IS ASSESSED TO TAX, THE IDENTITY AND CREDITWORTHINESS HAS BEEN PRO VED BY THE ASSESSEE. THE GIFTS THROUGH BANKING CHANNEL, THEREF ORE, THE AO WAS NOT JUSTIFIED IN MAKING THE ADDITION OF THE GIFTS O N PRESUMPTIONS, ASSUMPTIONS, SURMISES AND CONJECTURES. 6. THE LEARNED DR, ON THE OTHER HAND, RELIED UPON T HE ORDERS OF THE REVENUE AUTHORITIES AND SUBMITTED THAT THE ASSESSEE HAS FAILED TO FURNISH NECESSARY DETAILS AS NOTED BY THE AO. THE A SSESSEE HAS ALSO FAILED TO POINT OUT THE OCCASIONS ON WHICH THE GIFT S WERE RECEIVED. THE LEARNED DR FURTHER SUBMITTED THAT THE ASSESSEE HAS FAILED TO ESTABLISH THAT THE GIFTS RECEIVED WERE GENUINE GIFTS. THE LEA RNED DR WHILE REFERRING PAGE 60 TO 68 OF THE ASSESSEES PAPER BOO K SUBMITTED THAT THESE PAPERS WERE NOT SUBMITTED BEFORE THE AO. THE LEARNED DR HAS ALSO POINTED OUT THAT SIGNATURE OF RAMNIKLAL PATEL GIVEN IN ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 5 CONFIRMATION OF THE GIFT OF WHICH COPY HAS BEEN PLA CED AT PAGE 11 AND SIGNATURE IN PAN OF WHICH COPY HAS BEEN PLACED AT P AGE 10 ARE NOT TALLIED. THE LEARNED DR SUBMITTED THAT PAGE 24 WHER E DETAILS OF THE GIFT RECEIVED LIKE CHEQUE NOS. AND OTHERS, COPY OF ELECTRICITY BILL AND COPY OF CERTIFICATE FROM AVANTI NIKETAN COOPERATIVE HOUSING SOCIETY LTD., PLACED AT PAGES 49 & 50 OF THE ASSESSEES PAP ER BOOK WERE NEITHER PRODUCED BEFORE THE AO NOR BEFORE THE CIT(A ). THE LEARNED DR SUBMITTED THAT ONUS OF PROVING GENUINENESS OF THE G IFT AND OTHER INGREDIENTS IS ON THE ASSESSEE. THE LEARNED DR RELI ED UPON THE FOLLOWING DECISIONS IN SUPPORT OF REVENUES CASE:- 1. CIT V. P. MOHANAKALA & ORS., 161 TAXMAN 169 (SC ) 2. YASHPAL GOEL V. CIT, 181 TAXMAN 175 (P&H) 3. JASPAL SINGH V. CIT, 290 ITR 306 (P&H) 4. TRATH RAM GUPTA V. CIT, 177 TAXMAN 294 (P&H) 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD AS WELL AS GONE THROUGH THE DECI SIONS CITED. UNDER SECTION 68 OF THE ACT THE ASSESSEE IS REQUIRED TO P ROVE THREE IMPORTANT CONDITIONS, NAMELY, (I) THE IDENTITY OF THE CREDITO R, (II) THE CAPACITY OF THE CREDITOR TO ADVANCE THE MONEY, AND (III) THE GE NUINENESS OF THE TRANSACTION. WHAT EVIDENCE WOULD BE SUFFICIENT TO E STABLISH THE SAID CONDITIONS AND WHAT MATERIAL WOULD BE RELEVANT IN A PARTICULAR CASE WOULD DEPEND ON THE FACTS OF EACH CASE. WHEN AN EXP LANATION IN REGARD THERETO IS GIVEN BY THE ASSESSEE, THEN, IT I S FOR THE ITO TO BE SATISFIED WHETHER THE SAID EXPLANATION IS CORRECT O R NOT. IT IS IN THIS REGARD THAT ENQUIRIES ARE USUALLY MADE IN ORDER TO FIND OUT AS TO WHETHER, FIRSTLY, THE PERSONS FROM WHOM MONEY IS AL LEGED TO HAVE BEEN RECEIVED ACTUALLY EXISTED OR NOT. SECONDLY, DEPENDI NG UPON THE FACTS OF EACH CASE, THE ITO MAY EVEN BE JUSTIFIED IN TRYING TO ASCERTAIN THE SOURCE OF THE DEPOSITOR ASSUMING HE IS IDENTIFIED, IN ORDER TO DETERMINE WHETHER THE DEPOSITOR IS A MERE NAME LEND ER OR NOT. BE THAT AS IT MAY, IT IS CLEAR THAT THE ITO HAS JURISDICTIO N TO MAKE ENQUIRIES WITH REGARD TO THE NATURE AND SOURCE OF A SUM CREDI TED IN THE BOOKS OF ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 6 ACCOUNT OF AN ASSESSEE AND IT WOULD BE IMMATERIAL A S TO WHETHER THE AMOUNT SO CREDITED IS GIVEN THE COLOUR OF A LOAN OR A SUM REPRESENTING THE SALE PROCEEDS OR EVEN RECEIPT OF SHARE APPLICAT ION MONEY OR GIFTS. THE USE OF THE WORDS ANY SUM FOUND CREDITED IN THE BOOKS IN SECTION 68 INDICATES THAT THE SAID SECTION IS VERY WIDELY W ORDED AND AN INCOME TAX OFFICER IS NOT PRECLUDED FROM MAKING AN ENQUIRY AS TO THE TRUE NATURE AND SOURCE THEREOF EVEN IF THE SAME IS CREDITED AS RECEIPT OF GIFTS. THERE IS NO QUARREL WITH THE PROPOSITION THAT A MERE IDENTIFICATION OF THE DONOR AND SHOWING THE MOVEMEN T OF THE GIFT AMOUNT THROUGH BANKING CHANNELS IS NOT SUFFICIENT T O PROVE THE REQUIREMENT OF THE SECTION 68 OF THE ACT. SINCE THE CLAIM OF A GIFT IS MADE BY THE ASSESSEE, THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE DONOR BUT HIS CAPACITY TO MAKE SUCH GIFT AND THE GENUINENESS OF THE GIFT/TRANSACTION. 8. THE ADMITTED FACTS OF THE CASE UNDER CONSIDERATI ON ARE THAT GIFTS WERE RECEIVED ON VARIOUS DATES WITHOUT ANY OCCASION S. THE ASSESSEE DID NOT FURNISH ANY CONFIRMATION FROM THE DONOR THA T ON WHAT OCCASION, THE GIFTS WERE GIVEN. DURING THE COURSE O F HEARING, THE LEARNED AR POINTED OUT FROM PAGE 11 OF ASSESSEES P APER BOOK THAT CONFIRMATION WAS FILED FROM THE DONOR WHEREIN IT HA S BEEN CONFIRMED THAT THE AMOUNT WAS GIFTED OUT OF ONLY LOVE AND AFF ECTION BUT WE FIND THAT CONFIRMATION IS DATED 26 TH JUNE09 WHEREAS THE ORDER OF CIT(A) IS DATED 19 TH MAY, 2008, IT MEANS THAT, CONFIRMATION IS NEITHER BEFORE THE AO NOR BEFORE THE CIT(A). THE AO HAS CATEGORICA LLY MENTIONED IN HIS ORDER THAT THE ASSESSEE DID NOT FURNISH CONFIRM ATION OF GIFT DONOR OR GIFT DEED OR OTHER MATERIAL OR THE SO CALLED BAN K ACCOUNT FROM WHERE THE ASSESSEE RECEIVED GIFT WAS OPERATED BY PO WER OF ATTORNEY HOLDER, THE C.A. OF DONOR. THE ASSESSEE HAS FAILED TO PROVE THE CREDITWORTHINESS OF THE DONOR. THE ASSESSEE HAS FAI LED TO PROVE THAT THE AMOUNT WAS RECEIVED OUT OF INDIA IN ACCORDANCE WITH LAW. ON THE CONTRARY, IT WAS NOTED BY THE AO THAT THERE IS A GR OSS VIOLATION OF GUIDELINES OF RBI IN RESPECT OF FOREIGN CURRENCY RE MITTANCE FROM ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 7 ABROAD. THE ASSESSEE HAS ALSO GIVEN SUCH GIFTS TO OTHER PERSONS. THE ASSESSEE IS STATED TO BE NRI. IT IS RELEVANT TO MEN TION HERE THAT IN INDIA THE ASSESSEE IS REQUIRED TO MAINTAIN THE PRO PER ACCOUNTS OF THEIR INCOME IN ACCORDANCE WITH THE ACCOUNTING PRIN CIPLES AS WELL AS IN ACCORDANCE WITH THE INCOME TAX ACT. FOR PROVING CREDITWORTHINESS OF ANY PERSON, ONE HAS TO SEE THE BALANCE SHEET OF THAT PERSON AS ON A PARTICULAR DATE IF HE IS MAINTAINING BOOKS OF ACCOU NT OTHERWISE STATEMENT OF AFFAIRS. IN CASE WHERE AN ASSESSEE IS ASSESSED TO TAX, IN SUPPORT OF CREDITWORTHINESS, BALANCE SHEET IN CASE WHERE AN ASSESSEE IS MAINTAINING BOOKS OF ACCOUNT AND IF HE IS NOT MA INTAINING REGULAR BOOKS OF ACCOUNT, A STATEMENT OF STATE OF AFFAIRS S HOULD BE SUBMITTED. IN TURN, THE AO IS TO EXAMINE THESE STATEMENTS FROM POINT OF VIEW OF CREDITWORTHINESS OF THE ASSESSEE OR THE PARTY. WHEN IN INDIA SUCH A SYSTEM OF MAINTENANCE OF ACCOUNT IS THERE NATURALLY OTHER DEVELOPED COUNTRY SHOULD ALSO HAVE SUCH SYSTEM. BUT IT IS SUR PRISED TO NOTE THAT IN THE CASE UNDER CONSIDERATION THERE ARE NO MATERI ALS ON RECORD TO SHOW THAT DONOR WAS MAINTAINING ANY SUCH BOOKS OF A CCOUNT OR STATEMENT OF AFFAIRS OF THEIR FOREIGN INCOME IN ACC ORDANCE WITH THE RULE OF THEIR COUNTRY OR IF ANY MAINTAINED, THE SAM E WERE NOT PRODUCED. IN THE CASE UNDER CONSIDERATION THE ONUS IS ON THE ASSESSEE AS HE POSSESSES ABOVE SUCH ALL NECESSARY INFORMATIO N AND MATERIAL BUT SAME ARE NOT FURNISHED. THE LAW OF EVIDENCE MAN DATE THAT I F THE BEST EVIDENCE IS NOT PRODUCED BEFORE THE COURT, AN ADVERSE INFERENCE CAN BE TAKEN. APART FROM ABOVE, IF WE CONSIDER THE TOTALITY OF THE FACTS OF THE CASE, WE ARE OF THE CONSIDERED VIEW THAT THE REVENUE AUTHORITIES HAS RIGHTLY HELD THAT THE ASSESSEE HAS FAILED TO PR OVE THE CREDITWORTHINESS OF THE DONOR. IT HAS ALSO BEEN FOU ND THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE TRANSACTION AS NO MATERIAL EVIDENCE IS ON RECORD TO SHOW THAT THE GIF TED AMOUNT IN FACT WAS RECEIVED FROM OUTSIDE INDIA. THE CIT (A) HAS RI GHTLY HELD THAT A BLAND STATEMENT OF NATURAL LOVE AND AFFECTION CANNO T BE OF MUCH HELP TO THE APPELLANT, IF THE STATEMENT IS NOT BACKED BY ANY PROOF. THE APPELLANT FAILED TO PROVIDE ANY PROOF REGARDING GEN UINENESS OF ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 8 TRANSACTION, OCCASION OF SUCH GIFTS AND CREDITWORTH INESS OF SUCH PERSON. THE COPY OF RETURN OF INCOME OF DONOR FILED BY THE APPELLANT DOES NOT PROVE ANYTHING. THE GIFT AMOUNT HAS NOT CO ME OUT OF THIS INCOME. JUST BECAUSE THE AMOUNT IS RECEIVED IN A/C PAYEE CHEQUE WILL NOT MEAN THAT THE TRANSACTION HAS TO BE ACCEPT ED AS GENUINE. THERE IS NO PROOF THAT SHRI PATEL HAD GIVEN THE AMO UNT OUT OF HIS OWN INCOME. FURTHER, THE ASSESSEE HAS FAILED TO PROVE T HE OCCASION, ON WHICH, THE ASSESSEE RECEIVED THE GIFT. CERTAIN MAT ERIALS WERE STATED TO BE FILED BEFORE REVENUE AUTHORITIES BUT THE SUBMISS ION OF THE DR IS THAT THE SAME WERE NOT FILED. THERE ARE DIFFERENCE IN ASSESSEES SIGNATURE, POINTED OUT BY THE LEARNED DR. ( PAGE NO 10 AND 11 OF THE PAPER BOOK).IN THE LIGHT OF ABOVE DISCUSSION WE FIN D THAT THE AO HAS RIGHTLY FOLLOWED THE JUDGMENT OF THE HONBLE APEX C OURT IN THE CASE OF CIT V. DURGAPRASAD MORE, 82 ITR 540 (SC). THE AO IS ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES. THE LEARNED AR HAS RELIED UPON THE DECISION OF ITAT, JODHPUR IN THE CASE OF DCIT V S. RAMDEO KUMAR CHITLANGIA, [2004] 89 TTJ (JD) 346, WHICH IS DISTIN GUISHABLE ON THE FACTS. IN THAT CASE, GIFT WAS RECEIVED BY THE MINOR SON OF THE ASSESSEE FROM NRI ACCOUNT OF THE DONOR AND THE IDENTITY, CRE DITWORTHINESS/ CAPACITY OF THE DONOR AND GENUINENESS OF THE GIFT W AS ALSO PROVED. THEREFORE, THE SAID DECISION DOES NOT HELP TO THE C ASE OF THE ASSESSEE AS FACTS OF THAT CASE ARE DIFFERENT. AFTER CONSIDE RING THE TOTALITY OF THE FACTS OF THE CASE WE INCLINE TO UPHOLD THE ORDER OF THE CIT(A) ON THIS COUNT. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF MAY, 2010 SD/- SD/- (D. MANMOHAN) (A.L. GEHLOT) VICE PRESIDENT ACCOUNTAN T MEMBER DATED: 14 TH MAY, 2010 ITA NO. 4652/M/08 MANHARLAL DHIRAJLAL SHAH 9 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV S.NO. DESCRIPTION DATE INTLS 1. DRAFT DICTATED ON 26.4.10 SR.P.S./P.S 2. DRAFT PLACED BEFORE AUTHOR 05.05.10 SR.P.S/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR.P.S./PS SR.P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON SR. P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER