Sri. VIVEK N. JAJODIA, MUMBAI V. ITO Wd. - 16(2)(2), MUMBAI

ITA 5037/MUM/2006

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 1218 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 14-06-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 21-09-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAGDISH
• Keywords: Unexplained cash credit; Gift

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI R.S. SYAL (AM) AND SMT. ASHA VIJAYARAG HAVAN (JM) ITA NO.5037/MUM/2006 ASSESSMENT YEAR-2001-02 SHRI VIVEK N. JAJODIA, 62, ANUPAMA, 11, MANAV MANDIR ROAD, WALKESHWAR, MUMBAI-400 006 PAN-AABPJ 2189E VS. THE ITO, WARD 16(2)(2), MATRU MANDIR, OPP. BHATIA HOSPITAL, MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PRAKASH JOTWANI RESPONDENT BY: SHRI JAGDISH O R D E R PER SMT. ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT. 4.7.2006 PASSED BY THE LD. CIT(A)-XVI, MUMBAI F OR THE ASSESSMENT YEAR 2001-02 IN THE MATTER OF PENALTY U/S. 271(1)( C) OF THE I.T. ACT. 2. THE FACTS OF THE CASE ARE THAT THE ASSESSEE RECE IVED GIFTS FROM THREE FOREIGNERS AMOUNTING TO RS. 77,78,535.71 AS PER DET AILS BELOW: NAME & ADDRESS OF THE DONOR DATE OF GIFT MORE OF GIFT AMOUNT IN FOREIGN CURRENCY AMT. IN INDIAN RS. DATE OF CREDIT IN BANK A/C OF THE APPELLANT M/S. ZEITZ, M/S.HEUMANN PHARMA FEUCHTPLANTNEURNBERGER STRASSEE, 12 D, 90537, FEUCHT, GERMANY PERIOD FROM 1.4.01 TO 31.3.01- NO SPECIFIC DATE MENTIONED TELEGRAPHIC TRANSFER $21435 EURO 28420 2,133,687 16.3.2001 MR. J. FLANTUA, M/S.SOLVAY PHARMACEUTICALS, P.O. BOX NO. 900, 1380 DA WEESP, C.J. VAN HOUTENIAAN 36, 1381 - DO - - DO - 101,179.5 4,640,204 28.3.2001 ITA NO. 5037/M/06 2 CP WEESP, NETHERLAND MR. JI HOON SOHN, M/S. DONG-A PHARMA, 252, YNDU-DONG, DONGDAUMUM-KU, SEOUL 130-708, KOREA - DO - - DO - 22,000 1,004,645 9.3.2001 TOTAL - 7,778,536 THE APPELLANT CLAIMED THAT HE RECEIVED THESE GIFTS ON THE OCCASION OF HIS MARRIAGE FROM THE FRIENDS OF HI S FATHER WHO COULD NOT ATTEND THE MARRIAGE ON 17.1.2000. THE AO ADDED THE AMOUNTS OF GIFTS U/S. 68 OF THE I.T. ACT, 1961 ON THE GROUND THAT THE APPELLANT HAD NOT PROVED THE IDENTI TY AND THE CREDITWORTHINESS OF THE DONORS AND THE SOURCE OF TH E GIFT. THE REASONS FOR CONFIRMATION OF THE ADDITION OF MARRIAG E GIFTS AS PER ORDER OF THE CIT(A) ARE SUMMARIZED BELOW: (I) THE CONFIRMATIONS AND NET WORTH CERTIFICATES G IVEN BY THE DONORS CONTAINED EXACTLY SIMILAR WORDING, THOUG H THE DONORS CAME FROM THREE DIFFERENT COUNTRIES. (II) FOR EXAMINATION OF CLOSENESS OF FRIENDSHIP OF APPELLANTS FATHER WITH THE DONORS, THE APPELLANT WAS ASKED TO FURNISH THE FOLLOWING DOCUMENTS: (A) COPIES OF PASSPORT OF THE ASSESSEE AND OTHER FAMILY MEMBERS. (B) COPY OF THE PASSPORT OF THE FATHER OF THE APPELLANT. (C) DETAILS OF VISITS OF DONORS TO INDIA ALONG WITH DOCUMENTARY EVIDENCE. D) COPIES OF BANK ACCOUNT OF THE ASSESSEE IN WHICH THE GIFTS ARE CREDITED E) DATES OF GIFTS F) COPIES OF ANY CORRESPONDENCE WITH THE DONORS (G) DETAILS OF FUNCTIONS IN THE FAMILY OF THE APPEL LANT ATTENDED BY THE DONORS WITH DOCUMENTARY EVIDENCE PHOTOGRAPHS, VIDEO FILMS, ETC. (H) A DETAILED NOTE ON THE NATURE OF RELATIONSHIP O F THE APPELLANT WITH THE DONORS. (I) TO PRODUCE THE ASSESSEE ON THE NEXT DATE OF HEARING. (III) THE APPELLANT PRODUCED COPIES OF PASSPORTS, B UT FAILED TO PRODUCE OTHER DETAILS. THOUGH IT WAS CLAIMED TH AT DONORS ITA NO. 5037/M/06 3 HAD CLOSE RELATIONSHIP WITH THE FATHER OF THE APPEL LANT SINCE LAST 20-25 YEARS, PHOTOCOPY OF HIS PASSPORT SHOWED DURING THE PERIOD 1997-2001, APPELLANTS FATHER HAD VISITE D GERMANY ON 8.12.1997 AND KOREA ON 3.7.1997 AND 19.2.1998. THE DONORS HAD NEVER VISITED INDIA AND THE APPELLANT FA ILED TO PROVE THE CLOSENESS OF HIS FATHER OF ANY OF HIS FAM ILY MEMBERS WITH THE DONORS. THUS, GENUINENESS OF GIFT TRANSAC TION WAS NOT ESTABLISHED. ABSENCE OF GENUINENESS WAS STRENG THENED FROM THE FACT THAT THE SO CALLED MARRIAGE GIFTS WER E RECEIVED IN MARCH, 2001 THOUGH, APPELLANTS MARRIAGE TOOK PLACE ON 17.1.2000. THUS, IT WAS A CASE OF APPELLANTS FAIL URE TO ESTABLISH IDENTITY AND CREDITWORTHINESS OF THE DONO RS AND GENUINENESS OF THE GIFT TRANSACTION. 3 . ON FURTHER APPEAL TO THE TRIBUNAL, THE TRIBUNAL CO NFIRMED THE ORDER OF THE LD. CIT(A) IN ITA NO. 460/M/05 DT. 23. 1.2009. 4. IN THE APPEAL BEFORE US WITH RESPECT TO THE PENA LTY LEVIED U/S. 271(1)(C), THE ADDITION OF RS. 77,78,535/-, THE LD. CIT(A) HAD CONFIRMED THE PENALTY LEVIED BY THE AO ON THE GROUND THAT THE ASSESSEE WAS GUILTY OF CONCEALMENT OF INCOME AND FURNISHING OF INACCURA TE PARTICULARS OF INCOME IN RESPECT OF THE RECEIPT OF ALLEGED MARRIAG E GIFTS AT RS. 77,78,535/-. IN ORDER TO VERIFY THE GENUINENESS OF THE TRANSACTION THE ASSESSEE WAS SUMMONED BY THE AO AND RECORDED THE ST ATEMENT ON 22.3.2004, THE AOS ORDER AT PAGES 2,3 & 4 ARE REPR ODUCED HEREUNDER: Q.NO. 3 PLEASE STATE YOUR MARITAL STATUS? ANS I GOT MARRIED ON 17 TH JANUARY, 2000 Q. NO. 8 WHETHER YOU HAVE RECEIVED ANY GIFT DURING THE F.Y. 2000-01 ANS YES I HAVE RECEIVED THE FOLLOWING GIFTS 1)MR. J.I. HOONSOHN- $22000 -RS. 10,06,645/- 2)MR. J. FLANTUA -$101180 RS.46,40,203/- 3)MR. HANZ ZEITZ $ 21435 EURO 28420 RS.21,33,68 7/- Q.NO.9 HOW DO YOU KNOW THESE PARTIES? ANS THEY ARE FRIENDS OF MY FATHER SINCE LAST 20 TO 25 YEARS Q. NO. 10 ON WHICH OCCASION YOU HAVE RECEIVED THE G IFT? ITA NO. 5037/M/06 4 ANS. I HAVE RECEIVED THE GIFT ON OCCASION OF MY MARRIAGE. THE ABOVE PERSONS COULD NOT ATTEND MY MARRIAGE INSPITE OF BEING GOOD FAMILY FRIENDS HAVE GIFTED THE ABOVE AMOUNTS TO ME. NORMALLY THEY ATTEND MY OTHER FAMILY FUNCTIONS PERSONALLY WHENEVER POSSIBLE. I AM GIVING HEREWITH MY MARRIAGE CARD AS A PROOF. Q.NO. 11 HAVE YOU RECEIVED ANY GIFT BEFORE FROM THE SE PEOPLE? ANS. NO FROM THE STATEMENT OF THE ASSESSEE IT IS CLEAR THA T THE DONORS ARE THE FRIENDS OF HIS FATHER, WHO IS A BUSINESSMAN. ALL THESE GIFTS AMOUNTING TO RS. 77,78,536/- HAVE BEEN CREDITED TO THE ASSESSEES BANK ACCOUNT NO. 0508515 OF DEUTECHE BY WAY OF TELEGRAPHIC TRANSFER. IT MAY BE WORTHWHILE TO MENTION HERE THAT DURING THE PREVIOUS YEAR THE ASSESSEE HAS GIFTED A SUM OF RS. 33,30,000/- TO HIS BROTHER THE DETAILS OF WHICH ARE AS UNDER: SR. NO . DATE OF THE GIFT CHEQUE NO., BANK AMOUNT 1 3.4.2000 611537 CANARA BANK RS. 9,00,000 2. 4.4.2000 611539 - CANARA BANK RS .7,00,000 3. 6.4.2000 622961 - CANARA BANK RS. 2,80,000 4. 6.4.2000 622962 - CANARA BANK RS. 4,50,000 5. 7.4.2000 622964 - CANARA BANK RS. 5,00,000 6. 8.4.2000 622965 - CANARA BANK RS. 5,00,000 TOTAL RS.33,30,000 5. THE AO OBSERVED AS UNDER: FURTHER IT MAY BE MENTIONED THAT THE MARRIAGE OF TH E ASSESSEE TOOK PLACE ON 17.1.2000 WHERE THE ABOVE SO CALLED D ONORS HAVE GIFTED THE MARRIAGE GIFT DURING THE PERIOD 1.4 .2000 TO 31.3.2001. THUS IT CANNOT BE SAID THAT THE AMOUNT CREDITED TO THE CAPITAL ACCOUNT OF THE ASSESSEE WAS RECEIVED AS MARRIAGE GIFT. FROM THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE IT IS SEEN THAT IDENTITY AND CREDIT WORTHINESS OF THE DONORS A ND THE ITA NO. 5037/M/06 5 GENUINENESS OF THE GIFTS HAVE NOT BEEN ESTABLISHED/ PROVED BY THE ASSESSEE. IT IS SEEN THAT THE ASSESSEE HAS FAI LED TO PROVE THE FOLLOWING: (I) IDENTITY OF PERSON MAKING THE GIFT NOT ESTABLIS HED: ASSESSEE HAS FURNISHED CONFIRMATION LETTERS FROM TH E ABOVE THREE DONORS. ALL THESE CONFIRMATION LETTERS ARE I DENTICAL AND SIMILAR AND THE DATE AND MODE OF PAYMENT OF THE SAI D AMOUNT HAS NOT BEEN MENTIONED IN THE SAID CONFIRMATION LET TER. THE OCCASION OF THE GIFT GIVEN BY THE DONORS IS MARRIAG E OF THE ASSESSEE WHICH TOOK PLACE ON 17.1.2000 WHEREAS THE MARRIAGE GIFT WAS GIVEN DURING THE PERIOD 1.4.2000 TO 31.3.2001. NO OTHER DOCUMENTS EXCHANGED BETWEEN THE DONORS AND THE DONE AS BEEN FURNISHED EXCEPT THE CONFIRMATION LETTER. NO CORRESPONDENCE OR PROOF TO PROVE THAT THE SO CALLED DONORS ARE THE FRIENDS OF THE ASSESSE ES FATHER WAS FURNISHED BY THE ASSESSEE. IN VIEW OF THIS IDE NTITY OF PERSON MAKING THE GIFT AND SIGNING THE CONFIRMATION LETTER IS NOT ESTABLISHED. (II)CREDIT WORTHINESS OF DONOR NOT PROVED: THE ASSESSEE HAS NOT FURNISHED THE BANK ACCOUNTS OF THE DONORS TO PR OVE THAT THE SO CALLED DONORS HAVE THE CAPACITY TO GIVE SUCH A HUGE GIFT TO THE ASSESSEE. IT IS NECESSARY FOR THE ASSESSEE TO PROVE PRIMA FACIE THE IDENTITY OF HIS CREDIT WORTHINESS, THE CAPACITY OF SUCH DONORS TO GIVE MONEY AS GIFT AND GENUINENES S OF THE TRANSACTIONS. MERE PRODUCE OF CONFIRMATION LETTERS WOULD NOT ITSELF PROVE THAT THE GIFTS HAVE BEEN OBTAINED FROM THESE DONORS AND THEY HAVE CREDIT WORTHINESS. THUS ASSES SEE HAS FAILED TO PROVE THE CREDIT WORTHINESS OF THE DONOR. FOR THIS I RELY UPON THE CALCUTTA HIGH COURT DECISION IN CIT V S UNITED COMMERCIAL AND INDUSTRIAL CO. PVT. LTD. (187 IGTR 5 96). (III)SOURCE OF GIFT NOT PROVED: THE LAW IS WELL SETTLED THAT THE ONUS OF PROVING THE SOURCE OF A MONEY FOUND TO HAVE BEEN RECEIVED BY AN ASSESSEE IS ON HIM. SINCE THE ASSES SEE HAS FAILED TO PROVE THE SOURCE OF MONEY FOUND TO HAVE B EEN RECEIVED BY HIM. WHEN THE SOURCE OF A MONEY RECEIV ED BY AN ASSESSEE IS NOT PROVED, IT IS OPEN TO THE REVENUE T O HOLD THAT IT IS THE INCOME OF THE ASSESSEE AND NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT THE INCOME IS FROM ANY OTH ER SOURCES. FOR COMING TO THIS CONCLUSION I RELY UPON THE DECISIONS IN THE CASE OF ROSHAN DI HATTI VS CIT (10 7 ITR 988) AND KALE KHAN MOHD. HANIF VS CIT (50 ITR SC) ITA NO. 5037/M/06 6 (IV)GIFT IS A STRANGER: DURING THE PREVIOUS YEAR THE ASSESSEE STATED TO HAVE RECEIVED GIFT TOTALLYING TO RS. 77,7 8,535/- AS FOREIGN GIFTS FROM FOREIGN NATIONALS, WHO CLAIMS T O HAVE THE FRIENDS OF THE FATHER OF THE ASSESSEE. HOWEVER, NO DOCUMENTARY EVIDENCE IN THIS REGARD, EXCEPT THE CON FIRMATION LETTERS FROM THE SO CALLED DONORS HAVE BEEN FILED B Y THE ASSESSEE. IN VIEW OF THIS THE GENUINENESS OF THE G IFT TO THE ASSESSEE CANNOT BE ACCEPTED. IN THE LIGHT OF THE A BOVE DISCUSSION I TREAT THE THREE FOREIGN DONORS CLAIMS TO BE THE FRIENDS OF THE ASSESSEES FATHER AS STRANGER AND TR EAT THE SO CALLED GIFT OF RS. 77,78,535/- AS INCOME FROM UNDIS CLOSED SOURCES. FURTHER AS THE CIRCUMSTANCES OF THE TRANS ACTION DO NOT PROVE ITS GENUINENESS, THE ENTIRE TRANSACTION I S TREATED AS SHAM TRANSACTION FOR COMING TO THIS CONCLUSION, I RELY UPON THE FOLLOWING DECISIONS: 1. SHYAM SUNDER GUPTA VS ITO (51 TTJ 436(JAIPUR BEN CH) 2. ITO VS DR. JAGDISH J. KANSAGARA (ITAT AHMEDABAD A BENCH 60 TTJ 288) IN VIEW OF THE ABOVE I HOLD THAT THE ASSESSEE COUL D NOT PROVE THE GENUINENESS OF GIFT AND CAPACITY OF THE D ONOR, THUS THE AMOUNT OF RS. 77,78,535/- CREDITED TO THE CAPITAL ACCOUNT AS GIFT IS TREATED AS UNDISCLOSED I NCOME OF THE ASSESSEE RELYING ON THE DECISION IN THE CAS E OF DEEPAK KUMAR AGRAWAL VS ITO 110 TAXMAN 233 (JAB. TRI). THUS THE AMOUNT OF RS. 77,78,535/- IS TREATE D AS UNEXPLAINED CASH CREDIT AND THE SAME IS ADDED U/S. 68 OF THE I.T. ACT, 1961. PENALTY PROCEEDINGS U/S. 27 1(1)(C) OF THE I.T. ACT FOR CONCEALING THE INCOME AND FURNI SHING INACCURATE PARTICULARS HAS ALSO BEEN INITIATED SEPARATELY. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE CONT ENDED THAT THE ASSESSEE HAS SUBMITTED NAME AND ADDRESS OF THE DONO R, CONFIRMATION LETTER FROM THE DONOR AND ALSO THEIR NET WORTH CERT IFICATES. HE ALSO SUBMITTED THAT THE SAID AMOUNT OF GIFTS WERE RECEIV ED THROUGH BANKING CHANNELS. THUS THE LD. COUNSEL FOR THE ASSESSEE CO NTENDED THAT THE ASSESSEE HAD SUFFICIENTLY PROVED THE GENUINENESS OF THE TRANSACTION WITH DOCUMENTARY EVIDENCE. ITA NO. 5037/M/06 7 7. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE D ECISION OF ITAT DELHI BENCH G IN THE CASE OF SMT. SANDHYA VERMA VS ITO 30 SOT 29 (DEL), ITAT MUMBAI BENCH E IN THE CASE OF TWIN S TAR JUPITER C. OP. HSG. SOC. LTD VS ITO (31 SOT 474) AND THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS (P) LTD. 189 TAXMAN 322 (SC) AND PLEADED THAT THE PENALTY MAY BE DELET ED. 8. WE HEARD BOTH THE PARTIES AND PERUSED THE MATERI AL BEFORE US AND DELIBERATED UPON THE FACTUAL MATRIX OF THE CASE. AT PARA 11 OF THE ORDER OF THE ITAT IN THE QUANTUM APPEAL, THE ISSUE BEFORE US HAS BEEN BROUGHT OUT CLEARLY WHICH IS AS UNDER: NOW COMING TO THE MERITS OF THE GIFTS THE ASSESSIN G OFFICER HAS ANALYSED THE GIFTS IN A DETAILED MANNER. THERE IS NO EVIDENCE TO PROVE THAT THE SO CALLED DONORS, I.E. THE THREE FOR EIGNERS FROM GERMANY, NETHERLANDS AND KOREA ARE FRIENDS OF THE F ATHER AND NO EVIDENCE HAS BEEN FURNISHED EITHER TO ESTABLISH THE IR GENUINENESS OR THEIR RELATIONSHIP WITH THE ASSESSEE OR ASSESSEES FATHER. AS SEEN FROM THE CONFRIMATION LETTERS FILED, WHICH ARE EXTR ACTED IN THE ORDER OF THE LEARNED CIT(A), THE DONORS WERE CONFIRMING THAT THE ASSESSEE IS A GOOD FRIEND AND THEY KNOW HIM SINCE A NUMBER OF YEA RS AND THEY VISITED EACH OTHERS PLACES WHENEVER THEY COME TO TH E RESPECTIVE COUNTRY OR THEY VISIT INDIA. THE ASSESSEE ADMITTED BEFORE THE A.O. THAT THESE PERSONS ARE FRIENDS OF HIS FATHER, HENCE, TO THAT EXTENT THE CONFIRMATON LETTER IS NOT ESTABLISHIG THE FACTS COR RECTLY. FURTHER THE LETTER ALSO INDICATE THAT THE GIFT WAS GIVEN DURING THE PERIOD FROM 01.04.2002 AND 31.03.2001. IT DOES NOT INDICATE THE DATE OF GIFT AT ALL NOR THE ASSESSEE IS FORTHCOMING IN INFORMING WHEN T HE GIFTS WERE RECEIVED AND WHERE THE AMOUNTS WERE CREDITED. IT IS THROUGH THE LETTER THAT THE MODE OF GIFT IS SHOWN AS TELEGRAPHIC TRANS FER AND AMOUTS WERE SHOWN BUT THE RELEVANT EVIDENCES ARE NOT ON RE CORD NOR FILED BEFORE US ALSO IN THE PAPER BOOK FILED. THE PAPER B OOK ONLY CONTAINS THE AMOUNTS RECEIVED FROM FOREIGN PARTIES THE DETAI LS OF WHICH WERE ALREADY IN THE ORDERS AND NO EVIDENCE WITH REFERENC E TO THE PASSPORT OF THE FOREIGN PERSONS TO ESTABLISH THE GENUINENESS OF THE SIGNATURES AND GENUINESS OF THE GIFT. EVEN THE SIGNATURES OF T HE SO CALLED AUDITORS WERE TAKEN ON THE LETTER HEAD OF THE FOREI GNERS WHICH DOES NOT ESTABLISH THE CREDITWORTHINESS AT ALL. IT WAS C ERTIFIED THAT EACH PERSON HAD A NET WORTH OF SOME AMOUNT AS ON 31 ST DECEMBER 2001. THIS NET WORTH STATEMENT FROM THE RESPECTIVE AUDITO RS DOES NOT ITA NO. 5037/M/06 8 ESTABLISH THAT THE GIFTS WERE RECEIVED OUT OF THEIR OWN SOURCES OR FROM ANY OTHER SOURCE. WHEN THE DATE OF GIFT ITSELF IS N OT INDICATED EITHER BY THE ASSESSEE OR BY THE DONOR IT IS NOT UNDERSTANDAB LE HOW THE CREDITWORTHINESS CAN BE VERIFIED ON THE DATE OF GIF T OF THE SO CALLED DONORS. IN ADDITION TO THE ABOVE, IT IS ALSO NOTICE D THAT THE ASSESSEE AND HIS FATHER WERE IN THE PHARMA BUSINESS AND THE THREE FOREIGNERS WHO ARE SUPPOSED TO HAVE GIFTED THE AMOUNTS WERE AL SO IN THE PHARMA BUSINESS AS CAN BE SEEN FROM THE LETTER HEAD S IN WHICH CONFIRMATIONS WERE FURNISHED. SO, IT CANNOT BE RULE D OUT THAT THERE CAN BE A BUSINESS CONNECTION IN REMITTANCE OF FUNDS BY WAY OF TELEGRAPHIC TRANSFER. IT IS ALSO NOT UNDERSTANDABLE HOW THE GIF TS WERE RECEIVED BY TELEGRAPHIC TRANSFER FROM ALL THE THREE PARTIES FRO M DIFFERENT COUNTRIES AT THE SAME TIME UNLESS THE SO CALLED GIFTS ARE ARR ANGED AMOUNTS.THE LETTER DATED 11.11.2004 INDICATES THAT ALL THE THRE E FOREIGNERS HAVE VISITED INDIA DURING THE RELEVANT PERIOD BUT DOES N OT ESTABLISH THAT THEY HAVE GIFTED ANY AMOUNT WHEN THEY CAME TO INDIA . SUBMISSIONS MADE BEFORE INDICATE THAT THE MONIES WERE RECEIVED BY WAY OF TELEGRAPHIC TRANSFER AND NOT RECEIVED IN INDIA, HEN CE, THEIR VISIT TO INDIA DOES NOT ESTABLISH ANY GIFT IN INDIA. MODE OF REMITTANCE OF AMOUNTS ALSO INDICATE DEPARTURE FROM NORMAL PRACTIC E OF RECEIPT OF GENUINE GIFTS. BE THAT IT AS MAY, NEITHER BEFORE TH E ASSESSING OFFICER NOR BEFORE THE LEARNED CIT(A) THE ASSESSEE COULD ES TABLISH THE IDENTITY AND GENUINESS OF THE GIFT. BEFORE US ALSO NO FURTHE R EVIDENCE HAS BEEN FURNISHED TO CONSIDER THE ISSUE DIFFERENTLY. IT IS ON RECORD THAT THE ASSESSEE HAS NOT FURNISHED THE DATE OF GIFT, THE AC COUNTS IN WHICH IT WAS RECEIVED AND HAS NOT FURNISHED EVIDENCE THAT TH E SO CALLED DONORS HAD GIVEN THE GIFTS OUT OF LOVE AND AFFECTIO N AND THEIR CREDITWORTHYNESS TO THE SATISFACTION OF AUTHORITIES . FINDING OF THE LEARNED CIT(A) ON THIS ISSUE IN PARA 3.1 AND 3.2 AR E WORTH MENTIONING HERE. '3.1. THE CONFIRMATIONS AND NET WORT CERTIFICATES G IVEN BY THE OTHER TWO DONORS CONTAIN EXACTLY SIMILAR WORDING TH OUGH ALL TE THREE DONORS COME FROM DIFFERENT COUNTRIES. MR. ZEITZ BEL ONGS TO GERMANY, MR. J. FLANTUA COMES FROM NETHERLANDS AND MR. JI HO ON SOHN BELONGS TO KOREA. 3.2. IT HAS BEEN CLAIMED BY THE APPELLANT THAT ALL THE THREE DONORS WERE GOOD FRIENDS OF HIS FATHER SINCE LAST 2 0 TO 25 YEARS AND THEY HAVE BEEN ATTENDING THE FAMILY FUNCTIONS OF TH E APPELLANT PERSONALLY. T FIND OUT THE CLOSENESS OF THE APPELLA NT AND HIS FATHER WITH THE DONORS, THE COPIES OF THEIR PASSPORTS WERE CALLED FOR DURING THE HEARING OF APPEAL. ON 20-09-2004, THE LD AR WAS ASKED TO FILE COPIES OF CORRESPONDENE, IF ANY, OF THE APPELLANT W ITH THE DONORS. HE WAS ALSO ASKED TO FURNISH DETAILS OF FUNCTIONS ATTE NDED BY THE DONORS WITH DOCUMENTARY EVIDENE LIKE PHOTOGRAPHS, V IDEO FILMS ETC. HE WAS ALSO ASKED TO SUIBMIT A DETAILED NOTE ON THE NATURE OF ITA NO. 5037/M/06 9 RELATIONSHIP OF THE APPELLANT WITH THE DONORS. HOWE VER, TILL TODAY, EXCEPT THE PHOTOCOPIES OF PASSPORTS, NO DETAILS HAV E BEEN FILED ALTHOUGH THE HEARING WAS ADJOURNED TWICE FOR 21-10- 2004 AND 9- 11-2004 TO ENABLE THE LD. AR TO FILE TE DETAILS AND TO PRODUCE SHRI VIVEK N. JAJODIA BEFORE THE UNDERSIGNED. HIS INABIL ITY TO PROVE THESE DETAILS PROVE THAT THERE IS NO EVIDENCE TO SHOW THA T THERE WAS ANY CLOSENESS OF THE DONOR WITH THE APPELLANT.' 9. THE SUPREME COURT DECISION IN THE CASE OF CIT VS DURGA PRASAD RAO 82 ITR 540, CIT VS P. MOHANKALA 291 ITR 278 BE COME VERY RELEVANT WITH RESPECT TO THE FACTS OF THE PRESENT C ASE. . THE SO CALLED GIFTS CREDITED IN ASSESSEES CAPITAL ACCOUNT IS NOT ACCEPTABLE. IT IS AGAINST THE NORMAL HUMAN CONDUCT AND HIGHLY IMPROBA BLE. FURTHER MARRIAGE TOOK PLACE ON 17.1.2000 WHEREAS THE DONORS HAVE GIFTED DURING THE PERIOD 1.4.2000 TO 31.2.2001 I.E. GIFTS HAVE BEEN RECEIVED NEARLY ONE YEAR AFTER THE MARRIAGE HAS TAKEN PLACE. ONE HAS TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO DETERMINE WHE THER THE GIFTS ARE GENUINE OR NOT. 10. WE DO NOT FIND THE ASSESSEE IN A POSITION TO PR ODUCE ANY CLINCHING EVIDENCE NOR AS HE PRODUCE ANYTHING BEFOR E US TO SUPPORT THE GENUINENESS OF THE GIFT. IN THESE CIRCUMSTANCES, W E CONFIRM THE ORDER OF THE LD. CIT(A) AND DISMISS THE ASSESSEES APPEAL . 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 25 TH DAY OF JUNE, 2010 SD/- SD/- (R.S. SYAL) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 25 TH JUNE, 2010 RJ ITA NO. 5037/M/06 10 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR F BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 5037/M/06 11 DATE INITIALS 1 DRAFT DICTATED ON: 14.6.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 15. 6 .2010 ______ SR. PS/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. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______