ITO 22(1)-1, NAVI MUMBAI V. BHAVEN M MATHIA, MUMBAI

ITA 514/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6298 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 10-11-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 21-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K NAYAK
• Assessee Lawyers: DHIREN TALATI
• Keywords: Gift; Income from undisclosed sources; Tangible material
• Section: 142(1); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI S.V. MEHROTRA (AM) AND SMT. ASHA VIJAYARA GHAVAN (JM) ITA NO.514/MUM/2010 ASSESSMENT YEAR-2006-07 THE ITO-22(1)-1, 4 TH FLOWER, TOWER NO. 6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI SHRI BHAVEN M. MATHIA, 319, SWASTIK CHAMBERS, 3 RD FLOOR, S.T. ROAD, CHEMBUR, MUMBAI-400 071 PAN-AAPM 9120C (APPELLANT) VS. (RESPONDENT) APPELLANT BY: SHRI A.K. NAYAK RESPONDENT BY: SHRI DHIREN TALATI O R D E R PER ASHA VIJAYARAGHAVAN (JM) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER DATED 30.11.2009 PASSED BY THE LD. CIT(A)-XXII FOR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE IS AN INDIVIDUAL CARRYING ON BUSINE SS UNDER THE NAME AND STYLE OF M/S. INDIA TRADES AS A PROPRIETOR AND IS DULY ASSESSED TO TAX FOR THE PAST SEVERAL YEARS. RETURN OF INCOME W AS FILED BY THE ASSESSEE DECLARING TOTAL INCOME OF RS. 4,35,210/-. DURING T HE COURSE OF THE ASSESSMENT PROCEEDINGS U/S. 142(1) & 143(2) OF THE I.T. ACT. 1961, THE ASSESSEE HAS FILED VARIOUS DETAILS, CLARIFICATIONS AND DOCUMENTARY EVIDENCES IN SUPPORT OF THE RETURNED INCOME. THE A SSESSEES SUBMISSIONS ARE COMPRISED VIDE LETTERS DT. 29.4.200 8, 16.6.08, 24.6.08, 4.7.08, 11.7.08, 18.8.08, 26.8.08, 15.9.08 & 13.10. 08. DURING THE YEAR ITA NO. 1230/M/10 2 UNDER CONSIDERATION, THE ASSESSEE HAS RECEIVED AMOU NTS AGGREGATING RS. 13,69,190/- AS GIFT FROM HIS SISTER TEJAL M. MATHIA (NRI). THE ASSESSEE HAS SUBMITTED VARIOUS DOCUMENTARY EVIDENCES IN SUPP ORT OF THE RECEIPT OF THIS GIFT. 3. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) ON THE GR OUND THAT THE AO HAS ERRED IN MAKING AN ADDITION OF RS. 13,69,190/- U/S. 68 OF THE I.T. ACT 1969 BY TREATING THE FOREIGN GIFT RECEIVED BY THE A SSESSEE FROM HIS NON RESIDENT ELDER SISTER AS INCOME OF THE ASSESSEE. 4. BEFORE THE LD. CIT(A), THE AUTHORISED REPRESENTA TIVE OF THE ASSESSEE SUBMITTED AS FOLLOWS: MISS TEJAL MATHIA IS BORN AND BROUGHT UP IN MUMBAI AND IS ELDER TO THE ASSESSEE. SHE IS THE REAL SISTER OF T HE ASSESSEE AND IS SINGLE AND UNMARRIED. THE FAMILY THUS COMPRISES OF FOUR PERSONS VIZ., THE ASSESSEE, PARENTS OF THE ASSESSEE AND MIS TEJAL MATHIA THE ELDER SISTER OF THE ASSESSEE. EVEN THE ASSESSEE IS YET SINGLE. THE ASSESSEES FATHER MR. MAHENDRQ MATHIA IS A VERY WEL L ESTABLISHED BUSINESSMAN AND IS ALSO WIDELY TRAVELLED BOTH WITHI N AND OUTSIDE INDIA. THE ASSESSEES ELDER SISTER IS ALSO VERY WE LL TRAVELLED AND HAS VISITED COUNTRIES LIKE U.S., SWITZERLAND, OTHER EUROPEON COUNTRIES, SINGAPORE ETC. SHE LEFT FOR THE UNITED STATES FOR PERMANENT SETTLEMENT SOMEWHERE IN THE YEAR 2003. THE ASSESSEE HAS RECEIVED TWO GIFTS FROM HIS ELDER SISTER DURING THE YEAR UNDER CONSIDERATION. THE DETAILS O F THE SAME ARE AS FOLLOWS: SR. NO. DATE AMOUNT IN US $ AMOUNT IN INDIAN RS. 1 6.5.2005 11,000 4,73,990/- 2. 18.10.2005 20,000 8,95,200/- TOTAL 13,69,190/- ITA NO. 1230/M/10 3 THE GENUINENESS OF THE ABOVE GIFTS AND THE CREDIT W ORTHINESS OF THE DONOR IS EVIDENCED BY VARIOUS DOCUMENTARY EV IDENCE SUCH AS DECLARATION OF THE GIFT BY THE DONOR, ACCEPTANCE TH EREOF BY THE DONE, FOREIGN INWARD REMITTANCE CERTIFICATE, COPIES OF TE JAL MATHIAS BANK ACCOUNTS, COPIES OF TAX RETURNS FILED BY THE DONOR IN THE FOREIGN STATE, COPY OF PASSPORT, SOURCES OF THE GIFTS, CERTIFICATE OF CPA ETC. IN VIEW OF THE ABOVE IT IS PRAYED THAT THE RECEIPT OF THE FOREIGN GIFT BY THE APPELLANT FROM HIS REAL SISTER AGGREGAT ING TO RS. 13,69,190/- BE TREATED AS GENUINE AND THE ADDITION MADE BY THE AO BE DELETED. 5. BEFORE THE LD. CIT(A), THE AUTHORISED REPRESENTA TIVE OF THE ASSESSEE FURTHER SUBMITTED AS FOLLOWS: THE MAJOR GROUND ON WHICH THE ADDITION HAS BEEN MA DE BY THE AO IS IN RESPECT OF THE ALLEGED FAILURE TO PROV E THE CREDIT WORTHINESS OF THE DONOR. IT IS SUBMITTED WITH RESP ECT THAT VARIOUS DOCUMENTS AS LISTED OUT AT PARA NO. 5 OF OUR WRITTE N SUBMISSIONS DT. 27.11.2009 PROVIDE SUBSTANTIAL EVIDENCE OF THE CRED IT WORTHINESS OF THE DONOR. THERE IS A DECLARATION OF THE GIFT BY T HE DONOR. THERE IS ACCEPTANCE OF THE GIFT BY THE DONE. THE GIFT IS A FOREIGN GIFT AND THE SAME IS EVIDENCED BY WAY OF FOREIGN INWARD REMITTAN CE CERTIFICATE. THE FACT THAT THE DONOR IS AN NRI IS EVIDENCED BY T HE COPY OF THE PASSPORT OF THE DONE. THE TAX RETURNS FILED BY THE DONOR IN THE FOREIGN STATE I.E. USA IS ALSO AVAILABLE AND CLEARL Y ESTABLISH THE CREDIT WORTHINESS OF THE APPELLANT. FURTHER CERTIF ICATES OF CPA HAVE ALSO BEEN DULY SUBMITTED PROVING THE CREDIT WORTHIN ESS OF THE DONOR. IT IS FURTHER SUBMITTED THAT THE TRANSACTIONS ARE T HROUGH BANKS AND ARE THEREFORE BANKING TRANSACTIONS WHICH ARE AGAIN SUPPORTED BY THE CERTIFICATES ISSUED BY THE BANKERS IN THIS RESP ECT. FURTHER THE TRANSACTION OF THE GIFT IS DULY REFLECTED IN THE BA NK STATEMENTS OF THE DONOR AS WELL AS DONE. IN VIEW OF THE ABOVE WE HAVE TO SUBMIT WITH RESPECT THAT BASED ON THE ABOVEMENTIONED SUBSTANTIAL DOCUMENTS I T IS ESTABLISHED BEYOND DOUBT THAT THE GIFT IS A GENUINE GIFT AND THAT THE SAME HAS NOT BEEN PURCHASED BY THE APPELLANT BY PAY ING CASH. FURTHER THE CREDIT WORTHINESS OF THE DONOR IS ALSO SIMULTANEOUSLY ESTABLISHED BY A JOINT READING AND ANALYSIS OF THE VARIOUS DOCUMENTARY EVIDENCE AS STATED ABOVE. ITA NO. 1230/M/10 4 THE AO HAS NOT FOUND ANY DEFECTS WHATSOEVER IN ANY EVIDENCE PRODUCED BY THE ASSESSEE. THE AO HAS MADE THE ADDI TION ONLY ON SURMISES AND CONJECTURES WHICH IS EVIDENT FROM PARA 4.5 OF THE ASSESSMENT ORDER ITSELF WHEREIN THE AO HAS GIVEN RE ASONS FOR MAKING THE ADDITION. I) AT SUB PARA I) THE AO HAS MADE A WILD ALLEGATION THAT THE ASSESSEE HAS PURCHASED THE GIFT BY PAYING CASH AMOUNT. NOWHERE IN THE ENTIRE ASSESSMENT ORDER THE RE IS ANY MENTION OF ANY EVIDENCE THAT THE AO HAS IN H IS POSSESSION TO COME TO THIS CONCLUSION. THERE IS ABSOLUTELY NO MENTION OF ANYTHING ON THIS ISSUE ANYWHERE. IT IS ONLY A WILD ALLEGATION ARISING FRO M NOWHERE AND ONLY A NOTION ON THE PART OF THE AO. II) FURTHER, THE AO HAS STATED THAT THE ASSESSEE IS IN THE HABIT OF PURCHASING GIFT. THIS IS ALSO ABSOLUTELY ERRONEOUS AS WOULD THE RECORDS OF A.Y. 2004-05 PROV E. IN THIS YEAR THE ASSESSEE HAD RECEIVED A GIFT FROM HIS FRIEND AND THE ASSESSEES STATEMENT WAS RECORDED U/ S. 131 ON 20.12.2006. IT WOULD BE OBSERVED THAT IN TH E ENTIRE STATEMENT THERE IS NO MENTION OF PURCHASING OF THE GIFT NOR EVEN ANY ADMITTANCE ON THE PART OF THE ASSESSEE OF THE GIFT BEING NOT GENUINE OR BOGUS. THE ASSESSEE HAS NOT MADE ANY DECLARATIONS OF WHATSOEVE R NATURE IN THIS STATEMENT THAT WAS RECORDED ON OATH. IT WAS ONLY VIDE THE ASSESSEES SUO MOTTO LETTER DT. 28.12.2006 THAT THE AMOUNT WAS ADDED AS INCOME IN THE SAID A.Y. 2004-05. IN THE VERY SAME LETTER THE ASSESSEE HAS CLEARLY BROUGHT OUT THAT HE HAS SUBMIT TED ALL THE DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE GI FT HE RECEIVED FROM HIS FRIEND AND THAT THE GIFT IS 100% GENUINE AND FULLY VERIFIABLE. IT IS ONLY WITH A VI EW TO AVOID LITIGATION AND TO CO-OPERATE WITH THE DEPARTM ENT THAT THE AMOUNT IS OFFERED FOR TAXATION. THIS LETT ER HAS BEEN REPRODUCED BY THE AO IN HIS PRESENT ASSESSMENT ORDER OF A.Y. 2006-07 AND IS APPEARING AT PAGE NO. 5 AT PARA X. 6. THE AR RELIED ON THE FOLLOWING JUDGEMENTS: I) 315 ITR 433 (RAJ) (2009) CIT VS PADAM SINGHY CH OUHAN II) (1990) 184 ITR 121 (DEL) CIT VS SUNITA VACHANI ITA NO. 1230/M/10 5 III) (2009) 315 ITR 435 (RAJ) CIT VS RAM DEV KUMAR CHITLANGIA IV) (2004) 269 ITR 429 (DEL) CIT VS R.S. SIBAL 7. THE LD. CIT(A) HELD AS FOLLOWS: I HAVE CAREFULLY CONSIDERED THE ORDER OF THE AO AN D THE SUBMISSIONS MADE BY THE APPELLANT. IN THIS CASE, T HE APPELLANT HAS RECEIVED A TOTAL GIFT OF RS. 13,69,910/- I.E. $ 310 00 FROM HIS SISTER TEJAL M. MATHIA RESIDING AND WORKING IN THE USA ON TWO SEPARATE OCCASIONS. THE APPELLANT HAS SUBMITTED A COPY OF M S. TEJAL M. MATHIAS PASSPORT TO ESTABLISH HER IDENTITY. HE HA S ALSO SUBMITTED A STATEMENT FROM THE TAX ACCOUNTANT FIRM BUSINESS MAN AGEMENT SOLUTIONS INC. ASHBURN VA 20147 VIDE WHICH IT HAS B EEN STATED THAT MS. TEJAL MATHIA HAS FOR THE TAX YEAR 2005 EARNED A GROSS INCOME UPTO DOLLARS 77709 AND FROM JESSIE TAX SERVICES VID E LETTER DT. 10.10.2008 IT HAS BEEN INFORMED THAT MS. TEJAL MATH IA HAS FOR CALENDAR YEAR 2006 EARNED AN INCOME OF $ 96910. TH IS HAS BEEN DONE TO ESTABLISH CREDITWORTHINESS OF THE DONOR. T HE AO HAS NOT QUESTIONED OR DOUBTED THIS AT ALL. THE ICICI BANK HAS CERTIFIED THAT THE APPELLANT HOLDING SAVING ACCOUNT NO. 0026010047 54 HAS RECEIVED US $ 20000 I.E RS. 8,95,200/- AS GIFT IN H IS ACCOUNT ON 28.10.2005 REMITTED BY MS. TEJAJ MATHIA AND RS. 473 990/- I.E. $ 11,000 ON 6.5.2005. THIS STATEMENT OF THE BANK BEF ORE THE AO HAS NOT BEEN QUESTION. A CERTIFICATE HAS BEEN SUBMITTE D VIDE WHICH MS. TEJAL MATHIA HAS CONFIRMED THE GIFTS SENT ON 6.5.20 05 & 18.10.20-05 TO HER BROTHER THE APPELLANT. THE REASON STATED IS OUT OF NATURAL LOVE AND AFFECTION. BANK DETAILS AND PHOTO COPY O F THE BANK ACCOUNT OF MS. TEJAL MATHIA HAS BEEN SUBMITTED TO P ROVE WITHDRAWAL MADE AND REMITTED AS GIFTS MENTIONED ABOVE TO ESTAB LISH THE GENUINENESS OF THE GIFT. FROM THE FACTS MENTIONED ABOVE, IT IS CLEAR THAT TH E APPELLANT HAS BEEN ABLE TO ESTABLISH THE IDENTITY OF THE DONO R, CAPACITY TO MAKE GIFT AND THE FACT THAT THE AMOUNT WAS A GIFT M ADE. CORROBORATIVE EVIDENCE BY WAY OF BANK STATEMENTS ET C. HAVE BEEN PRODUCED TO SHOW GIFT MADE AND RECEIVED. THE DONOR IS NOT A STRANGER BUT A CLOSE RELATIVE I.E. THE APPELLANTS S ISTER WHO HAD THE FINANCIAL CAPACITY TO MAKE THE GIFT. SEEING TO ALL THE ABOVE FACTS, I FIND THAT THE CONTENTION OF THE APPELLANT IN THIS C ASE IS ACCEPTABLE. THE AO IN THIS CASE HAS NOT CONSIDERED THE PREVIOUS RECORDS OF THE APPELLANT WHEREIN A GIFT RECEIVED BY HIM FROM A FRI END HAD BEEN DOUBTED. IN THE PRESENT CIRCUMSTANCES THE FACT BEI NG DIFFERENT THE PREVIOUS RECORDS ARE NOT ACTUALLY APPLICABLE. THE AO SHOULD HAVE ITA NO. 1230/M/10 6 CONSIDERED THE TOTALITY OF CIRCUMSTANCES. I FIND T HE AO HAS NOT QUESTIONED THE AMOUNT OR FOUND ANY DEFECTS IN THE E VIDENCE PRODUCED. HE HAS PRESUMED THAT THE GIFT WAS BOGUS AS THE APPELLANT IS IN FINANCIAL BUSINESS DEALING WITH MON IES. THE MONEY LAUNDERING HINTED AT BY THE AO HAS NOT BEEN PROVIDE OR ESTABLISHED. I FIND THE APPELLANT HAS BEEN ABLE TO DISCHARGE THE BURDEN PLACED ON HIM SUCCESSFULLY TO PROVE THE GIFT RECEIVED FROM HI S SISTER AS GENUINE. THE ADDITION MADE IS THUS DELETED AND THE GROUND OF APPEAL ALLOWED. 8. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), REVENU E IS IN APPEAL BEFORE US AND RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE ADDITION MADE BY THE AO OF RS. 13,69,910/- ON ACCOUNT OF GIFT RECEIVED BY THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES WITHOUT APPRECIATIN G THE FACT THAT THE ASSESSEE FAILED TO PROVE THE GENUINENESS O F THE TRANSACTION INSPITE OF SEVERAL OPPORTUNITIES GIVEN AND THAT ALL THE EVIDENCE SUBMITTED BEFORE THE CIT(A) TO PROVE T HE GIFT WERE NOT SUBMITTED BEFORE THE AO. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AN D IN LAW, THE LD. CIT(A) ERRED IN ACCEPTING FRESH EVIDEN CE IN THE FORM OF COPY OF BANK ACCOUNT, WHERE THERE WAS NO BO NAFIDE REASON FOR THE ASSESSEE FOR NOT PRODUCING THE SAME AT THE TIME OF ASSESSMENT PROCEEDINGS. 3. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AN D IN LAW, IN THE CASE OF GIFT LIKE THIS, THE ELEMENT OF HUMAN PROBABILITY HAS TO BE LOOKED INTO WHICH THE LD. CI T(A) FAILED TO DO SO. 9. THE LD. COUNSEL FOR THE ASSESSEE SHRI A.K. NAYAK RELIED ON THE FOLLOWING JUDGEMENTS BEFORE US: I) 315 ITR 433 (RAJ) (2009) CIT VS PADAM SINGHY C HOUHAN IN THIS CASE IT IS ESTABLISHED THAT IF A FOREIGN GI FT IS RECEIVED EVEN FROM A NON RELATIVE, IN THE ABSENCE OF ANYTHIN G TO SHOW THAT THE ACT OF THE ASSESSEE IN CLAIMING GIFT WAS A N ACT BY WAY OF MONEY LAUNDERING, SIMPLY BECAUSE HE HAPPENED TO ITA NO. 1230/M/10 7 RECEIVE GIFT, IT COULD NOT BE SAID THAT THEY HAD TO BE ADDED IN HIS INCOME. II) (1990) 184 ITR 121 (DEL) CIT VS SUNITA VACHANI IN THIS CASE IT HAS BEEN HELD THAT EVEN IF THE AO H AS NOT GONE INTO THE SOURCES OF GIFTS OF LARGE SUMS OF MONEY RE CEIVED BY THE ASSESSEE FROM ABROAD THE AOS ACTION CANNOT BE SAID TO BE ERRONEOUS AS THE BALANCE SHEETS OF THE DONORS WHICH ARE ON RECORD ESTABLISH THE FACT THAT NO ERROR WAS COMM ITTED BY THE AO. III) (2009) 315 ITR 435 (RAJ) CIT VS RAM DEV KUMAR CHITLANGIA IN THIS CASE IT IS ESTABLISHED THAT WHEN THE IDENTI TY OF DONOR IS NOT DOUBTED AND THE TRANSACTIONS ARE THROUGH BAN KS THE GIFTS ARE TO BE TREATED AS GENUINE SPECIFICALLY WHE N THERE WAS NOT TANGIBLE MATERIAL COLLECTED BY THE AO TO ESTABL ISH THAT THE PURPORTED TRANSACTION OF GIFT WERE OTHERWISE TR ANSACTION OF MONEY LAUNDERING OR THE LIKE. IV) (2004) 269 ITR 429 (DEL) CIT VS R.S. SIBAL IN THIS CASE ALSO IT IS HELD THAT GENUINENESS OF GI FTS FROM NRIS EVEN IN RESPECT OF NON RELATIVES SHOULD BE RE GARDED AS GENUINE ON THE BASIS OF VARIOUS DOCUMENTARY EVIDENC E INCLUDING BANK ACCOUNTS AND BANK CERTIFICATES. 10. THE LD. COUNSEL FOR THE ASSESSEE TOOK US THROUG H THE PAPER BOOK AT PAGES 20,22 & 23 WHERE THE BANK STATEMENTS HAVE RECORDED CREDIT AND DEBIT AND ESPECIALLY THE DEBIT OF 11,000 $ MADE ON MAY 5TH. HE ALSO POINTED OUT THE CERTIFICATE FROM THE JESSIE TAX SER VICES WHO HAD PREPARED THE INCOME TAX RETURN FOR TEJAL MATHIA THE DONOR (P AGE-7) TO ESTABLISH THE CREDIT WORTHINESS OF THE DONOR. 11. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON T HE ORDER OF THE SUPREME COURT IN THE CASE OF CIT VS P. MOHANAKALA. THE SUPREME COURT IN THE CASE OF CIT VS. P. MOHANAKALA HELD AS UNDER: ITA NO. 1230/M/10 8 THE ASSESSEES RECEIVED FOREIGN GIFTS FROM ONE COMM ON DONOR. THE PAYMENTS WERE MADE TO THEM BY INSTRUMEN TS ISSUED BY FOREIGN BANKS AND CREDITED TO THE RESPECT IVE ACCOUNT OF THE ASSESS3EES BY NEGOTIATION THROUGH A BANK IN INDIA. MOST OF THE CHEQUES SENT FROM ABROAD WERE DRAWN ON THE CITIBANK, N.A. SINGAPORE. THE EVIDENCE INDICATED T HAT THE DONOR WAS TO RECEIVE SUITABLE COMPENSATION FROM THE ASSESSEES. ON THIS MATERIAL THE ASSESSING OFFICER HELD THAT THE GIFTS THOUGH APPARENT WERE NOT REAL AND ACCORDI NGLY TREATED ALL THOSE AMOUNTS WHICH WERE CREDITED IN TH E ACCOUNT BOOKS OF THE ASSESSEES AS THEIR INCOME APPLYING SEC TION 68 OF THE INCOME TAX ACT, 1961. THE ASSESSEES DID NOT CO NTEND THAT EVEN IF THEIR EXPLANATION WAS NOT SATISFACTORY THE AMOUNTS WERE NOT OF THE NATURE OF INCOME. 12. WE HEARD BOTH THE PARTIES. IN THE CASE OF MR. JAYANTILAL PATEL VS. ITO 25(2)(1) ITA NO.2494/MUM/04 A.Y.2001-02 ORDER D ATED 11.7.06 WHERE DONOR WAS NOT PRODUCED BEFORE THE AO, IT HAS BEEN HELD AS UNDER:- WE FIND THAT THE IDENTITY OF THE DONOR IS NOT IN D ISPUTE. THE DONOR IS BROTHER-IN-LAW OF THE ASSESSEE AND IS AN AGRICULTUR IST. THE DONOR HAS FILED AN AFFIDAVIT CONFIRMING THE GIFT TO THE A SSESSEE BEFORE THE AO. COPY OF BANK PASS BOOK OF THE DONOR WAS ALSO F ILED BEFORE THE AO. WE FIND THAT THE DONOR WAS RESIDING AT POST DA RSHADI TALUKA MANDVIL DISTRICT, KUTCH BHUJ, WHICH IS A REMOTE PLA CE AND HIS NON PRODUCTION BEFORE THE AO IS NOT DECISIVE OF THE ISS UE. IN THESE FACTS WE HOLD THAT THE ASSESSEE HAS DISCHARGED HIS ONUS O F PROVING THE IDENTITY OF THE DONOR AND THE GENUINENESS OF THE GI FT TRANSACTION TO THE ASSESSEE. THE REVENUE COULD NOT PRODUCE ANY MA TERIAL ON RECORD TO SUGGEST THAT THE TRANSACTION OF GIFT TO THE ASSE SSEE IS FICTIOUS OR NOT GENUINE. IN THE FACTS OF THE CASE WE HOLD THAT NO CASE OF ADDITION U/S.68 IS MADE OUT BY THE DEPARTMENT AND THE ADDITI ON MADE IS DELETED AND THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 13. THE SUPREME COURT IN THE CASE OF M.J. CHERIAN V S CIT 117 ITR 261 HELD THAT THE PRESENTS OF BLACK MONEY CANNOT BE PRESUMED. HENCE WE ARE OF THE OPINION THAT WHERE GIFT HAS BEEN CONF IRMED AND THROUGH BANKING CHANNEL, THE ADDITION IS NOT SUSTAINABLE. F URTHER THE DONOR IS THE SISTER OF THE ASSESSEE AND HAVING REGULAR SOUR CE OF INCOME NOT ONLY ITA NO. 1230/M/10 9 IDENTITY AND GENUINENESS OF THE GIFT ARE ESTABLISHE D BUT ALSO CREDITWORTHINESS OF DONOR. HENCE ADDITION ON ACCOUN T OF GIFT IS DELETED. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 24 TH DAY OF NOVEMBER, 2010 SD/- SD/- (S.V. MEHROTRA) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 24 TH NOVEMBER, 2010 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR G BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI ITA NO. 1230/M/10 10 DATE INITIALS 1 DRAFT DICTATED ON: 22.11.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 22.11.2010 ______ 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: _________ ______