Ishwar Chand Bansal, Chandigarh V. ITO, Chandigarh

ITA 548/CHANDI/2009

• Counselvise Citation: 54821514 RSA 2009
• Duration Of Justice: 2 year(s) 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-01-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 25-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI SHREE SHARMA
• Assessee Lawyers: HARISH NAYYAR
• Keywords: Gift; Income from undisclosed sources; Salary income; Principle of natural justice; Question of law; Difference of opinion; Onus to prove; Reason to believe
• Section: 147; 131; 68; 69; 148; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 548/CHD/2009 ASSESSMENT YEAR: 2000-01 SHRI ISHWAR CHAND BANSAL, V INCOME TAX OFFICER, H.NO. 1503, SECTOR 11-D, WARD 1(2), CHANDIGARH. CHANDIGARH. PAN: AATPB-6988G & ITA NO. 549/CHD/2009 ASSESSMENT YEAR: 2000-01 SHRI SANJAY BANSAL, V INCOME TAX OFFICER, H.NO. 1503, SECTOR 11-D, WARD 1(2), CHANDIGARH. CHANDIGARH. PAN: ACTPB-2409F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARISH NAYYAR RESPONDENT BY : SMT.JAISHREE SHARMA DATE OF HEARING : 12.01.2012 DATE OF PRONOUNCEMENT : 30.01.2012 ORDER PER MEHAR SINGH, AM THE PRESENT TWO APPEALS BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST THE CONSOLIDATED ORDER DATED 25.03 .2009 PASSED BY THE LD. CIT(A), CHANDIGARH U/S 250(6) OF THE INCOME-TAX ACT,1961 (SHORTLY REFERRED TO HEREINAFTE R AS THE ACT'). 2. AS THE FACTS OF THE CASE AND GROUNDS OF APPEAL A RE IDENTICAL IN BOTH THESE APPEALS, THESE APPEALS ARE DISPOSED OF BY WAY OF A CONSOLIDATED ORDER, FOR THE SAKE OF 2 CONVENIENCE. THE GROUNDS OF APPEAL, TAKEN BY THE A SSESSEE IN ITA NO. 548/CHD/2009 (ISHWAR CHAND BANSAL) ARE REPRODUCED HEREUNDER, AS ILLUSTRATIVE CASE : 1. THAT THE ORDERS PASSED BY THE CIT(A) ARE ILLEGA L, ARBITRARY, HAS BEEN PASSED IN HASTE AND HAS IGNORED BASIC ASPECTS AND FACTS OF THE CASE, THUS CAUSING UNDUE HARDSHIP TO THE ASSESSEE. 2. THAT THE CIT(A) HAS ERRED BOTH ON FACTS AND LAW IN CONFIRMING RE-OPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT ON THE BASIS OF GENERAL STATEMENTS OF PERSONS OTHER THAN THE DONOR OF THE GIFT, MR.SURESH KUMAR BAJAJ. THE STATEMENT OF THE STRANGERS HAS BEEN ERRONEOUSLY TAKEN AS BASIS FOR RE-OPENING OF THE ASSESSMENT. THE REASONS TO BELIEVE THAT SOME INCOME ESCAPED ASSESSMENT ARE NOT CORRECT AND THUS RE-OPENING OF ASSESSMENT IS BAD IN LAW AND DESERVES TO BE QUASHED. IT IS PRAYED THAT THE RE-OPENING OF THE ASSESSMENT WHICH IS NOT AS PER PROVISIONS OF LAW MAY BE ORDERED TO BE QUASHED. IT IS PRAYED THAT THE ASSESSMENT FRAMED IN PURSUANCE TO NOTICE UNDER SECTION 147 OF THE ACT MAY BE ORDERED TO BE QUASHED. 3. THAT THE CIT(A) HAS ERRED BOTH ON FACTS AND LAW IN CONFIRMING ADDITION OF RS.1200000.00 ON ACCOUNT OF GIFT GIVEN BY MR.SURESH KUMAR BAJAJ. THE ACTION OF THE CIT(A) IS NOT BASED UPON CORRECT FACTS AND CIRCUMSTANCES OF THE CASE. THE ADDITION HAS BEEN MADE ON SURMISES AND HAS BEEN MADE WITHOUT CONSIDERING THE WRITTEN SUBMISSIONS FILED DURING COURSE OF HEARING. THE ADDITION OF RS.1200000.00 IS UNJUSTIFIED, ILLEGAL AND DESERVES TO BE QUASHED. 3 IT IS PRAYED THAT THE ADDITION OF RS.1200000.00 MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS MAY BE ORDERED TO BE DELETED. 4. THAT THE APPELLANT CARVES LEAVE TO ADD, ALTER, MODIFY, WITHDRAW, CONCEDE ANY OR ALL THE ABOVE GROUNDS OF APPEAL DURING COURSE OF HEARING. 3. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CASE, RIVAL SUBMISSIONS AND THE RELEVANT RECORD MADE AVAILABLE BY THE CONTENDING PARTIES, INCLUDING THE WRITTEN SUBMISSIO N FILED BY THE ASSESSEE. 4. LD. 'AR' CHALLENGED THE UPHOLDING OF INVOCATION OF PROVISIONS OF SECTION 147 OF THE ACT BY THE AO AND CONFIRMATION OF THE ADDITION OF RS.12,00,000/- AND RS.15,00,000/- RECEIVED AS ALLEGED GIFTS BY SHRI IS HWAR CHAND BANSAL AND SHRI SANJAY BANSAL RESPECTIVELY. THE LD. 'AR' CONTENDED THAT THE ASSESSMENT WAS REOPENED ON THE BASIS OF STATEMENT RECORDED BY THE INVESTIGATION WI NG, WHICH CAN NOT FORM THE BASIS, FOR INVOCATION OF PRO VISIONS OF SECTION 147 OF THE ACT. THE AO FRAMED THE ASSESS MENT U/S 148 READ WITH 143(3) OF THE ACT ON 24.03.2006, FOR THE ASSESSMENT YEAR 2000-01 IN THE CASE OF SHRI ISHWAR CHAND. SIMILARLY, ASSESSMENT IN THE CASE OF SHRI SANJAY BA NSAL FOR THE ASSESSMENT YEAR 2000-01 WAS FRAMED ON 24.03.200 6, U/S 148 READ WITH SECTION 143(3) OF THE ACT, BY THE AO. INCIDENTALLY, IT IS MENTIONED THAT BOTH THE ASSESSM ENTS WERE FRAMED BY SAME AO. AND THE CIT(A) DECIDED THE APPEAL, IN BOTH THE CASES, VIDE ORDER DATED 25.03.2 009. 4 5. A PERUSAL OF THE IMPUGNED ASSESSMENT ORDER(S) RE VEALS THAT THE AO INVOKED THE PROVISIONS OF SECTION 147 O F THE ACT, ON THE GROUND OF INFORMATION OF CERTAIN BOGUS GIFTS RECEIVED BY THE ASSESSEES. THE RELEVANT PARA OF THE ASSESSMENT ORDER OF SANJAY BANSAL IS REPRODUCED HEREUNDER : ORIGINAL RETURN IN THIS CASE WAS FILED ON 28.06.20 00 WITH RANGE-I CHANDIGARH DECLARING INCOME OF RS.2,45,089/-. NOTICE UNDER SECTION 148 WAS ISSUED ON 29.03.2005 AFTER RECORDING REASONS ON THE GROUND TH AT THE ASSESSEE HAD RECEIVED FAKE GIFTS OF RS.15 LACS (RS. 5 LACS ON 31.7.1999 AND RS.10 LACS ON 11.8.1999 THROUGH NRE ACCOUNT NO. 1198 WITH VIJAYA BANK OF SH RI RAKESH BAJAJ NRE ACCOUNT NO. 10238 WITH STATE BANK OF INDIA MAIN BRANCH, CHANDIGARH IN THE NAME OF SHR I RAKESH BAJAJ. IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT RETURN WAS FILED ON 29.04.200 5 DECLARING THE SAME INCOME AS WAS DECLARED IN ORIGIN AL RETURN FILED ON 28.6.2000 I.E. RS.2,45,089/-. 6. SIMILAR FACTS HAVE BEEN RECORDED BY THE AO IN TH E CASE OF SHRI ISHWAR CHAND BANSAL. THE LD. CIT(A) RECORD ED CATEGORICAL FINDING THAT THE AO HAD SUFFICIENT REAS ONS, TO BELIEVE WITHIN THE MEANING OF SECTION 147 OF THE AC T. HE, FURTHER, NARRATED THAT A DETAILED REPORT FROM THE INVESTIGATION WING WAS RECEIVED BY THE AO, WHICH HA S BEEN PLACED AS ANNEXURE-II BY THE CIT(A). IT WAS RECORD ED BY THE LD. CIT(A), THAT THE NAME OF SHRI SANJAY BANSAL APP EARS AT S.NO. 13&14 AND NAME OF SHRI ISHWAR CHAND BANSAL APPEARS AT S.NO. 6 OF THE REPORT. THE OBSERVATIONS OF CIT(A), ARE VALID THAT AT THE STAGE OF ISSUANCE OF NOTICE U/S 148 OF THE ACT BY THE AO, THE EXISTENCE OF PRIMA-FA CIE BELIEF 5 THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMEN T IS THE ONLY STATUTORY REQUIREMENT. HAVING REGARD TO T HE SAID REPORT CONTAINING SPECIFIC INFORMATION, IN THE MATT ER, THE FINDINGS OF THE CIT(A), THAT THE AO HAD SUFFICIENT MATERIAL TO BELIEVE FOR THE PURPOSE OF REASON TO BELIEVE IS PERFECTLY, WITHIN THE STATUTORY PROVISIONS OF SECTION 147 OF T HE ACT. THE LD. CIT(A), VALIDLY DISCUSSED AND APPRECIATED T HE CERTAIN VERDICTS OF THE HON'BLE SUPREME COURT IN TH E CASE OF RAJESH JHAVERI STOCK BROKERS PVT.LTD., 291 ITR 5 00 (S.C), CENTRAL PROVINCES MANGANESE ORE CO.LTD. V IT O (1991) 191 ITR 662; ITO V SELECTED DALUR BAND COAL CO. PVT.LTD. (1996) 217 ITR 597 (S.C) AND RAYMOND WOOLL EN MILLS V ITO (1999) 236 ITR 34 (S.C), TO SUPPORT HIS CONTENTIONS AND FINDINGS, IN THE MATTER. 7. HAVING REGARD TO THE CORE RATIO LAID DOWN BY HON 'BLE SUPREME COURT, IN THESE CASES, IT IS EVIDENT THAT T HE EXPRESSION REASON TO BELIEVE CANNOT BE READ TO ME AN THAT THE AO SHOULD HAVE FINALLY ASCERTAINED THE FACTUM O F CONCLUSIVE ESCAPEMENT OF INCOME CHARGEABLE TO TAX B Y LEGAL EVIDENCES OR CONCLUSION, WHILE INVOKING THE PROVIS IONS OF SECTION 147 READ WITH SECTION 148 OF THE ACT. SIMIL ARLY, IT HAS BEEN HELD BY THE HON'BLE SUPREME COURT THAT AT THAT STAGE, THE FINAL OUTCOME OF THE PROCEEDING IS NOT R ELEVANT. IN OTHER WORDS, AT THE INITIATION STAGE, WHAT IS RE QUIRED, IS REASON TO BELIEVE, BUT NOT THE ESTABLISHED FACTUM OF ESCAPEMENT OF INCOME CHARGEABLE TO TAX. LD. CIT(A) , ALSO ANALYZED AND RELIED UPON THE DECISION OF THE JURISD ICTIONAL HIGH COURT, IN THE CASE OF PUNJAB TRACTORS LTD. 254 ITR 6 242 (P&H) AND GROVER NURSING HOME 248 ITR 493 (P&H) AND FINALLY UPHELD THE RE-OPENING OF THE ASSESSMENT S, IN BOTH THE CASES. 8. A BARE PERUSAL OF THE FACT SITUATION OF THE CASE REVEALS THAT THERE WAS DEFINITE INFORMATION OF RECEIPT OF A LLEGED GIFTS BY THESE ASSESSEES, WHICH HAD DIRECT AND LIVE NEXUS, WITH THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX OF SUCH ASSESSEES, WITHIN THE EXPRESS PROVISIONS OF SECTION 147 READ WITH SECTION 148 OF THE ACT. FURTHER, THE DECI SIONS OF THE JURISDICTIONAL HIGH COURT AND THE HON'BLE SUPRE ME COURT AS DISCUSSED AND RELIED UPON BY THE CIT(A) SQ UARELY SUPPORT THE CASE OF THE REVENUE, FOR INVOCATION OF THE PROVISIONS OF SECTION 147 R.W.S. SECTION 148 OF THE ACT. NEEDLESS TO SAY THAT THE PROVISIONS OF SECTION 147 WERE INVOKED IN SUCH CASES, ON THE BASIS OF CREDIBLE, RE LIABLE AND RELEVANT INFORMATION, WHICH LED TO FORM A BELIE F, BY THE AO, FOR THE ESCAPEMENT OF INCOME CHARGEABLE TO TAX, WITHIN THE MEANING OF SECTION 147 READ WITH SECTION 148 OF THE ACT. THE ASSESSEE HAS FAILED TO BRING ON RECORD AN Y MATERIAL WHICH REBUTS THE CONCURRENT AND SPECIFIC F INDINGS OF THE AO AND THAT OF THE LD. CIT(A), IN THE MATTER . THEREFORE, HAVING REGARD TO THE FACT SITUATION OF T HE PRESENT CASE, IT IS EVIDENT THAT THE AO APPLIED HIS INDEPEN DENT MIND, TO THE INFORMATION RECEIVED FROM THE INVESTIG ATION WING. CONSEQUENTLY, FORMATION OF BELIEF AND INVOCAT ION OF THE PROVISIONS OF SECTION 147 OF THE ACT BY THE AO IS FOUNDED ON THE INDEPENDENT APPLICATION OF MIND BY H IM, TO THE INFORMATION SUPPLIED BY THE INVESTIGATION WING. IT IS 7 WELL SETTLED PROPOSITION OF LAW THAT INFORMATION MA Y COME FROM ANY SOURCE, BUT THE APPLICATION OF MIND, TO SU CH INFORMATION SHOULD BE OF THE AO ALONE. THE INVESTI GATION WING IS ONE OF THE IMPORTANT ORGAN OF THE INCOME TA X DEPARTMENT AND THE SAID WING MERELY SUPPLIES INFORM ATION, TO THE AO, FOR THE PURPOSE OF TAKING APPROPRIATE AC TION, UNDER THE RELEVANT PROVISIONS OF THE ACT. CONSEQUEN TLY, THE AO INVOKED THE PROVISIONS OF SECTION 147, IN BOTH T HE CASES. THUS, HAVING REGARD TO THE FACTS OF THE CASE , RELEVANT STATUTORY PROVISIONS AND THE DECISIONS OF THE JURIS DICTIONAL HIGH COURT AND OF THE HON'BLE SUPREME COURT, WE ARE OF THE CONSIDERED OPINION THAT THE FINDINGS OF THE LD. CIT (A), ARE PERFECTLY VALID IN UPHOLDING THE INVOCATION OF THE PROVISIONS OF SECTION 147 READ WITH SECTION 148 OF THE ACT BY THE AO. ACCORDINGLY, WE UPHOLD THE FINDINGS OF THE LD. CI T(A) IN THE MATTER OF INVOCATION OF THE PROVISIONS OF SECTI ON 147 R.W.S. 148 OF THE ACT AND HENCE, THIS GROUND OF APP EAL OF THE ASSESSEE IS DISMISSED, IN BOTH THE CASES. 9. NOW, WE TURN TO ANALYZE AND APPRECIATE THE FACTU AL MATRIX OF THE CASE, FOR THE PURPOSE OF ADJUDICATION OF THE APPEALS, ON MERIT, IN RESPECT OF THE SAID GIFTS REC EIVED BY THESE APPELLANTS. THE BASIS OF STATEMENTS ON OATH OF ONE OF THE FAMILY MEMBERS SHRI ABINASHI LAL BAJAJ AND S HRI RAKESH BAJAJ, COPIES OF THE SAME WERE GIVEN TO THE ASSESSEE, ARE INDICATIVE OF THE TRUE FACTS OF THE P RESENT CASE. SHRI ABINASHI LAL BAJAJ STATED THAT HE RETIR ED, ON 01.07.1996, FROM PUBLIC HEALTH DEPARTMENT, UT CHANDIGARH AND NOW DRAWS RS.4000/-, PER MONTH AS 8 PENSION. HE SPECIFICALLY STATED THAT SOME ENTRIES IN THE NRE ACCOUNT, WITH VIJAYA BANK, SECTOR 34, CHANDIGAR H, PERTAIN TO THE ISSUANCE OF PAY ORDERS, IN THE NAME OF CERTAIN PERSONS, THROUGH THE MIDDLEMAN, SHRI RAKESH KUMAR. THESE ARE ON ACCOUNT OF PAY ORDERS OBTAINED BY HIM IN DIFFERENT NAMES AND SUCH PAY ORDERS WERE PAI D, TO SOME OTHER PERSONS THROUGH SHRI RAMESH KUMAR. SUCH PAY ORDERS WERE PAID IN LIEU OF CASH RECEIVED FROM THE ALLEGED DONEES AND HE HAS NOT GIVEN ANY LOAN OR GIFT TO ANY PERSON IN INDIA. SIMILAR STATEMENT OF SHRI RAKESH BAJAJ, S/O SHRI ABINASHI LAL BAJAJ WAS RECOR DED ON THE SAME ISSUE, WHEREBY HE DENIED HAVING ANY RELATIONS WITH THE DONEES AND, FURTHER, STATED THAT THE CASH WAS RECEIVED IN LIEU OF PAY ORDERS GIVEN TO TH E DONEES, THROUGH THE SAME SHRI RAMESH KUMAR, THE MIDDLEMAN. THE AO, TREATED THESE GIFTS, AS NON-GENUINE AND ADDITION WAS MADE TO THE RESPECTIVE INCOME OF T HESE ASSESSEES U/S 69 OF THE ACT, AS THE ASSESSEE FAILED TO EXPLAIN THE NATURE AND SOURCE OF SUCH GIFTS RECEIVE D FROM BAJAJ FAMILY. THE AO, WHILE RECORDING SUCH FINDINGS PLACED RELIANCE ON THE FOLLOWING DECISIONS : I) ROSHAN DI HATTI V CIT 212 ITR 390 (RAJ) II) KALE KHAN MOHAMMAD HANIF 50 ITR 1 (S.C) III) CIT V BANARSI LAL DHAWAN 109 ITR 360 IV) SUMATI DAYAL V CIT 214 ITR 801 (S.C) V) LAL CHAND KALRA V CIT 22 CTR 135 (P&H) 10. THE LD. CIT(A), FOLLOWING THE DIRECTIONS FROM T HE ITAT, AFFORDED EFFECTIVE, PROPER AND REASONABLE OPPORTUNI TIES TO 9 THE ASSESSEES, AS IS EVIDENT FROM THE FOLLOWING DET AILS, REPRODUCED IN PARA 16 OF THE ORDER PASSED BY THE CI T(A): S.NO. DATE REMARKS AS PER NOTING SHEET 1. 20.10.08 CASE FIXED FOR HEARING ON 10.11.0 8 2. 10.11.08 ON REQUEST OF THE ASSESSEE, CASE WAS ADJOURNED TO 25.11.08. 3. 25.11.08 ON REQUEST OF THE ASSESSEE, CA SE WAS ADJOURNED TO 8.12.08 4. 8.12.08 ON REQUEST OF THE ASSESSEE, CASE WA S ADJOURNED TO 17.12.08 5. 17.12.08 NONE ATTENDED 6. 7.1.09 CASE FIXED FOR HEARING ON 20. 1.09 7. 20.1.09 ON REQUEST OF THE ASSESSEE, CASE W AS ADJOURNED TO 10.2.2009 8. 10.2.09 ON REQUEST OF THE ASSESSEE, CASE WAS ADJOURNED TO 9.3.09. 9. 9.3.09 NONE ATTENDED 10. 16.03.09 ON REQUEST OF THE ASSESSEE, CASE WAS ADJOURNED TO 25.3.09 11. 25.3.09 THE COUNSEL REQUESTED FOR ADJOURNMENT BUT THE ADJOURNMENT IS DECLINED. 11. A PERUSAL OF THE ABOVE DETAILS OF OPPORTUNITIES , AFFORDED BY THE LD. CIT(A), ALONGWITH NATURE OF COM PLIANCE MADE BY THE ASSESSEE, CLEARLY REVEALS THAT NO ENDLE SS OPPORTUNITIES CAN BE AFFORDED TO A RECALCITRANT ASS ESSEE. THE ASSESSEE FAILED, TO AVAIL SUCH OPPORTUNITIES, F OR OBVIOUS REASONS, IN THE MATTER. 12. THE CONTENTION OF THE ASSESSEE THAT THE CIT(A) PASSED THE ORDER EX-PARTE IS NOT LEGALLY AND FACTUALLY TEN ABLE. THE CIT(A) HAS RECORDED CATEGORICAL FINDINGS THAT THE A SSESSEE FAILED TO APPEAR AND FILE REQUISITE EVIDENCE TO SUP PORT HIS 10 CASE BEFORE THE CIT(A), DESPITE THE DIRECTIONS OF T HE HON'BLE ITAT TO THIS EFFECT. THE FINDINGS OF THE CIT(A), O N THIS ISSUE ARE CONTAINED IN PARA 17 OF HIS ORDER AND THE SAME ARE REPRODUCED HEREUNDER, FOR THE PURPOSE OF PROPER APPRECIATION OF THE SAME : 17. THE LD. COUNSEL FOR THE ASSESSEE HAS BEEN FILI NG THE ADJOURNMENT LETTERS ON ONE GROUND OR THE OTHER DESPITE THE FACT THAT HON'BLE ITAT CHANDIGARH HAS GIVEN DIRECTION TO THE ASSESSEE FOR NOT SEEKING UNNECESSARY ADJOURNMENTS. COPIES OF THE LETTERS OF LD. COUNSEL ARE PLACED AT ANNEXURE-3. DURING THE SPAN O F ABOUT 5 MONTHS, IT IS INTERESTING TO NOTE THAT LD. COUNSEL OF THE ASSESSEE COULD NOT FIND TIME TO FILE THE REPLY OR TO ATTEND. IN MY OPINION, ADEQUATE OPPORTU NITY WAS OFFERED TO THE ASSESSEE AS PER THE DIRECTION OF HON'BLE ITAT. 13. THE AO ALSO AFFORDED PROPER AND REASONABLE OPPORTUNITY TO THE ASSESSEE. IN VIEW OF THIS, WE DO NT FIND ANY SUBSTANCE IN THE CONTENTION OF THE ASSESSEE, ON THE ISSUE OF THE EX-PARTE ORDER PASSED BY THE CIT(A). I T IS SETTLED PROPOSITION OF LAW THAT NO JUDICIAL BENEDIC TION CAN BE CONFERRED ON THE INACTION AND NEGLIGENCE OF ANY PARTY INCLUDING THE PRESENT ASSESSEE. 14. THE AO HAS CATEGORICALLY MENTIONED, IN THE ASSESSMENT ORDER THAT DURING THE YEAR UNDER CONSIDE RATION, THE ASSESSEE SHRI ISHWAR CHAND BANSAL WAS ENJOYING MONTHLY SALARY INCOME FROM M/S KALA EMPORIUM, SECOR 11, CHANDIGARH, AS DIRECTOR AND RENTAL INCOME. HE FILED THE ORIGINAL RETURN DECLARING INCOME OF RS.2,70,206 /-. THE NOTICE U/S 148 WAS ISSUED ON 29.3.2005 AND THE ASSESSMENT WAS COMPLETED ON 24.3.2006. THE AO, FURT HER, RECORDED SPECIFIC FACTUAL FINDING THAT THE ASSESSEE 11 APPELLANT SHRI SANJAY BANSAL FILED RETURN OF INCOME , ON 28.06.2000, DECLARING INCOME OF RS.2,45,089/-. NOT ICE U/S 148 OF THE ACT WAS ISSUED ON 29.3.2005 AND ASSESSME NT WAS COMPLETED ON 24.3.2006. IT IS SUBMITTED THAT I N BOTH THE CASES, ASSESSMENT WAS COMPLETED ON THE BASIS OF RETURN FILED ON 29.4.2005, IN RESPONSE TO NOTICE U/S 148 O F THE ACT. DURING THE ASSESSMENT YEAR UNDER CONSIDERATIO N, HE WAS ALSO ENJOYING MONTHLY SALARY INCOME FROM M/S UPHAAR SAREES LTD. AS DIRECTOR AND RENTAL INCOME. T HE LD. CIT(A) HAS PASSED DETAILED ORDER WHILE UPHOLDING TH E FINDINGS OF THE AO, IN THESE CASES. WE DEEM IT FIT TO REPRODUCE SUCH FINDINGS, WITH A VIEW TO PROPER APPR ECIATION OF THE SAME : 19. I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMIS SIONS . THE PERUSAL OF RECORD SHOWS THAT THE DEPARTMENT UNEARTHED SCAM IN RESPECT OF BOGUS GIFTS. 20. A DETAILED REPORT ( PLACED AS ANNEXURE-2 ) WAS SENT BY INVESTIGATION WING TO THE ASSESSING OFFICER. IT TRANSPIRED THAT BAJAJ FAMILY IS INVOLVED IN GIVING BOGUS GIFTS. THE STATEMENTS (PLACED AS ANNEXURE-4) OF TH ESE PERSONS WERE RECORDED, WHO ACCEPTED THAT PAY ORDER WERE GIVEN IN LIEU OF CASH. THE ASSESSEE FAILED TO SATIS FY THE INGREDIENTS OF SECTION 68 I.E. CAPACITY AND GENUINE NESS OF TRANSACTIONS. THE ONUS IS ON THE ASSESSEE TO PROVE THE SUM FOUND CREDITED IN THE BOOKS U/S 68 OR PROVE THE AMOUNTS CREDITED IN BANK ACCOUNT U/S 69. AS REGARD S THE ONUS, THE MATTER IS SETTLED BY THE HON'BLE COUR TS. THE RELIANCE IS PLACED ON THE FOLLOWING CASE LAWS: (A) COMMISSIONER OF INCOME-TAX V P.MOHANKALA 291 ITR 278 (S.C) WHEREBY THE FOLLOWING QUESTIONS HAVE BEEN ANSWERED BY THE HIGH COURT IN FAVOUR OF THE ASSESSEES AND AGAINST THE REVENUE : '(A) WHETHER, IN THE FACTS AND CIRCUMSTANCES, THE INCOME-TAX APPELLATE TRIBUNAL WAS CORRECT IN LAW TO ACCEPT THE PRINCIPLE OF PREPONDERANCE OF PROBABILITIES IN HOLDING THAT THE CLAIM OF THE APPELLANT THAT THE SUM OF RS. 15,62,500 RECEIVED HIM BY WAY OF GIFTS THROUGH NORMAL BANKING CHANNELS WAS NOT GENUINE AND THAT IT WAS LIABLE TO 12 BE ASSESSED UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961? (B) WHETHER, IN THE LIGHT OF THE LAW ESTABLISHED AND BASED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED INCOME-TAX APPELLANT TRIBUNAL IS LEGALLY JUSTIFIED IN CONCLUDING THAT BURDEN OF PROOF CAST ON THE APPELLANT UNDER SECTION 68 OF THE INCOME-TAX ACT, 1961 HAS NOT BEEN DISCHARGED AND THE INGREDIENTS FOR INVOKING SECTION 68 OF THE INCOME-TAX ACT ARE PRESENT? (C) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CONCLUSION OF THE TRIBUNAL THAT THE CLAIM OF GIFT IS NOT GENUINE IS REASONABLE AND BASED ON RELEVANT MATERIAL AND NOT PERVERSE? ' HELD IN ORDER TO APPRECIATE THE CONTENTIONS URGED BEFORE US IT WOULD BE APPROPRIATE TO NOTICE SECTION 68 OF THE ACT WHICH IS RE-PRODUCED : '68. CASH CREDITS.-WHERE ANY SUM IS FOUND CREDITED IN THE BOOKS OF AN ASSESSEE MAINTAINED FOR ANY PREVIOUS YEAR, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE THEREOF OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE ASSESSING OFFICER, SATISFACTORY, THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR.' THE QUESTION IS WHAT IS THE TRUE NATURE AND SCOPE O F SECTION 68 OF THE ACT? WHEN AND IN WHAT CIRCUMSTANC ES WOULD SECTION 68 OF THE ACT COME INTO PLAY? A BARE READING OF SECTION 68 SUGGESTS THAT THERE HAS TO BE CREDIT OF AMOUNTS IN THE BOOKS MAINTAINED BY AN ASSESSEE; SUCH CREDIT HAS TO BE OF A SUM DURING THE PREVIOUS YEAR; AND THE ASSESSEES OFFER NO EXPLANATI ON ABOUT THE NATURE AND SOURCE OF SUCH CREDIT FOUND IN THE BOOKS; OR THE EXPLANATION OFFERED BY THE ASSESSEES IN THE OPINION OF THE ASSESSING OFFICER IS NOT SATISFA CTORY, IT IS ONLY THEN THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEES OF THAT PREVIOUS YEAR. THE EXPRESSION THE ASSESSEES OFFER NO EXPLANATION MEANS WHERE THE ASSESSEES OFFER NO PROPER, REASONAB LE AND ACCEPTABLE EXPLANATION AS REGARDS THE SUMS FOUN D CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEES. IT IS TRUE THE OPINION OF THE ASSESSING OFFICER FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEES AS NOT SATISFACTORY IS REQUIRED TO BE BASED ON PROPER APPRECIATION OF MATERIAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD. THE OPINION OF T HE ASSESSING OFFICER IS REQUIRED TO BE FORMED OBJECTIV ELY WITH REFERENCE TO THE MATERIAL AVAILABLE ON RECORD. 13 APPLICATION OF MIND IS THE SINE QUA NON FOR FORMING THE OPINION. IN SUMATI'DAYAL V. CIT [1995] 214 ITR 801 (SC); [1995] SUPP 2 SCC 453 THIS COURT HELD 'IN ALL CASES IN WHICH A RECEIPT IS SOUGHT TO BE TA XED AS INCOME, THE BURDEN LIES ON THE DEPARTMENT TO PROVE THAT IT IS WITHIN THE TAXING PROVISION AND IF A RECEIPT IS IN THE NATURE OF INCOME, THE BURDEN OF PROVING THAT IT IS NOT TAXABLE BECAUSE IT FALLS WITHIN EXEMPTION PROVI DED BY THE ACT LIES UPON THE ASSESSEE, BUT, IN VIEW OF SECTION 68 OF THE ACT, WHERE ANY SUM IS FOUND CREDI TED IN THE BOOKS OF THE ASSESSEE FOR ANY PREVIOUS YEAR THE SAME MAY BE CHARGED TO INCOME TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR IF THE EXPLANATION O FFERED BY THE ASSESSEE ABOUT THE NATURE AND SOURCE THEREOF IS, IN THE OPINION OF THE ASSESSING OFFICER, NOT SATISFACTORY. IN SUCH A CASE THERE IS, PRIMA FACIE, EVIDENCE AGAINST THE ASSESSEE, VIZ., THE RECEIPT OF MONEY, AND IF HE FAILS TO REBUT, THE SAID EVIDENCE BEING UNREBUTTED, CAN BE USED AGAINST HIM BY HOLDING THAT IT WAS A RECEIPT OF AN INCOME NATURE. IN THAT CASE THE AMOUNT WAS CREDITED IN THE CAPITAL ACCOUNT IN THE BOOKS AND THE ASSESSEE OFFERED HER EXPLANATION ABOUT THE SAID RECEIPT BEING HER WINNIN GS FROM HORSE RACES. THE EXPLANATION WAS NOT ACCEPTED. THERE WAS NO DISPUTE THAT THE AMOUNT WAS RECEIVED B Y THE ASSESSEE FROM VARIOUS RACE CLUBS ON THE BASIS O F WINNING TICKETS PRESENTED BY HER. THIS COURT BASED ON THE MATERIAL AVAILABLE ON RECORD FOUND THAT AN INFERENCE ABOUT SUCH A PURCHASE HAS TO BE DRAWN ON THE BASIS OF THE CIRCUMSTANCES AVAILABLE ON RECORD INASMUCH AS NO DIRECT EVIDENCE ABOUT SUCH PURCHASE WOULD BE RARELY AVAILABLE. THIS COURT ACCORDINGLY UPHELD THE MAJORITY OPINION OF THE SETTLEMENT COMMISSION BASED ON SURROUNDING CIRCUMSTANCES AND APPLYING THE TEST OF HUMAN PROBABILITIES. THIS AUTHORITATIVE 'PRONOUNCEMENT IN OUR CONSIDERED OPIN ION IS THE COMPLETE ANSWER TO REJECT THE SUBMISSIONS MA DE BY THE LEARNED SENIOR COUNSEL ON BEHALF OF THE RESPONDENTS. IT IS TRUE THAT EVEN AFTER REJECTING THE EXPLANATIO N GIVEN BY THE ASSESSEES IF FOUND UNACCEPTABLE, THE CRUCIAL ASPECT WHETHER ON THE FACTS AND CIRCUMSTANCES OF TH E CASE IT SHOULD BE INFERRED THE SUMS CREDITED IN THE BOOKS OF THE ASSESSEES CONSTITUTED INCOME OF THE PREVIOUS YEAR MUST RECEIVE THE CONSIDERATION OF AUTHORITIES PROVI DED THE ASSESSEES REBUT THE EVIDENCE AND THE INFERENCE DRAWN TO REJECT THE EXPLANATION OFFERED AS UNSATISFACTORY . WE ARE REQUIRED TO NOTICE THAT SECTION 68 OF THE ACT I TSELF PROVIDES, WHERE ANY SUM IS FOUND CREDITED IN THE BO OKS OF THE ASSESSEES FOR ANY PREVIOUS YEAR THE SAME MAY BE 14 CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE S OF THE PREVIOUS YEAR IF THE EXPLANATION OFFERED BY THE ASSESSEES ABOUT THE NATURE AND SOURCE OF SUCH SUMS FOUND CREDITED IN THE BOOKS OF THE ASSESSEES IS IN THE OPINION OF THE ASSESSING OFFICER NOT SATISFACTORY. SUCH OPINION FORMED ITSELF CONSTITUTES A PRIMA FACIE EVI DENCE AGAINST THE ASSESSEES, VIZ., THE RECEIPT OF MONE Y, AND IF THE ASSESSEES FAIL TO REBUT THE SAID EVIDENCE THE S AME CAN BE USED AGAINST THE ASSESSEES BY HOLDING THAT IT -W AS A RECEIPT OF AN INCOME NATURE. ' (B) JASPAL SINGH.VS COMMISSIONER OF INCOME-TAX. 290 ITR 306(P&H) 'THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE INCOME-TAX APPELLATE TRIBUNAL, CHANDIG ARH DATED OCTOBER 7, 2005, FOR THE ASSESSMENT YEAR 1998-99, P ROPOSING THE FOLLOWING SUBSTANTIAL QUESTIONS OF LAW: '(A) WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE INCOME-TAX APPELLATE TRIBUNAL WAS JUSTIFIED IN CONF IRMING THE ACTION OF THE AUTHORITIES BELOW BY UPHOLDING THE AD DITION MADE ON ACCOUNT OF IMPUGNED GIFTS OFRS. 2 LAKHS, 1.70 LA KHS? (B) WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE FINDINGS OF THE INCOME-TAX APPELLATE TRIBUNAL ARE P ERVERSE AND AGAINST THE EVIDENCES ON RECORD THUS UNSUSTAINABLE IN LAW? (C) WHETHER THE INCOME-TAX APPELLATE TRIBUNAL HAS MISDI RECTED ITSELF IN BEING INFLUENCED BY IRRELEVANT FACTORS AN D APPLYING ERRONEOUS CRITERIA WHILE DECIDING THE ISSUE OF GENU INENESS OF THE IMPUGNED GIFTS?' THE FACTS NOTICED IN THE ORDER OF THE TRIBUNAL ARE THAT THE ASSESSEE HAD CONSTRUCTED A HOUSE PROPERTY. HE HAD C LAIMED TO HAVE RECEIVED VARIOUS GIFTS AGGREGATING TO RS. 15,6 9,000 FOR THE ASSESSMENT YEARS 1997-98 TO 2001-02 FROM VARIOUS NO N- RESIDENTS. IN THE YEAR UNDER APPEAL, THE ASSESSEE H AD CLAIMED TO HAVE RECEIVED A SUM OF RS. 4,70,000 FROM NON-RESIDE NTS AND RS. 1,20,000 FROM FOUR PERSONS AT RS. 30,000 EACH. THE ASSESSEE WAS ASKED TO ESTABLISH THE IDENTITY OF THE DONORS, THEIR CREDITWORTHINESS AND GENUINENESS OF THE GIFTS . HELD IT IS WELL-SETTLED THAT MERE IDENTIFICATION OF DONO R AND SHOWING THE MOVEMENT OF GIFT AMOUNT THROUGH BANKING CHANNEL IS NOT ENOUGH TO PROVE GENUINENESS OF THE GIFT. THE ASSESS EE WAS REQUIRED TO ESTABLISH THAT THE DONOR HAD THE MEANS AND THE GIFT WAS GENUINE, FOR NATURAL LOVE AND AFFECTION. REFERE NCE IN THIS REGARD MAY BE MADE TO THE JUDGMENT OF THIS COURT IN LALL CHAND KALRA V. CIT [1931] 22 CTR 135, THE JUDGMENT OF THE DELHI HIGH COURT IN SAJAN DASS AND SONS V. 15 CTT [2003] 264 ITR 435, CIT V. DURGA PRASAD MORE [1971] 82 ITR 540 (SC) AND SUMATI DAYAL V. CIT [1995] 214 ITR 801 (SC). WE HAVE DEALT WITH THIS ASPECT OF THE MATTER AT LEN GTH IN OUR JUDGMENT DATED JULY 31, 2006, IN SUBHASH CHANDE R SEKHRI V. DEPUTY CIT[2007] 290 ITR 300 (P & H) (I. T. A. NO. 265 OF 2006). WE ARE OF THE VIEW THAT THE CONCURRENT FINDINGS OF FACT RECORDED BY THE AUTHORITIES THAT THE GIFTS IN QUEST ION WERE NOT GENUINE, ARE PURE FINDINGS OF FACT AND NO SUBST ANTIAL QUESTION 'OF LAW ARISES. ' (C) RELIANCE IS ALSO PLACED ON THE DECISION OF HON' BLE ITAT, CHANDIGARH IN ITA NO. 422/CHANDI/2007 FOR THE A.Y. 1999- 2000 IN THE CASE OF SH. YASH PAL GOEL (COPY PLACED AT ANNEXURE-5) WHEREIN HON'BLE ITAT UPHELD THE ADDITIO N ON SIMILAR CIRCUMSTANCES BY FOLLOWING THE DECISIONS OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SH. TIRA TH RAM GUPTA, ITA NO. 167 OF 2005, DATED 14/9/2006. THE RE LEVANT PART OF THE DECISION OF HON'BLE ITAT IS REPRODUCED AS UNDER : '7. I HAVE GIVEN MY CAREFUL CONSIDERATION TO THE RI VAL SUBMISSIONS. I HAVE ALSO PERUSED THE ORDERS OF THE LD. LOWER AUTHORITIES. THE CONTENTIONS OF THE LD. COUNS EL FOR THE ASSESSEE THAT THE GIFTS WERE MADE THROUGH BANKI NG CHANNEL AND THAT DURING THE COURSE OF EXAMINATION, THE DONOR MOHINDER SINGH WAS PRODUCED WHO CORROBORATED HAVING MADE THE IMPUGNED GIFTS TO THE ASSESSEE AND, THEREFORE, THE FACTUM OF THE GIFTS STOOD ESTABLISHE D, IN MY OPINION, ARE NOT SUFFICIENT FOR TREATING A GIFT AS GENUINE. A GIFT IS GENERALLY GIVEN OUT OF NATURAL LOVE AND AFF ECTION AND WITHOUT ANY CONSIDERATION DEPICTING CLOSENESS BETWE EN THE DONOR AND THE DONEE. IN MY HUMBLE OPINION, A GIFT C ANNOT BE ACCEPTED AS SUCH TO BE GENUINE MERELY BECAUSE TH E AMOUNT HAS COME BY WAY OF A CHEQUE OR DRAFT THROUGH BANKING CHANNEL, UNLESS THE IDENTITY OF THE DONOR, HIS CREDITWORTHINESS AND GENUINENESS OF RELATIONSHIP WI TH THE DONEE AND THE OCCASION IS PROVED. A BARE PERUSAL OF THE REPORT OF THE ASSESSING OFFICER AS REPRODUCED BY TH E CIT(A) AND QUOTED BY US ABOVE CLEARLY SHOWS THAT THE TESTS LAID DOWN FOR PROVING THE GENUINENESS OF THE GIFT ARE LA CKING IN THIS CASE. A GAINFUL REFERENCE MAY BE MADE TO THE J UDGMENT OF THE JURISDICTIONAL HIGH COURT OF PUNJAB & HARYA NA IN THE CASE OF SH. TIRATH RAM GUPTA, LUDHIANA VS. CIT, LUDHIANA IN ITA NO. 167 OF 2005 DECIDED ON 14.9.200 6, IN THIS REGARD. THE ONUS CAST ON THE ASSESSEE HAS NOT BEEN SUFFICIENTLY DISCHARGED IN THE PRESENT CASE AND ACC ORDINGLY I DECLINE TO INTERFERE WITH THE ORDER OF THE CIT(AJ IN CONFIRMING THE IMPUGNED ADDITIONS MADE BY THE ASSES SING OFFICER. ' 21 THE CASE OF THE ASSESSEE IS ALSO NOT CONVINCIN G IN VIEW OF THE JUDICIAL OPINION ON THE TEST OF HUMAN PROBABILI TIES. THE 16 HON'BLE COURTS, AS GIVEN ABOVE, HAVE DISCUSSED THAT ON SUCH FACTS, THE ASSESSING OFFICER IS JUSTIFIED IN MAKING ADDITIONS. IN THE PRESENT CASE IT HAS BEEN FOUND THAT SO CALLED D ONORS HAVE GIVEN GIFTS TO AS MANY AS 44 PERSONS (SEE LIST IN T HE REPORT - PLACED AS ANNEXURE-2). THIS FACT ITSELF IS SUFFICIE NT TO ARRIVE AT THE CONCLUSION THAT THESE DONORS WERE INVOLVED IN S UCH NON- GENUINE TRANSACTIONS. TO DECIDE THE ISSUE, IT IS IM PORTANT TO SEE THE FACTS AS A WHOLE. IT IS HIGHLY IMPROBABLE THAT BAJAJ FAMILY WOULD BE HAVING LOVE AND AFFECTION WITH SO MANY PER SONS WHO ARE STRANGERS. THIS IS WITHOUT PREJUDICE TO THE FAC T THAT ONUS IS ON THE ASSESSEE. A PARTICULAR CASE SHOULD BE SEEN T AKING INTO ACCOUNT THE WHOLE GAMUT OF CIRCUMSTANCES. SOMETIMES , IF EACH CASE IS SEEN AND WHOLE PICTURE IS SEEN, THEN INFERE NCE MAY BE DIFFERENT. THE RATIO OF DECISION OF HON'BLE ITAT, DELHI IN THE CASE OF NAPAR DRUGS PVT. LTD., 98 ITD 285 (TM) IS APPLICABLE. EXTRACTS OF SOME PARAS ARE GIVEN BELOW : '14. BEING OF THE VIEW THAT THE ISSUE CANNOT BE DEC IDED BY WEARING BLINKERS, THE FULL SCAPE OF THE PICTURE WHI CH EMERGES HAS TO BE TAKEN COGNIZANCE OF AND DEALT WIT H AND MERELY BLINDLY DISPOSING THE ISSUE HOLDING IT AS CO VERED IN THE PECULIAR FACTS AS ARE EMERGING FROM THE IMPUGNE D ORDER WILL TO MY MIND IN THE CIRCUMSTANCES BE NOT APPROPRIATE AS ONCE A JUDICIAL CONSCIOUSNESS HAS BE EN STIRRED, THEN IT MUST BE TAKEN TO ITS LOGICAL CONCL USION. 51. IT, THEREFORE, FOLLOWS THAT IF WHILE DECIDING A CASE THE FIRST TRIBUNAL DID NOT HAVE A PARTICULAR MATERIAL B EFORE IT OR DID NOT TAKE INTO CONSIDERATION PARTICULAR FACTS AND IF THE SECOND TRIBUNAL IS SATISFIED THAT IF THOSE MATE RIAL FACTS HAD BEEN TAKEN INTO CONSIDERATION, THE DECISION OF THE FIRST TRIBUNAL WOULD HAVE BEEN DIFFERENT, IT WOULD JUSTIF Y THE SECOND TRIBUNAL IN NOT ADHERING TO THE DECISION OF THE FIRST TRIBUNAL. ON APPLYING THIS LEGAL PRINCIPLE I FIND T HAT HON'BLE JUDICIAL MEMBER CAME TO THE CONCLUSION THAT THE FACTS OF THE CASE OF THE ASSESSEE COULD NOT BE VIEW ED IN ISOLATION WHEN IT BECAME KNOWN THAT THERE WERE A LA RGE NUMBER OF COMPANIES SIMILARLY PLACED. SHE FOUND THA T IT WAS TOO MUCH OF A COINCIDENCE THAT IN THE CASE OF A LL THE COMPANIES FLOATED BY THE SEARCHED PERSON, ALL THE SHAREHOLDERS AT THE SAME POINT OF TIME WERE IN NEED OF DIRE FUNDS AND ALL OF THEM APPROACHED THE SEARCHED PERSO N AND LEFT SIGNED BLANK DOCUMENTS. IN OTHER WORDS ACCORDI NG TO THE HON'BLE JUDICIAL MEMBER ONCE IT WAS REALIZED TH AT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE TH E ASSESSEE WAS NOT ALONE BUT WAS ONE OF MANY, THE WHO LE COMPLEXION OF THE FACTS AND CIRCUMSTANCES OF THE CA SE 17 BECAME ALTOGETHER DIFFERENT. I SEE CONSIDERABLE FOR CE IN THIS REASONING. THE TRIBUNAL HAS DECIDED THE APPEAL S ON IDENTICAL FACTS IN THE CASES OF REAL OVERSEAS (P.) LTD.; MAKHNI & TYAGI (P.) LTD.; INDRADHAN AGRO PRODUCTS L TD., AKRITI MEDIA (P.) LTD, AND GARS POLYMERS (P.) LTD., EACH IN ISOLATION WITHOUT EXAMINING THE TOTALITY OF THE PICTURE THAT EMERGES ONCE ALL THESE CASES ARE CONSIDERED AS PIECES OF A LARGE MOSAIC. IN OTHER WORDS WHAT THE LEARNED ACCOUNTANT MEMBER CONSIDERED TO BE THE STRENGTH OF THE CASE OF THE ASSESSEE, PRECISELY THE SAME HAS BEEN CONSIDERED BY THE LEARNED JUDICIAL MEMBER TO BE THE WEAKNESS IN THE CASE OF THE ASSESSEE. ACCORDING TO THE LEARNED JUDICIAL MEMBER BY VALIANT EFFORTS MADE THE LEARNED DR COULD CHANGE THE ENTIRE COMPLEX ION OF THE CASE AS COMPARED TO THE CASES EARLIER DECIDED B Y THE TRIBUNAL INCLUDING HERSELF. IT IS NEEDLESS TO SAY T HAT IN SUCH CIRCUMSTANCES THE CASE BEFORE HER FELL IN THE CATEG ORY OF EXCEPTIONS CARVED OUT BY THE SERIES OF JUDGMENTS OF HON'BLE SUPREME COURT AND OF VARIOUS HIGH COURTS DISCUSSED BY ME AT LENGTH FROM PARAGRAPH 28 ONWARDS. IN MY OPINION, THE LEARNED ACCOUNTANT MEMBER WAS ENTITLED TO TAKE A DI FFERENT VIEW OF THE MATTER WHEN AN ALTOGETHER DIFFERENT CAS E WAS PRESENTED BEFORE HER. ' (EMPHASIS SUPPLIED) 22 MOREOVER, THE ASSESSEE HAS NOT DISCHARGED ITS ON US AS PER THE REQUIREMENTS OF SECTION 68 OR 69. THE SO CALLED GIFT DEED HAS BEEN PROVED TO BE NON GENUINE. IN MY OPINION, THE A SSESSING OFFICER HAS GIVEN DETAILED REASONS FOR NOT ACCEPTIN G THE GIFT AS GENUINE. THE ACTION OF THE ASSESSING OFFICER IS UPH ELD. IT MAY ALSO BE MENTIONED THAT THIS MAY BE ONE OF THE REASO NS THAT THE ASSESSEE IS NOT COMING FORWARD FOR GIVING ANY KIND OF EXPLANATION BEFORE ME AS HE KNOWS VERY WELL THAT HE HAS BEEN CAUGHT IN A SCAM. IN FACT, THERE WOULD NOT BE ANY V ALID EXPLANATION TO DEFEND HIS CASE. 23. IT MAY BE POINTED OUT THAT SIMILAR ISSUE HAS BE EN DECIDED BY ME AGAINST THE ASSESSEE IN APPEAL NO.343/P/06-07 IN THE CASE OF LATE SMT. HARBANS KAUR WHEREIN THE BAJAJ FAMILY HAS ALSO GIVEN GIFTS TO SOME OTHER PERSONS. 24. IN VIEW OF THE ABOVE DISCUSSION, BOTH THE APPEA LS ARE DISMISSED. 15. THE GENUINENESS OF THE ALLEGED GIFT TRANSACTION S IN BOTH THE CASES, REMAINS PATENTLY UNPROVED BY THE ASSESSE E. 18 NEEDLESS TO SAY THAT THE ONUS IS CLEARLY CAST, ON T HE ASSESSEE WITHIN THE STATUTORY PROVISIONS OF SECTION 68/69 OF THE ACT, TO PROVE THE NATURE AND SOURCE OF SUCH GIFTS. THE ASSESSEE HAS FAILED TO ADDUCE COGENT, CREDIBLE AND RELIABLE EVIDENCE, TO DISCHARGE HIS BURDEN OF PROVING THE NATURE AND S OURCE OF SUCH GIFTS. IT IS UNDISPUTED FACT THAT BOTH THE DONEES AND THE DONOR, ARE NOT RELATED OR CLOSELY CONNECTED, IN ANY WAY AND, FURTHER, THIS FACT REMAINS UN-REBUTTED BY THE ASSESSEE. HENCE, IT IS A CASE OF GIFTS BY THE STRA NGE DONOR, TO THE STRANGE DONEE. IN VIEW OF THIS, IT IS NOT A CASE OF GIFT, OUT OF LOVE AND AFFECTION ON THE PART OF THE DONOR, AS BOTH THE DONOR AND DONEE ARE STRANGERS. I N THESE CASES, IT IS RELEVANT TO NOTE THAT BOTH THE D ONEES ARE EARNING INCOME FROM SALARY, AS DISCUSSED EARLIE R. THE DONEE SHRI ISHWAR CHAND BANSAL FILED RETURN OF INCO ME DURING THE RELEVANT PERIOD UNDER CONSIDERATION DISC LOSING INCOME OF RS. 2,70,206/- BY SHRI ISHWAR CHAND BANSA L AND RS.2,45,089/- BY ANOTHER DONEE SHRI SABJAY BANS AL. HOWEVER, THEY RECEIVED GIFTS OF RS.12,00,000/- AND RS.15,00,000/-, WHICH IS FOUR TIMES OF THEIR DISCLO SED INCOME. THE ONUS OF PROVING GIFTS IS HEAVIER VIS-- VIS, THE ONUS OF PROVING THE CASH CREDITS OR LOANS. HENCE, THE RATIO OF THE DECISION OF APEX COURT IN THE CASE OF SUMATI DAYAL (SUPRA) IS APPLICABLE IN THESE CASES. IN GIFT CASES, THE DONOR VOLUNTARILY MAKES GIFT, WITHOUT ANY CONSI DERATION AND THERE IS NO OBLIGATION ON THE PART OF THE DONEE , TO RETURN THE SUM OF MONEY RECEIVED AS GIFT, WHEREAS IN THE C ASE OF LOAN, THE SAME HAS TO BE PAID BACK. 19 16. THE DONOR FAMILY HAS GIVEN GIFTS NOT ONLY TO TH ESE TWO DONEE ASSESSEES BUT TO A NUMBER OF OTHER DONEES, WH O ARE ALSO STRANGERS TO THEM. THEREFORE, IT IS UNDISPUTE D FACT THAT DONOR IS A PROFESSIONAL ACCOMMODATION ENTRY PROVIDE R, IN THE GARB OF ALLEGED GIFTS, IN LIEU OF RECEIPT OF CASH A S IS EVIDENT FROM THE FINDINGS OF THE LD. CIT(A), AS WELL AS OF THE AO. THE ASSESSEES NAME APPEAR AT CERTAIN SERIAL NUMBERS AS INDICATED EARLIER, IN THE LONG LIST OF DONEES, WHO RECEIVED GIFTS, FROM THE SAME DONOR I.E. THE BAJAJ FAMILY. THE ASSESSEE HAS FAILED TO DEMONSTRATE THAT THE DONOR H AS GIVEN GIFTS, TO HIS OWN FAMILY I.E. TO FATHER, MOTH ER, BROTHER, SISTER OR ANY OTHER CLOSE RELATIVES. SIMI LARLY, THE ASSESSEE HAS ALSO FAILED TO ESTABLISH, THE FACTUM O F ANY OCCASION, ON WHICH SUCH GIFTS WERE MADE TO THE DONE ES. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, LD. 'AR' CONTENDED THAT THE DONEE WAS IN NEED OF GIFTS AND, HENCE, GIFTS WERE RECEIVED BY THEM. A PERUSAL OF THE FACTS REVEALS THAT DONEE CONTINUED TO SHIFT STAND, IN RESPECT OF SUCH GIFTS. ABOVE ALL, THE STATEMENTS OF THE BAJAJ FAMILY CLEAR LY REVEALS THE MODUS OPERANDI OF SUCH GIFTS AND NON-GENUINENES S THEREOF. IT IS ALSO OBVIOUS THAT NO RECIPROCAL GIF TS WERE MADE TO THE DONOR. THE FACTS OF THE PRESENT CASE ARE SQ UARELY COVERED BY THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF CIT V P.MOHANAKALA, 291 ITR 278 (S.C) WHERE BY THE FOLLOWING QUESTIONS HAVE BEEN ANSWERED BY THE HON'BLE HIGH COURT IN FAVOUR OF THE ASSESSEE AND AGAINST TH E REVENUE: 20 A BARE READING OF SECTION 68 OF THE INCOME-TAX ACT ,1961, SUGGESTS THAT (I) THERE HAS TO BE CREDIT OF AMOUNTS IN THE BOOKS MAINTAINED BY THE ASSESSEE; (II) SUCH CREDIT HAS TO BE A SUM OF MONEY DURING THE PREVIOUS YEAR, AND (II I) EITHER(A) THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF SUCH CREDITS FOUND IN THE BOOK S OR (B) THE EXPLANATION OFFERED BY THE ASSESSEE, IN THE OPINION OF THE AO, IS NOT SATISFACTORY. IT IS ONLY THEN THAT THE SUM SO CREDITED MAY BE CHARGED TO INCOME-TAX AS THE INCOME OF THE ASSESSEE OF THAT PREVIOUS YEAR. THE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION MEANS THE ASSESSEE OFFERS NO PROPER REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS THE SUMS FOUND CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEE. THE OPINION OF THE AO FOR NOT ACCEPTING THE EXPLANA TION OFFERED BY THE ASSESSEE AS NOT SATISFACTORY IS REQU IRED TO BE BASED ON PROPER APPRECIATION OF MATERIAL AND OTH ER ATTENDING CIRCUMSTANCES AVAILABLE ON THE RECORD. TH E OPINION OF THE AO IS REQUIRED TO BE FORMED OBJECTIV ELY WITH REFERENCE TO THE MATERIAL ON RECORD. APPLICATI ON OF MIND IS THE SINE QUA NON FOR FORMING THE OPINION. IN CASES WHERE THE EXPLANATION OFFERED BY THE ASSES SEE ABOUT THE NATURE AND SOURCE OF THE SUMS FOUND CREDI TED IN THE BOOKS IS NOT SATISFACTORY THERE IS, PRIMA FA CIE, EVIDENCE AGAINST THE ASSESSEE, VIZ, THE RECEIPT OF MONEY. THE BURDEN IS ON THE ASSESSEE TO REBUT THE SAME, AN D, IF HE FAILS TO REBUT IT, IT CAN BE HELD AGAINST THE AS SESSEE THAT IT WAS A RECEIPT OF AN INCOME NATURE. THE BURDEN IS ON THE ASSESSEE TO TAKE THE PLEA THAT , EVEN IF THE EXPLANATION IS NOT ACCEPTABLE, THE MATERIAL AND ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD DO NOT JUSTIFY THE SUM FOUND CREDITED IN THE BOOKS BEING T REATED AS A RECEIPT OF INCOME NATURE. THE ASSESSEES RECEIVED FOREIGN GIFTS FROM ONE COMMO N DONOR. THE PAYMENTS WERE MADE TO THEM BY INSTRUMENT S ISSUED BY FOREIGN BANKS AND CREDITED TO THE RESPECT IVE 21 ACCOUNT OF THE ASSESSEE BY NEGOTIATION THROUGH A BA NK IN INDIA. MOST OF THE CHEQUES SENT FROM ABROAD WERE DR AWN ON THE CITIBANK, N.A.SINGAPORE. THE EVIDENCE INDICA TED THAT THE DONOR WAS TO RECEIVE SUITABLE COMPENSATION FROM THE ASSESSEES. ON THIS MATERIAL THE AO HELD THAT TH E GIFTS THOUGH APPARENT WERE NOT REAL AND ACCORDINGLY TREAT ED ALL THOSE AMOUNTS WHICH WERE CREDITED IN THE ACCOUNT BO OKS OF THE ASSESSEES AS THEIR INCOME APPLYING SECTION 6 8 OF THE INCOME-TAX ACT 1961. THE ASSESSEES DID NOT CONT END THAT EVEN IF THEIR EXPLANATION WAS NOT SATISFACTORY THE AMOUNTS WERE NOT OF THE NATURE OF INCOME. THE COMMISSIONER (APPEALS) CONFIRMED THE ASSESSMENT. ON FURTHER APPEAL, THERE WAS A DIFFERENCE OF OPINION B ETWEEN THE TWO MEMBERS OF THE APPELLATE TRIBUNAL AND THE M ATTER WAS REFERRED TO THE VICE PRESIDENT WHO CONCURRED WI TH THE FINDINGS AND CONCLUSIONS OF THE AO AND THE COMMISSIONER (APPEALS). ON APPEAL THE HIGH COURT RE - APPRECIATED THE EVIDENCE AND SUBSTITUTED ITS OWN FINDINGS AND CAME TO THE CONCLUSION THAT THE REASON S ASSIGNED BY THE TRIBUNAL WERE IN THE REALM OF SURMI SES, CONJECTURE AND SUSPICION. ON APPEAL TO THE SUPREME COURT : HELD, REVERSING THE DECISION OF THE HIGH COURT, THA T THE FINDINGS OF THE AO, THE COMMISSIONER (APPEALS) AND THE TRIBUNAL WERE BASED ON THE MATERIAL ON RECORD AND N OT ON ANY CONJECTURES AND SURMISES. THAT THE MONEY CAME B Y WAY OF BANK CHEQUES AND WAS PAID THROUGH THE PROCES S OF BANKING TRANSACTION WAS NOT BY ITSELF OF ANY CONSEQUENCE. THE HIGH COURT MISDIRECTED ITSELF AND ERRED IN DISTURBING THE CONCURRENT FINDINGS OF FACT. 17. THE HON'BLE SUPREME COURT, AFTER ANALYZING THE PROVISIONS OF SECTION 68 CLEARLY HELD THAT THE EXPR ESSION THE ASSESSEE OFFERS NO EXPLANATION MEANS, WHERE THE AS SESSEE OFFERS NO PROPER, REASONABLE AND ACCEPTABLE EXPLANA TION AS REGARDS THE SUMS FOUND CREDITED IN THE BOOKS MAINTA INED BY 22 THE ASSESSEE. IN THE PRESENT CASE, THE ASSESSEE HA S FAILED TO FILE ANY CREDIBLE EXPLANATION, AS REGARDS TO THE SO URCE AND GENUINENESS OF SUCH GIFT TRANSACTIONS. THE HON'BLE SUPREME COURT, AFTER PLACING RELIANCE, ON THE DECISION, IN THE CASE OF SUMATI DAYAL V CIT (1995) 214 ITR 801 (S.C) REI TERATED THE PRINCIPLE OF PREPONDERANCE OF PROBABILITY, SURR OUNDING CIRCUMSTANCES AND PROBABILITY OF HUMAN CONDUCT IN DECIDING SUCH CASES. THE RELEVANT PART OF THE DECISION OF THE HON'BLE SUPREME COURT IS REPRODUCED HEREUNDER : CASH CREDITS-BURDEN OF PROOF-IS ON ASSESSEE TO PRO VE THAT AMOUNTS CREDITED IN ACCOUNTS DID NOT REPRESENT INCOME-CLAIM THAT SUBSTANTIAL AMOUNTS HAD BEEN WON IN HORSE RACING IN TWO CONSECUTIVE ACCOUNTING YEARS-FI NDING THAT CLAIM WAS NOT JUSTIFIED-ADDITION OF AMOUNT AS INCOME FROM UNDISCLOSED SOURCES-VALID-INCOME-TAX ACT,1961 S. 68 CONSTITUTION OF INDIA, ART.136. 18. THE FACTS OF THE PRESENT CASE ARE SQUARELY COVE RED IN FAVOUR OF THE REVENUE IN THE CASE OF JASPAL SINGH V CIT, 290 ITR 306 9P&H), RENDERED BY THE JURISDICTIONAL HIGH COURT: IT IS WELL SETTLED THAT MERE IDENTIFICATION OF DONO R AND SHOWING THE MOVEMENT OF GIFT AMOUNT THROUGH BANKING CHANNEL IS NOT ENOUGH TO PROVE THE GENUINENESS OF T HE GIFT. THE ASSESSEE IS REQUIRED TO ESTABLISH THAT T HE DONOR HAD THE MEANS AND THE GIFT WAS GENUINE, FOR NATURAL LOVE AND AFFECTION. REFERENCE IN THIS REGARD MAY BE MAD E TO THE JUDGEMENT OF THIS COURT IN LALL CHAND KALRA V C IT (1981) 22 CTR 135, THE JUDGEMENT OF DELHI HIGH COUR T IN SAJJAN DASS & SONS V CIT (2003) 264 ITR 435; CIT V DURGA PRASAD MORE (1971) 82 ITR 540 (S.C) AND SUMAT I DAYAL V CIT (1995) 214 ITR 801 (S.C). 23 WE HAVE DEALT WITH THIS ASPECT OF THE MATTER AT LENGTH. IN OUR JUDGEMENT DATED JULY 31, 2006 IN SUBHASH CHAND SHEKHRI V DY.CIT (2007) 290 ITR 300 (P&H), WE ARE OF THE VIEW THAT THE CONCURRENT FINDINGS OF THE FACT RECORDED BY THE AUTHORITIES TH AT THE GIFTS IN QUESTION WERE NOT GENUINE, ARE PURE FINDINGS OF FACT AND NO SUBSTANTIAL QUESTION OF LAW ARISES. 19. FURTHER, IN ANOTHER CASE, THE HON'BLE JURISDICT IONAL HIGH COURT, IN THE CASE OF YASHPAL GOYAL V CIT (2009) 31 0 ITR 75 (P&H) HELD THAT THE SO CALLED GIFT SET UP BY THE APPELLAN T WAS NOT BONAFIDE TRANSACTION. THE HON'BLE HIGH COU RT ALSO DEFINED THE EXPRESSION THAT THE ASSESSEE OFFERS NO EXPLANATION IN SECTION 68 MEANS, WHERE THE ASSESSEE OFFERS NO PROPER, REASONABLE AND ACCEPTABLE EXPLANA TION, AS REGARDS THE SUM FOUND CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEE. THE HON'BLE HIGH COURT FURTHER HELD THAT SINCE THE CLAIM OF GIFT WAS MADE BY THE ASSESSEE, ONUS LAY ON HIM, NOT ONLY TO ESTABLISH TH E IDENTITY OF THE PERSON MAKING THE GIFT BUT ALSO HIS CAPACITY TO MAKE A GIFT AND THAT IT HAD ACTUALLY BE EN RECEIVED AS A GIFT FROM THE DONOR. IN THE ULTIMATE ANALYSIS, HON'BLE HIGH COURT ADJUDICATED THE ISSUE IN FAVOUR OF THE REVENUE AND HELD THE GIFT AS NON-GENU INE GIFT. THE HON'BLE JURISDICTIONAL HIGH COURT FURTHE R IMPOSED COST ON THE APPELLANT AMOUNTING TO RS.30,00 0/-, HAVING REGARD TO THE FACT SITUATION THAT CASE ON TH E GROUND THAT THE APPELLANT DRAGGED THE DEPARTMENT IN LITIGA TION AND THE TIME OF THE COURT HAS ALSO BEEN WASTED. THE REL EVANT AND OPERATIVE PART OF THE DECISION IS REPRODUCED HEREUN DER: 24 THE EXPRESSION THE ASSESSEE OFFERS NO EXPLANATION IN SECTION 68 MEANS WHERE THE ASSESSEE OFFER NO PROPER , REASONABLE AND ACCEPTABLE EXPLANATION AS REGARDS TH E SUMS FOUND CREDITED IN THE BOOKS MAINTAINED BY THE ASSESSEE. IT IS TRUE THAT THE OPINION OF THE AO FOR NOT ACCEPTING THE EXPLANATION OFFERED BY THE ASSESSEE A S NOT SATISFACTORY IS REQUIRED TO BE BASED ON PROPER APPRECIATION OF MATERIAL AND OTHER ATTENDING CIRCUMSTANCES AVAILABLE ON RECORD. THE OPINION OF THE AO IS REQUIRED TO BE FORMED OBJECTIVELY WITH REFERENCE TO THE MATERIAL AVAILABLE ON RECORD. APPLICATION OF MIND IS THE SINE QUA NON FOR FORMING THE OPINION. THE ASSESSEE WAS ASKED TO PROVE THE GENUINENESS OF THE GIFT. THE ASSESSEE DID NOT LEAD ANY EVIDENCE EXCEPT A LETTER WRITTEN BY HIS COUNSEL TO THE ITO THAT THE D ONOR HAD GIFTED AN AMOUNT OF RS.98,000/- TO THE ASSESSEE BY TWO DRAFTS ON ACCOUNT OF LOVE AND AFFECTION BETWEEN HIM (DONOR) AND ASSESSEE (DONEE). THE ITO ISSUED SUMMON S TO THE DONOR UNDER SECTION 131 TO APPEAR BEFORE HIM FO R THE PURPOSE OF RECORDING HIS STATEMENT TO PROVE THE GENUINENESS OF THE GIFT BUT HE FAILED TO RESPOND TO THE SAID SUMMONS. THE ITO, THEREFORE, MADE ADDITION OF THE GIFT AMOUNT. HELD THAT SINCE THE CLAIM OF GIFT WAS MADE BY THE ASSESSEE, THE ONUS LAY 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 HAD ACTUALLY BE EN RECEIVED AS A GIFT FROM THE DONOR. THE FINANCIAL P OSITION OF THE DONOR SUGGESTED THAT HE WAS NEITHER IN THE CAPACITY TO MAKE THE GIFT NOR HAVING THE SOURCE FRO M WHERE THE GIFT WAS MADE. NO REASON WHATSOEVER HAD BEEN ASSIGNED FOR GIFTING SUCH A HUGE AMOUNT BY THE DONOR TO THE ASSESSEE. THE DONOR NEVER VISITED THE HOME OF THE ASSESSEE. WHERE WAS THE LOVE AND AFFECTION? IT WAS NOTHING BUT SUBTERFUGE TO AVOID INCOME-TAX. THE TRANSACTIONS WERE NOT GENUINE ONES. IN THE INSTANT CASE, 25 THE ASSESSEE HAD FAILED TO PROVE THE GENUINENESS OF THE GIFT, CAPACITY OF THE DONOR TO MAKE THE GIFT, THE S OURCE FROM WHERE THE GIFT WAS MADE AND THE RELATION BETWE EN THE DONOR AND THE DONEE. THEREFORE, THE ADDITION IN QUESTION WAS JUSTIFIED. PER COURT : THE SO-CALLED GIFT SET UP BY THE APPELL ANT WAS NOT BONA FIDE TRANSACTION. THE UNSCRUPULOUS USE EVERY GIMMICK TO AVOID PAYING INCOME-TAX. IF THE STATE EXCHEQUER IS MADE THE TARGET OF DECEIT AND TH E REVENUE COMES DOWN, THE DEVELOPMENT OF THE COUNTRY WILL BE A CASUALTY. IT IS REPREHENSIBLE THAT SOME CITIZENS SPEND ON LITIGATION AND UNNECESSARILY BRIN G MATTERS BEFORE COURTS RATHER THAN PAY TAX ON THEIR INCOME. THE TENDENCY NEEDS TO BE DISCOURAGED AND CURBED. THIS COURT IS CONSTRAINED TO FEEL THAT THE DEPARTMENT INCOME-TAX HAS UNNECESSARILY BEEN DRAGGED IN THIS LITIGATION AND THE TIME OF THE COUR T HAS ALSO BEEN WASTED. THEREFORE, RS.30,000/- IS IMPOSED AS COSTS ON THE APPELLANT. THE AMOUNT SHALL BE DEPOSITED BY THE APPELLANT WITHIN 45 DAYS FROM TODAY FAILING WHICH THE INCOME-TAX AUTHORITIES SHALL RECOVER IT FROM HIM AS ARREARS OF INCOME-TAX. 20. THE FACTS OF THE PRESENT CASE SQUARELY FALLS WI THIN THE RATIO LAID DOWN BY THE HON'BLE JURISDICTIONAL HIGH COURT AND THE HON'BLE SUPREME COURT, IN THE DECISIONS DISCUSS ED ABOVE. 21. IT IS AN ESTABLISHED PROPOSITION OF LAW, IN THE FACE OF SECTION 68 AND ITS VARIANTS THAT THE ONUS, TO ESTAB LISH GENUINENESS OF CREDIT/GIFTS IN THE BOOKS OF ACCOUNT IS UPON THE ASSESSEE. MERE FILING OF CONFIRMATORY LETTER O R PARTICULARS OR GIFT DEED IS NOT ENOUGH TO DISCHARGE THE ONUS. EVEN FILING OF THE AFFIDAVIT OF THE DONOR OR CREDITOR IS NOT SU FFICIENT TO DISCHARGE ONUS. SIMILARLY, ROUTING THE AMOUNT OF G IFTS OR 26 CREDITS THROUGH BANKING CHANNEL IS NOT SIGNIFICANT. THE TRANSACTIONS ROUTED THROUGH BANKS, MERELY REVEAL MO VEMENT OF FUNDS AND NOT THE CAPACITY OF THE DONOR OR GENUI NENESS OF THE GIFTS. 22. IN THE PRESENT CASE, THE ACT OF GIFTS IS NOT VO LUNTARY, AS THE ENTIRETY OF THE STEPS OR SERIES OF STEPS TAKEN THROUGH A MEDIATOR CLEARLY ESTABLISH THAT SUCH GIFTS ARE ARRA NGED ENTRIES, FOR THE PURPOSE OF CONVERTING BLACK MONEY INTO WHITE MONEY. THEREFORE, IN THE GARB OF GIFTS, THE ASSESS EE IS RECEIVING HIS OWN UNACCOUNTED MONEY. IT IS COMMON PLACE OBSERVATION THAT IN THE PRESENT MATERIALISTIC SOCIE TY, NO STRANGERS WOULD HAVE SUCH INSTINCTS TO MAKE SUCH HU GE GIFTS TO SUCH STRANGERS WHO ARE UNKNOWN TO EACH OTH ER, AS, THE DONEES ARE NOT DEITY OR SUCH PUBLIC OR SPIR ITUAL PERSONALITY, INSPIRING REVERENCE, VENERATION OR PER SONAL ESTEEM, TO INSPIRE THE STRANGERS, LIKE BAJAJ FAMILY , TO ACT AS A DONOR AND SHOWER BOUNTY OF GIFTS ON SUCH DONEES. TH ERE IS PATENTLY A LACK OF BLOOD RELATIONSHIP OR FAMILY REL ATIONSHIP AND ALSO OR ABSENCE OF OCCASION, FOR MAKING SUCH GI FTS, AND, HENCE SUCH CONSIDERATIONS ARE SIGNIFICANT AND CORRO BORATIVE CONSIDERATIONS, CLEARLY POINTING TO THE NON-GENUINE NESS OF THE GIFT TRANSACTIONS. THE AO, AS WELL AS, THE CIT( A), HAS ESTABLISHED BY WAY OF COGENT, CREDIBLE AND RELEVANT MATERIAL THAT THE IMPUGNED TRANSACTIONS OF GIFTS ARE NON-GEN UINE AND PURELY ARRANGED ENTRIES. 23. THE SUBMISSION MADE BY THE ASSESSEE VIDE LETTER DATED 05.08.2009, IN BOTH THE CASES, IS ALMOST SIMILAR IN CONTENTS 27 AND TEXT, EXCEPT VARIATION IN THE AMOUNT OF GIFT/LO AN. IN THE CASE OF SHRI ISHWAR CHAND, IN THE SUBMISSION, IT IS CLEARLY MENTIONED THAT THE ASSESSEE WAS IN DIRE NEED OF SOM E FUNDS, FOR THE PURCHASE OF PROPERTY DURING THE FINA NCIAL YEAR 1999-2000. THEREFORE, LOAN WAS RECEIVED FROM BAJAJ FAMILY FROM MR.SURESH KUMAR, ON 31.07.1999 FOR TH E PURPOSE OF PURCHASE OF THE PROPERTY. IT WAS, FURTHER, STATED IN THE SAID SUBMISSION THAT LATER ON, LENDER INSIS TED ON GIFTING THIS MONEY TO THE ASSESSEE. KEEPING IN VIE W THE OLD ASSOCIATION AND INSISTENCE OF THE LENDER, THE A SSESSEE ACCEPTED THE GIFT FROM THE SAID DONOR. THUS, IT IS EVIDENT THAT IT IS A CASE OF NEED BASED TRANSACTIONS OF GIF TS, ARRANGED FOR THE PURCHASE OF PROPERTY, AS ADMITTED BY THE AS SESSEE HIMSELF. IT IS HIGHLY IMPROBABLE THAT ANY HUMAN BEING, IN THIS MATERIALISTIC WORLD, REQUESTING FOR LOAN, WAS OFFERED AS GIFT BY THE BAJAJ FAMILY, OF AN AMOUNT OF RS.12,00,000/-, IN THE CASE OF SHRI ISHWAR CHAND BANSAL AND RS.15,0 0,000/-, IN THE CASE OF SHRI SANJAY BANSAL. CONTINUING THE SUBMISSION, CONTENTION AND STAND TAKEN BY THE ASSES SEE, IT WAS, FURTHER, MENTIONED THAT. THE ASSESSEE LOST CONTACT WITH THE FAMILY ON ACCOUNT OF SOME MISGIVINGS AND INABILITY OF THE ASSESSEE TO SUPPORT STAND OF THE F AMILY MEMBERS. IN SUBSTANCE, THE ASSESSEE PRESENTED A PICTURE THAT THE DONEE HAD TOTAL SEVERANCE OF RELATIONS WIT H THE BAJAJ FAMILY DUE TO SOME DISPUTE. IN THIS CONNECTION, IT IS MENTIONED THAT THESE ARE THE SUBMISSIONS OF THE ASS ESSEE AND NOT OF THE REVENUE AUTHORITIES. IN VIEW OF THIS SPECIFIC SUBMISSION/CONTENTION OF TOTAL SEVERANCE OF RELATIO NS OF THE 28 ASSESSEE WITH THE BAJAJ FAMILY, THE FIRST ARGUMENT/ CONTENTION RAISED BY THE ASSESSEE THAT THE BAJAJ FAMILY HAD BE EN MAGNANIMOUS, TO CONVERT HIS OFFER OF LOAN INTO GIFT , STANDS DEMOLISHED. THE FACTS OF THE CASE, SUMMED UP BY TH E ASSESSEE IN THE IMPUGNED SUBMISSIONS, ARE REPRODUCE D HEREUNDER : LOAN AMOUNTING TO RS.1200000/- WAS GIVEN BY CHEQUE NO.042367/- DRAWN ON VIJAYA BANK, CHANDIGARH. SUITABLE AFFIDAVIT AND OTHER AGREEMENTS/DEEDS WERE EXECUTED FOR THIS PURPOSE. THESE LOANS WERE LATER CONVERTED INTO GIFTS ON INSISTENCE AND ASKANCE OF T HE SAID BAJAJ FAMILY. THE FOLLOWING FACT IS THUS AN ESTABLISHED FACT; LOAN AMOUNTING TORS.1200000/- WAS GIVEN BY CHEQUE NO.042367/- DRAWN ON VIJAYA BANK, CHANDIGARH. SUITABLE AFFIDAVIT AND OTHER AGREEMENTS/ DEEDS WERE EXECUTED FOR THIS PURPOSE. THESE LOANS WERE LATER CONVERTED INTO GIFTS ON INSISTENCE AND ASKANCE OF T HE SAID BAJAJ FAMILY. IT IS WORTH CONSIDERING THAT HOW ELSE THE ASSESSEE COULD OBTAIN DRAFTS FROM ACCOUNT OF MR.SUR ESH BAJAJ WHICH WAS A VOLUNTARY ACT AND ALSO THE AFFIDA VIT CONVERTING GRANT OF LOAN LATER ON TO GIFTS. CASE REOPENED UNDER SECTION 147 ASSESSMENT COMPLETE D WITHOUT PROVIDING TO THE ASSESSEE ALL DETAILS AND OPPORTUNITY TO CROSS EXAMINE THE DONOR. THE ASSESSMENT IN THE CASE WAS REOPENED UNDER SECTI ON 147 OF THE INCOME-TAX ACT BY GIVING A NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT. DURING COURSE OF ASSESSMENT PROCEEDINGS, THE AO SOUGHT DETAILS REGAR DING THE GIFTS/LOANS RECEIVED BY THE ASSESSEE. EXPLANATI ONS AS REGARDS THE BACKGROUND OF THE DONEE AND THE EVIDENC ES AS REGARDS HAVING RECEIVED THE GIFTS WERE DULY FURN ISHED 29 BEFORE THE AO. STATEMENT OF THE ASSESSEE WAS ALSO RECORDED. THE ASSESSEE, DURING COURSE OF ASSESSMENT PROCEEDINGS ALSO SOUGHT COPIES OF THE FOLLOWING DOCUMENTS FOR SUBSTANTIATING HIS SUBMISSIONS AS REG ARDS HAVING RECEIVED THE SUMS AND THE GENUINENESS OF THE TRANSACTION : 1. COPY OF REPORT OF ADIT, INVESTIGATION 2. COPY OF STATEMENT OF ACCOUNT OF MR.SURESH KUMAR BAJAJ 3. COPY OF BANK STATEMENT OF SURESH KUMAR BAJAJ 4. COPIES OF STATEMENT OF THE ASSESSEE RECORDED BY ADIT 5. PARTICULARS OF THE ASSESSMENT OF MR.SURESH KUMAR BAJAJ FOR THE ASSESSMENT YEAR 2000-2001. 6. PARTICULARS OF THE OTHER GIFTS GIVEN BY THE SAID MR.SURESH KUMAR BAJAJ THE AO, HOWEVER DID NOT PROVIDE THESE DOCUMENTS AND THE FOLLOWING DOCUMENTS WERE PROVIDED TO THE ASSESSEE STATEMENT OF ABNASHI LAL BAJAJ RECORDED BY DIT STATEMENT OF RAKESH BAJAJ RECORDED BY DIT COPIES OF BANK ACCOUNTS OF SURESH BAJAJ, THE DONOR THE ASSESSEE ALSO SOUGHT AN OPPORTUNITY TO CROSS EXAMINE THE DONOR WITH A VIEW TO PROVE HIS VIEW POINT REGARDING THE TRANSACTION. THE ASSESSEE WAS HOWEVER NOT ALLOWED TO EXAMINE THE DONOR, AND OTHER PERSONS, ON THE BASIS OF WHOSE STATEMENTS, TH E SUM OF RS.1200000 GIFTED WAS ADDED TO THE INCOME OF THE ASSESSEE. THE ASSESSEE IN THE MATTER WAS COMPLETED BY MAKING AN ADDITION OF THE SUM OF RS.1200000 TO THE INCOME OF THE ASSESSEE BY ILLEGALLY TREATING THE SUMS GIFTED BY SAID MR.SURESH KUMAR AS INCOME OF THE ASSESSEE. 30 APPEAL DECIDED EX-PARTE AN APPEAL IN THE CASE WAS FILED BEFORE CIT(A), CHALLENGING THE ABOVE ADDITION AND BRINGING OUT THE FACTS REGARDING THE ILLEGAL ADDITION MADE TO THE INCOME OF THE ASSESSEE. THE CASE WAS FIXED BY THE CIT(A) ON 25.03.2009 AND AN ADJOURNMENT IN WRITING WAS SOUGHT. THE CIT(A), HOWEVER, DID NOT CONSIDER THE REQUEST FOR ADJOURNMENT AND VIDE ORDER DATED 25.3.2009 DISMISSED THE APPEAL OF THE ASSESSEE FOR NON-PROSECUTION OF APPEAL. 24. THE ASSESSEE, IN THE ABOVE REPRODUCED SUMMED UP TEXT, ATTEMPTED TO PLEAD THAT THE GIFTS WERE VOLUNTARY AC T, AS THE ASSESSEE HAD FILED AFFIDAVIT ALSO. A BARE PERUSAL OF THE STATEMENTS RECORDED BY THE REVENUE AUTHORITIES, REP RODUCED BY THE CIT(A), IN THE IMPUGNED ORDER, CLEARLY REVEA LS THAT THERE WAS DENIAL OF THE BAJAJ FAMILY OF ANY LOAN OR GIFT TO ANYONE. IN THE SAID DEPOSITION OF VARIOUS PERSONS, MODUS- OPERANDI OF ISSUANCE OF PAY ORDERS, HAS BEEN CLEARL Y HIGHLIGHTED, AS RECEIPT OF CASH FROM THE NEEDY/DONE E PERSONS AND ISSUANCE OF PAY ORDERS TO SUCH PERSONS THROUGH BANK ACCOUNTS, UNDER REFERENCE. IN VIEW OF THIS, THIS C ONTENTION OF THE ASSESSEE IS SELF-SERVING AND AFTER-THOUGHT, AND , HENCE, SUCH SUBMISSION DOES NOT BEAR EVEN THE SEMBLANCE OF RESEMBLANCE TO THE TRUE, FACTUAL POSITION OF THE PR ESENT CASE. IN FACT, THESE TRANSACTIONS ARE ARRANGED ACCOMMODAT ION ENTRIES, CAMOUFLAGED INITIALLY, AS OFFER OF LOAN AN D SUBSEQUENTLY AS ALLEGED GIFT RECEIVED BY THE ASSESS EE. 25. THE ASSESSEE, FURTHER, CONTENDED THAT THE CIT(A ), HAS PASSED EX-PARTE ORDER AND DISMISSED THE APPEAL OF T HE ASSESSEE, FOR NON-PROSECUTION. THIS CONTENTION OF T HE 31 ASSESSEE IS FACTUALLY INCORRECT, IN VIEW OF THE DET AILED TEXT OF THE RELEVANT PART OF THE ORDER PASSED BY THE CIT(A) , AS REPRODUCED ABOVE. A BARE PERUSAL OF THE IMPUGNED OR DER PASSED BY THE CIT(A), CLEARLY REVEALS THAT FROM 20. 10.2008 TO 15.03.2009, 11 OPPORTUNITIES WERE OFFERED, TO THE A SSESSEE. HOWEVER, THE ASSESSEE CHOSE NOT TO COOPERATE, IN TH E APPELLATE PROCEEDINGS FOR THE OBVIOUS REASONS. NEE DLESS TO SAY THAT THE CONCEPT OF NATURAL JUSTICE IS NOT ONE- WAY TRAFFIC, PURELY COINED FOR THE ASSESSEE AND NOT FOR THE REVE NUE. NO JURISPRUDENCE WOULD CONTEMPLATE PROVIDING OF UNENDI NG OPPORTUNITIES, TO THE ASSESSEE, MOTIVATING HIM TO P RESENT HIS CASE, IN SUCH A SITUATION, WHERE IT IS IN THE INTER EST OF THE ASSESSEE, NOT TO COOPERATE, IN THE PROCEEDINGS BEFO RE ANY REVENUE AUTHORITY, INCLUDING THE LD. CIT(A). THERE FORE, THIS CONTENTION OF THE ASSESSEE IS PURELY MAKE-BELIEF VE RSION, WHICH CANNOT BE ACCEPTED, IN VIEW OF RECORDING OF D ETAILS OF OPPORTUNITIES AFFORDED BY THE CIT(A) AND DETAILED A ND WELL- REASONED ORDER PASSED BY HIM, ON THE ISSUE, IN QUES TION. 26. FURTHER, IT IS INTERESTING TO NOTE THAT THE ONU S U/S 68/69 OF THE ACT IS IN BUILT UNDER SUCH STATUTORY P ROVISIONS. THE APPELLANT CONTENDED THAT REVENUE SHOULD HAVE AL LOWED EXAMINATION OF THE DONOR. SUCH APPROACH OF THE ASS ESSEE INTENDS TO USE REVENUE MACHINERY, TO COLLECT EVIDEN CE, FOR THE ASSESSEE. SUCH APPROACH OF THE ASSESSEE IS NOT IN C ONSONANCE WITH THE PROVISIONS OF SECTION 68/69 OF THE ACT AND GENERAL CONCEPT OF ONUS TO PROVE. 32 27. THE ASSESSEE ALSO CONTENDED THAT THE RE-OPENING OF THE CASE U/S 148 IS NOT JUSTIFIED AND PLACED RELIANCE O N THE FOLLOWING DECISIONS, INTER-ALIA MAKING A REFERENCE TO THE STATEMENTS RECORDED BY THE REVENUE AUTHORITIES : 1) RAMESH K.SAHA & OTHERS V DY.CIT, ITAT (BANG) A BENCH (2005) 93 TTJ (BANG) 556. 2) DURGA PRASAD GOYAL V ITO (ASR)(SB) (2006) 98 ITD 227 (ASR). 3) KAJODI MAL VIRDHI V ITO, ITAT, JODHPUR SMC BENCH (2003) 78 TTJ (JD) 935. 4) MURLI DHAR LAHORI MAL V CIT (2006) 200 CTR (GUJ) 109. 28. WE HAVE CAREFULLY PERUSED AND CONSIDERED THE FA CTS OF THE CASES AND THE RATIO LAID DOWN BY THE ITAT OR HO N'BLE HIGH COURT THEREON AND FOUND THAT NONE OF THE CASE LAW I S APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE P LACING RELIANCE ON VARIOUS DECISIONS AND THEIR APPLICABILI TY ARE NOT SYNONYMOUS BUT ARE TWO DIFFERENT AND DISTINCT ASPEC T. FURTHER, CASE LAW CITED BY THE AO, AS ALSO THE CIT( A), SQUARELY COVER THE FACTUAL POSITION OF THE PRESENT CASE. 29. THE ASSESSEE PLACED RELIANCE, ON VARIOUS DECISI ONS, TO ESTABLISH THE GENUINENESS OF THE GIFT TRANSACTIONS: I) ITO V SANJAY KUMAR GOYAL, ITA NO. 1560/DELHI/2003, A.Y. 1999-2000. II) TAM TAM PEDDA GURUVA REDDY V JCIT & OTHERS (2007) 291 ITR 44 (KARN) III) VIJENDER KUMAR & SONS, HUF V ACIT (2007) 13 SOT 56 (DEL) 33 IV) ITO V DHARAMVEER DULLI, ITAT CHANDIGARH (2003) 81 TTJ 1028 (CHD) V) D.C.JAIN V ITO, ITAT DELHI BENCH B (1988) 32 TTJ (DEL) 442 VI) DY.CIT V RAMDEV KUMAR CHITLANGIA, ITAT JODHPUR BENCH (2004) 89 TTJ 346 (JD) VII) ITO V RAJIV AGGARWAL, ITAT, DELHI SMC-I BENCH (2004) 89 TTJ 1095 (DEL) 30. WE HAVE CAREFULLY PERUSED THE FACTS AND THE RAT IO OF THE CASE LAWS RELIED UPON BY THE ASSESSEE, WITH A VIEW TO ESTABLISHING THE GENUINENESS OF THE GIFT TRANSACTIO NS AND FOUND THAT NONE OF THE CASE LAW IS APPLICABLE TO TH E FACTS OF THE PRESENT CASE, BEING FACTUALLY DIFFERENT AND DISTINGUISHABLE. 31. THE CASE LAW RELIED UPON BY THE REVENUE IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, IN THE CASE OF M/S G URINDER KAUR V ITO, ITAT CHANDIGARH IN ITA NO. 141/CHD/2010 A.Y. 2001-02 DATED 27.07.2010, IS IDENTICAL ON FACTS AND INVOLVES THE SAME BAJAJ FAMILY, PROVIDING LOAN TO C ERTAIN THE ASSESSEE. THE ITAT CHANDIGARH BENCH, AFTER DETAILED DISCUSSION OF THE MODUS-OPERANDI OF THE BAJAJ FAMIL Y, IN PROVIDING LOANS AND ALSO AFTER CONSIDERING THE FACT S OF THAT CASE, DISMISSED THE APPEAL OF THE ASSESSEE. T HE RELEVANT AND OPERATIVE PART OF THE SAID DECISION IS AS UNDER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE CIT(APPEALS) DATED 15.01.2009 FOR THE ASSESS MENT YEAR 2001-02. THE ONLY DISPUTE IN THIS APPEAL RELA TES TO A 34 SUM OF RS.3,50,000/- IN RESPECT OF LOAN RAISED FROM ONE SHRI RAKESH BAJAJ, WHICH HAS BEEN CONSIDERED AS UNEXPLAINED BY THE AUTHORITIES BELOW. 2. IN BRIEF, THE FACTS ARE THAT THE ASSESSEE CLAIME D TO HAVE RECEIVED A LOAN OF RS.3,50,000/- FROM SHRI RAK ESH BAJAJ VIDE CHEQUE NO.5,75,209/- DATED 27.09.2000 DR AWN ON STATE BANK OF INDIA, SECTOR 17-B, CHANDIGARH. T HE ASSESSEE CLAIMED THAT THE LOAN WAS INTEREST FREE AN D RETURNABLE IN 20 YEARS AND IN SUPPORT, A COPY OF LO AN AGREEMENT DATED 27.09.2000 WAS FILED. IN ORDER TO VERIFY THE GENUINENESS OF THE TRANSACTION, THE ASSESSING O FFICER RECORDED THE STATEMENT OF THE ASSESSEE, CONTENTS OF WHICH HAVE BEEN EXTRACTED BY THE ASSESSING OFFICER IN THE IMPUGNED ORDER. FURTHER, THE ASSESSING OFFICER ALS O CONFRONTED TO THE ASSESSEE A COPY OF STATEMENT OF S HRI RAKESH BAJAJ TENDERED BEFORE THE ADDITIONAL DIRECTO R OF INCOME TAX (INV.)-II, CHANDIGARH ON 28.10.2003. A PORTION OF THE STATEMENT HAS BEEN EXTRACTED BY THE ASSESSIN G OFFICER IN THE ASSESSMENT ORDER. IN TERMS OF THE S AID STATEMENT, IT EMERGED THAT AS PER SHRI RAKESH BAJAJ , HIS BANK ACCOUNTS WERE USED TO GIVE PAY ORDERS/BANK DRA FTS TO DIFFERENT PERSONS AND IN LIEU THEREOF, CASH WAS REC EIVED. THE SAID PERSON ALSO DEPOSED THAT DOCUMENTS SUCH AS GIFT DEED, AFFIDAVITS, LOAN CONFIRMATIONS ETC. WERE ALSO ISSUED TO THE SAID PERSONS. ON BEING ASKED AS TO WHETHER H E HAD GIVEN ANY LOAN OR GIFT FROM HIS NRE BANK ACCOUNT, T HE SAID PERSON STATED THAT EXCEPT LOANS MADE TO SHRI RANJAN CHAWLA AND REENA CHAWLA, NO OTHER LOANS OR GIFTS HA VE BEEN GIVEN TO ANY PERSON FROM HIS NRE ACCOUNTS. ON THE BASIS OF THE AFORESAID, THE ASSESSING OFFICER REQUI RED THE ASSESSEE TO PROVE THE GENUINENESS OF THE LOAN OF RS.3,50,000/- CLAIMED TO HAVE BEEN RECEIVED FROM SH RI RAKESH BAJAJ FROM HIS NRE ACCOUNT WITH STATE BANK O F INDIA, CHANDIGARH. AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE, ASSESSING OFFICER HAS CONCLUDED THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF THE LOAN IN QUESTION AND ACCORDINGLY, A SUM OF RS.3,50,000/- WA S 35 ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS INCOME FROM UNDISCLOSED SOURCES. THE SAID ADDITION HAS BEEN CONFIRMED BY THE CIT(APPEALS) AGAINST WHICH, THE AS SESSEE IS IN APPEAL BEFORE US. 3. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE HAS VEHEMENTLY ARGUED THAT THE BURDEN CAST ON THE ASSES SEE STOOD DISCHARGED IN AS MUCH AS THE LOAN AGREEMENT D ATED 27.09.2000 PROVED THE TRANSACTION BETWEEN THE ASSES SEE AND SHRI RAKESH BAJAJ. IT IS POINTED OUT THAT THE STATEMENT OF SHRI RAKESH BAJAJ RECORDED ON 28.10.2003 WAS NOT RECORDED IN THE CASE OF THE ASSESSEE AND THAT THE S AME DID NOT SPECIFICALLY MENTION THE NAME OF THE ASSESSEE. FOR THE ABOVE REASONS, IT WAS SUBMITTED THAT THE SAID STATE MENT CANNOT BE USED AGAINST THE ASSESSEE AND ON THE CONT RARY, RELIANCE SHOULD BE PLACED ON THE MATERIAL SUBMITTED BY THE ASSESSEE. IT WAS FURTHER POINTED OUT THAT IT STAND S ESTABLISHED THAT THE LOAN HAS BEEN RECEIVED BY THE ASSESSEE THROUGH BANKING CHANNELS AND THEREFORE, IT S GENUINENESS CANNOT BE DOUBTED. 4. ON THE OTHER HAND, LEARNED DR HAS RELIED UPON TH E ORDERS OF THE LOWER AUTHORITIES IN SUPPORT OF THE C ASE OF THE REVENUE. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY. IN THIS CASE, IT IS QUITE EVIDENT THAT AFTER THE AS SESSEE WAS CONFRONTED WITH THE STATEMENT OF SHRI RAKESH BAJAJ DATED 28.10.2003, TENDERED BEFORE THE INCOME TAX AUTHORIT IES, THE ASSESSEE HAS NOT BEEN ABLE TO BRING ANY MATERIAL OR DOCUMENTARY PROOF TO SUPPORT THE GENUINENESS OF THE TRANSACTION. QUITE CLEARLY, PRIOR TO SUCH EVIDENCE, THE MATERIAL BROUGHT ON RECORD BY THE ASSESSEE WAS LIAB LE TO BE ACCEPTED. SO HOWEVER, THE LOAN AGREEMENT DATED 27.09.2000 CLAIMED BY THE ASSESSEE IN ORDER TO JUST IFY THE IMPUGNED TRANSACTION IS AN EVIDENCE OF A PERIOD PRI OR TO DEPOSITION OF SHRI RAKESH BAJAJ BEFORE THE INCOME T AX AUTHORITIES, TENDERED ON 28.10.2003. 36 6. THE PLEA OF THE APPELLANT THAT THE SAID STATEMEN T HAS NOT BEEN RECORDED IN THE CASE OF THE ASSESSEE OR TH AT SHRI RAKESH BAJAJ HAS NOT SPECIFICALLY NAMED THE ASSESSE E, ARE FACTORS WHICH DO NOT TAKE AWAY THE VERACITY OF THE STATEMENT RECORDED ON 28.10.2003. THE SAID STATEMEN T CLEARLY BRINGS OUT, DEPOSITION OF SHRI RAKESH BAJAJ THAT HE HAD NOT ADVANCED ANY LOAN EXCEPT TO SHRI RANJAN CHA WLA AND REENA CHAWLA OUT OF HIS NRE BANK ACCOUNTS. IT I S FURTHER BROUGHT OUT THAT OUT OF SUCH NRE BANK ACCOU NTS, PAY ORDERS/DRAFTS WERE GIVEN TO DIFFERENT PERSONS I N LIEU OF CASH. IN OUR CONSIDERED OPINION, THE SAID ADVERSE STATEMENT TENDERED BEFORE A STATUTORY AUTHORITY, CL EARLY SHIFTED THE BURDEN ON THE ASSESSEE TO PROVE THE GENUINENESS OF THE TRANSACTION REFLECTED IN THE LOA N AGREEMENT DATED 27.09.2000. OSTENSIBLY, SUBSEQUENT TO THE SAID STATEMENT, ASSESSEE HAS NOT PRODUCED ANY MATERIAL OR EVIDENCE TO DIS-APPROVE SUCH ADVERSE EV IDENCE AND THEREFORE, IN OUR VIEW, THE BURDEN CAST ON THE ASSESSEE TO PROVE GENUINENESS OF THE IMPUGNED CREDIT HAS NOT BEEN DISCHARGED. ACCORDINGLY, THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING THE IMPUGNED ADDITION. 7. AS A RESULT THEREOF, THE APPEAL OF THE ASSESSEE IS DISMISSED. 32. THE PRESENT APPEALS ARE DIRECTLY COVERED AND SUPPORTED BY THIS DECISION OF OUR COORDINATE BENCH, AS THE ASSESSEE HAS RECEIVED INITIALLY LOAN AND SUBSEQUENT LY ON CONVERSION OF LOAN AS GIFT, AS CONTENDED BY THE ASS ESSEE FROM THE SAME PARTY I.E. BAJAJ FAMILY. 33. THE CIT(A), PASSED DETAILED ORDER BY PLACING RE LIANCE ON THE RELEVANT MATERIAL ON RECORD. A BARE PERUSAL OF THE APPELLATE ORDER REVEALS THAT FINDINGS OF THE CIT(A) , THAT THE ASSESSEE'S CASE IS PART OF A BIG SCAM OF PROVIDING GIFTS TO VARIOUS NEEDY PERSONS, CANNOT BE FAULTED WITH. THE 37 DEPOSITION MADE CLEARLY HIGHLIGHTED THE MODUS-OPERA NDI OF ISSUING PAY ORDERS OR CHEQUES FOR SUCH ALLEGED GIFT S, AFTER ACCEPTING EQUIVALENT CASH IN LIEN OF SUCH GIFT CHEQ UES. THUS, THE INGREDIENTS OF SECTION 68 OR 69 REMAINS UNSATIS FIED. SIMILARLY, THE CREDIBILITY OF SUCH GIFTS AS ALSO TH E GENUINENESS REMAINS IN DEEP DOUBT. SUCH FINDINGS O F THE CIT(A) HAVE BEEN DULY FORTIFIED BY THE TRUE RATIO O F THE APEX COURT IN THE CASE OF CIT V P.MOHANAKALA 291 IT R 278 (S.C) AND NUMBER OF DECISIONS OF THE HON'BLE JURISDICTIONAL HIGH COURT. THE HON'BLE JURISDICTIONAL HIGH COURT HELD IN THE CASE OF SUBHASH CHANDER SEKHRI V DCIT (2007) 290 ITR 300 (P&H) THAT IN THE ABSENCE OF NO EVIDENCE TO SHOW THAT ALLEGED GIFTS WERE RECEIVED ON THE OCC ASION OF MARRIAGE IN FAMILY OR OTHER HAPPY OCCASIONS, FROM R ELATIVES, THE TRIBUNALS FINDINGS IN CONFIRMING SUCH ADDITION S CANNOT BE HELD AS PERVERSE. SIMILAR VIEW WAS TAKEN IN ANOT HER CASE OF GIFT IN THE CASE OF JAIPAL SINGH V CIT (2007) 29 0 ITR 306 (P&H) UPHOLDING THE FINDING OF THE TRIBUNAL, THAT G IFTS UNDER CONSIDERATION WERE NOT PROVED TO BE GENUINE AND THA T THIS INFERENCE BEING ONE OF FACT, THE HIGH COURT COULD N OT INTERFERE. IN ANOTHER CASE, THE ASSESSEE CLAIMED T O HAVE RECEIVED GIFTS FROM DONORS, WHO WERE STRANGERS TO A SSESSEE AND PERSONS OF MEAGER MEANS. CASH WAS DEPOSITED IN DONORS ACCOUNT AND ON THE SAME DAY, CHEQUE WAS ISSUED TO T HE ASSESSEE. THE GIFTS WERE TREATED AS UNEXPLAINED BY THE TRIBUNAL IN THE CASE OF ISHRAWATI DEVI V ITO (2008) 298 ITR (AT) 313 (ALL.) 38 34. THE ASSESSEE (DONEE) GAVE NOMENCLATURE OF SUCH SUM, INITIALLY AS LOAN AND SUBSEQUENTLY AS GIFTS, ON CON VERSION OF SUCH LOAN BY THE DONOR. THUS, THE ORIGIN AND END OF SUCH TRANSACTIONS, IS DONEE, CAMOUFLAGED AS GIFTS. SHRI ISHWAR CHAND BANSAL, IN HIS DEPOSITION ON 7.3.2006 U/S 131 OF THE ACT, IN RESPONSE TO QUESTION NO.5, AS REPRODUCED FR OM PAGE 2 OF ASSESSMENT ORDER, AS UNDER : Q.NO.5 HAVE YOU EVER TAKEN ANY LOAN OR GIFT FROM ANY PERSON, IF YES, WHEN ? ANS. YES, I HAVE TAKEN LOAN OF RS.12,00,000/- (RUPEES TWELVE LACS) FROM SHRI SURESH BAJAJ S/O SHRI ABHNASHI LAL BAJAJ ABOUT 506 YEARS BACK, APPROXIMATELY IN THE YEAR 1999 AND THE DATE PROBABLY WAS 21.7.1999 SIMILARLY, THE ASSESSEE DONEE SHRI SANJAY BANSAL ALSO DEPOSED ON 7.3.2006 U/S 131 OF THE ACT IN RESPONSE TO QUESTION NO.5, AS REPRODUCED FROM PAGE 2 OF THE ASSESSMENT ORDER, AS UNDER : Q.NO.5 HAVE YOU TAKEN ANY LOAN FROM ANY PERSON, IF YES, WHEN ? ANS. YES, I HAVE TAKEN LOAN OF RS. 15,00,000/- (RUPEES FIFTEEN LACS) FROM SHRI SURESH BAJAJ, S/O SHRI ABHNASH LAL BAJAJ IN JULY/AUG.,1999. THE EXACT DATE I DO NOT KNOW. LATER ON, IT WAS CONVERTED INTO GIFT. 35. THE DEPOSITION BY BOTH THE DONEES CLEARLY REVEA L THE TRUE NATURE OF SUCH TRANSACTIONS, WHICH NEED NO ELABORAT ION BEING QUITE OBVIOUS. 39 36. THE FINDINGS OF THE LD. CIT(A), ON THE ISSUE OF TREATING THE GIFTS IN THE PRESENT APPEAL AS NON-GENUINE, IS DULY SUPPORTED BY THE DECISION OF THE ITAT CHANDIGARH BE NCH, JURISDICTIONAL HIGH COURT AND THE HON'BLE SUPREME C OURT, AS IS EVIDENT FROM THE PERUSAL OF THE IMPUGNED APPELLA TE ORDER, REPRODUCED ABOVE AND IN VIEW OF THE ABOVE LEGAL AND FACTUAL DISCUSSION. 37. IN VIEW OF THE ABOVE LEGAL AND FACTUAL DISCUSSI ONS, THE APPEALS OF THE ASSESSEES ARE DISMISSED AND FINDINGS OF THE CIT(A) ARE UPHELD. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH JAN.,2012. SD/- SD/- ( SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH JAN.,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH