ITO, Bangalore V. M/s Shri Harsha V. Shashtry, Bangalore

ITA 567/BANG/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1562 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-02-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 21-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G V GOPALA RAO; JACINTA ZIMIK VASHAI ASSESSE
• Keywords: Gift
• Section: 69

Judgement Text

PAGE 1 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 1 THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE SHRI GEORGE GEORGE K, J.M. AND SHRI A MOHAN ALANKAMONY, A.M. ITA NO.567/BANG/2010 (ASST. YEAR 1999-2000) THE INCOME TAX OFFICER, WARD-2(3), BANGALORE. - APPELLANT VS M/S SHRI HARSHA V SHASTRY, NO.294/C, 17 TH MAIN, IDEAL HOME TOWNSHIP, RAJARAJESHWARI NAGAR, BANGALORE-98. - RESPO NDENT C.O.NO.38/BANG/2010 (ASST. YEAR 1999-2000) (BY ASSESSEE) REVENUE BY : SHRI G V GOPALA RAO & SMT. JACINTA ZIMIK VASHAI ASSESSEE BY : SHRI SACHIN KUMAR O R D E R PER GEORGE GEORGE K : THIS APPEAL OF THE REVENUE AND THE CROSS OBJECTIO N OF THE ASSESSEE ARISE OUT OF THE ORDER OF THE CIT(A)-I CON CERNING ASST. YEAR 1999-2000. 3. THE EFFECTIVE GROUNDS RAISED IN THE APPEAL ARE AS FOLLOWS:- PAGE 2 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 2 I) THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.35,23,975/- MADE BY THE AO U/S 69 OF THE I T ACT, 1961 BY HOLDING THAT THEY WERE GIFTS RECEIVED BY THE ASSESSEE FROM ABROAD AS GURUPADAKANIKA. II) THE LEARNED CIT(A) HAS ERRED IN ALLOWING THE ASSESSEES APPEAL WITHOUT APPRECIATING THE GROUNDS ON WHICH THE CLAIM OF THE ASSESSEE HAD BEEN REJECTED BY THE AO. III) THE LEARNED CIT(A) HAS ERRED IN NOT APPRECIATING THAT THE AO HAS CONSIDERED SOME OF THE DONATIONS RECEIVED AS GENUINE AND ONLY WHEN DISCREPANCIES/DEVIATIONS WERE NOTICED, THE CLAIM OF THE ASSESSEE WAS REJECTED. 4. THE BRIEF FACTS OF THE CASE ARE AS FOLLOWS:- THE ASSESSEE IS AN INDIVIDUAL. HE CLAIMS TO BE A SPIRITUAL GURU WITH FOLLOWERS ALL OVER THE WORLD. HE IS ALSO THE MANAGING TRUSTEE OF SRI DURGA NIMISHAMBA TRUST. THE TRUST I S SEPARATELY ASSESSED TO INCOME TAX. FOR THE ASST. YEAR 1999-200 0, RETURN OF INCOME WAS FILED ON 7/1/2000 DECLARING AN INCOME OF RS.5,292/-. THE SAME WAS PROCESSED U/S 143(1)(A) BY ACCEPTING THE IN COME RETURNED. LATER, THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) WAS ISSUED. DURING THE COURSE OF ASSESSMENT PROCEEDING S, ON VERIFICATION OF THE ASSESSEES BANK ACCOUNT IN VIJAYA BANK A/C NO .9198 IN GOKULAM BRANCH, MYSORE, IT WAS NOTICED THAT THE FOLLOWING AM OUNTS HAVE BEEN CREDITED TO THE BANK ACCOUNT AGAINST THE HEADS OUT STANDING BILLS FOR COLLECTION OR CLEARING:- PAGE 3 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 3 14/08/98 RS. 44,400 26/08/98 RS. 1,99,385 26/08/98 RS. 30,858 26/08/98 RS. 38,583 27/08/98 RS. 35,392 27/08/98 RS. 13,900 05/09/98 RS. 2,11,583 16/09/98 RS. 96,105 06/10/98 RS. 1,06,608 06/11,98 RS. 39,900 23/12/98 RS.26,92,200 29/10/98 RS. 15,061 4.1 OUT OF THE ABOVE SAID AMOUNTS CREDITED, THE AS SESSEE ISSUED A CHEQUE OF RS.21 LAKHS TO DURGA NIMISHAMBA TRUST ON 23/12/1998. THE ASSESSEE CLAIMED THE ABOVE SAID AM OUNTS CREDITED IN THE BANK ACCOUNT REPRESENT GURUPADAKANIKE RECEIVED FROM HIS DEVOTEES ABROAD. THE DETAILS OF THE GIFTS CLAIMED TO BE RECEIVED ARE AS FOLLOWS:- SL. NO. DATE OF RECEIPT OF CHEQUE/DD PARTICULARS AMOUNT RECEIVED IN FOREIGN CURRENCY AMOUNT EQUIVALENT RECEIVED IN INDIAN CURRENCY (RS.) 1. 28/10/98 R S SUBRAMANYAM, USA $ 351.00 13,900 2. 03/08/98 MR. DALJINDER SINGH MANN, CANADA ------ 30,951 3. 08/08/98 MR. DALJINDER SINGH MANN, CANADA. 38,700 2,00,000 4. 11/08/98 MR. SUNIL GHAI, CANADA $ 1,400.00 44,400 5. 12/08/98 MR. AJAY KAUSHIK, CANADA $ 3,501.00 96,105 6. 05/09/98 MRS. NEENA VERMA, CANADA $ 7,800.00 2,12,133 7. 16/09/98 MR. K SHANUMUGAM, SINGAPORE. $ 4,420.00 1,06,608 8. 13/10/98 MR. K S MOGAN, MALAYSIA $ 1,111.00 39,900 9. 13/12/98 WILLIAM LOW & VICTOR NG, SINGAPORE. $ 1,05,000.00 26,92,200 PAGE 4 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 4 10. 24/12/98 MR. SUNIL GHAI, CANADA $ 550.00 15,229 11. OTHER SMALL RECEIPTS RECEIVED DURING THE YEAR 11,553 TOTAL 35,37,179/- 4.2 ALL THE ABOVE GIFTS, EXCEPTING FOR SL. NO.11, ARE RECEIVED THROUGH BANKING CHANNELS IN THE FORM OF CHEQUE/DDS. THE ASSESSEE HAD FURNISHED THE DECLARATION OF GIFTS FROM THE ABO VE PERSONS. HOWEVER, THE AO REJECTED THESE GIFTS AS NON-GENUINE FOR THE FOLLOWING REASONS:- A) THE GIFT DECLARATIONS ARE ON A PLAIN PAPER IN A COMMON FORMAT (EXCEPT THAT OF MR. WILLIAM LOW AND VICTOR NG) BEREFT OF DETAILS AS TO WHETHER MONEY WAS GIFTED IN CASH OR DEMAND DRAFT AND BANK DETAILS. B) NONE OF THE DECLARATIONS (EXCEPT THAT OF MR. WILLIAM LOW AND VICTOR NG) USE THE WORD GURUPADAKANIKA NOR DO THEY REFER THE ASSESSEE AS THEIR SPIRITUAL GURU. THEY ONLY MENTION THAT MONEY WAS GIFTED UNCONDITIONALLY OUT OF NATURAL LOVE AND AFFECTION. ONLY THE DECLARATION OF MR. WILLIAM LOW AND VICTOR USES DIFFERENT WORDS. C) IN HIS STATEMENT RECORDED ON 24.7.2001 THE ASSESSEE CATEGORICALLY SAID THAT HE WILL NOT BE ABLE TO ADDUCE EVIDENCE OF THE SOURCE OF SUCH GURUPADAKANIKA FROM THE ABOVE MENTIONED DECLARANTS. HE FURTHER STATED THAT HE SHALL BE ABLE TO PRODUCE THEM FOR VERIFICATION. D) HOWEVER, IN HIS LETTER DATED 11.3.2002, THE ASSESSEE STATED THAT HE WILL NOT BE IN A POSITION TO PRODUCE THEM FOR VERIFICATION AND THAT THIS IS AGAINST HIS SPIRITUAL DHARMA. PAGE 5 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 5 THE AO FINALLY CONCLUDED THAT THE ASSESSEE HAD NO T PROVED THAT: O THE DONORS EXIST AND THAT THEY SIGNED DECLARATIONS; O THAT THEY HAVE ACTUALLY GIVEN GIFT IN THE FORM OF MON EY; O THAT THE GIFTS REPRESENT GURUPADAKANIKA; AND O THERE IS DISCREPANCY BETWEEN THE DECLARATION AND THE DD APPLICATION OF MR. WILLIAM LOW AND VICTOR NG. 4.3 THE AO CONCLUDED THAT SINCE THE ASSESSEE DID N OT FURNISH ANY FRESH GIFT DECLARATION CONTAINING THE DE TAILS OF THE INSTRUMENT AND THE BANK THROUGH WHICH THE GIFTS WER E MADE, THE ASSESSEE HAD NOT DISCHARGED THE ONUS OF PROOF FIXED ON HIM. HE THEREFORE INVOKING THE PROVISIONS OF SECTION 69 OF INCOME-TAX ACT ADDED THE SAID SUM OF RS.35,23,975/-. 5. AGGRIEVED BY THE ORDER OF ASSESSMENT, FOR SOLACE , THE ASSESSEE TOOK UP THE MATTER BEFORE THE FIRST APPELL ATE AUTHORITY. 6. BEFORE THE FIRST APPELLATE AUTHORITY, THE FOLLOW ING CONTENTIONS WERE RAISED:- THE AO ERRED IN IGNORING THE FACT THAT THE ASSESS EE HAS FURNISHED THE NAMES AND ADDRESSES OF THE DONORS AND THE RESPECTIVE AMOUNTS REMITTED BY THEM THROUGH BANKING CHANNELS. THE AO ALSO ERRED IN NOT APPRECIATING THE PRACTICAL IMPOSSIBILI TY OF PRODUCING THE DONORS AS THEY ARE FOREIGN NATIONALS AND BECAUSE OF THE SPIRITUAL RELATIONSHIP EXISTING BETWEEN THE ASSESSEE AND THE DONORS. THE AO ERRED IN DRAWING AN ADVERSE INFERENCE AGAINST THE A SSESSEE ESPECIALLY PAGE 6 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 6 WHEN SPECIFIC DETAILS SUCH AS CHEQUE/DD NO., DATE O F CHEQUE/DD, DATE OF RECEIPT OF CHEQUE/DD AND THE NAME OF THE BANK FR OM WHICH THE CHEQUE/DD WAS ISSUED FAVOURING THE ASSESSEE WERE FU RNISHED BY THE ASSESSEE. THE AO ERRED IN NOT APPRECIATING THE FAC T THAT MR. WILLIAM LOW, WHO SIGNED THE DECLARATION IN THE NAME OF HIMS ELF AND MR. VICTOR NG WAS DOING SO ON BEHALF OF SEVERAL OF THE DEVOTEE S, WHOSE OFFERINGS WERE POOLED TOGETHER AND REMITTED BY A SINGLE DEMAND DRAFT DATED 16/12/2998 BY MR. VICTOR NG. THE AO ERRED IN DRAWING AN ADVERSE INFERENCE AGAI NST THE ASSESSEE JUST BECAUSE MR. VICTOR NG DID NOT SIG N THE DECLARATION WHEREAS IT WAS MR. VICTOR NG HIMSELF WHO WAS RESPON SIBLE FOR OBTAINING THE DD REMITTED TO SHRI HARDHA V SHASTRY O N BEHALF OF SEVERAL DEVOTEES. THE AO OUGHT TO HAVE ACCEPTED TH E ASSESSEES EXPLANATION RELATING TO GURUPADAKANIKE IN ITS ENTIR ETY, INSTEAD OF REJECTING THE EXPLANATION IN RESPECT OF GIFTS RECEI VED FROM FOREIGN NATIONALS WHILE ACCEPTING THE EXPLANATION IN RESPEC T OF GIFTS RECEIVED FROM LOCAL DEVOTEES. THE AO ERRED IN NOT CONSIDERING THE ASSESSEES RE QUEST FOR VERIFICATION OF DETAILS FURNISHED BY ISSUE OF SU MMONS TO THE CONCERNED PARTIES IN CASE THE AO ENTERTAINED ANY DOU BT REGARDING THE CORRECTNESS OF THE ASSESSEES CLAIM. THE AO ERRED IN DISTINGUISHING THE RATIO OF THE DECISION IN THE CASE OF THE CIT V PROF. PGA NATH (234 ITR 854) WHICH WAS QUOTED BY THE ASSESSEE IN HIS FAV OUR. PAGE 7 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 7 7. THE CIT(A), FOR DETAILED REASONING MENTIONED IN PARA 5 TO 7 OF HIS IMPUGNED ORDER, ALLOWED THE APPEAL FILE D BY THE ASSESSEE. 8. THE REVENUE, BEING AGGRIEVED, IS IN APPEAL BEFO RE US. 9. THE LEARNED DR SUPPORTED THE REASONING AND CONC LUSION OF THE A.O. IT WAS SUBMITTED BY THE LEARNED DR THAT IF NECESSARY ENQUIRY WAS NOT CONDUCTED BY THE AO, THEN THE MATTER SHOULD BE REMITTED TO THE AO FOR FRESH CONSIDERATION. 10. ON THE OTHER HAND, THE LEARNED AR REITERATED T HE SUBMISSION MADE BEFORE THE INCOME TAX AUTHORITIES. HE ALSO RELIED ON THE FINDING/CONCLUSION OF THE CIT(A). 11. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL ON RECORD. IT IS NOT THE CASE OF THE DEPA RTMENT THAT THESE AMOUNTS WERE RECEIVED FOR PROFESSIONAL SERVICES REN DERED BY THE ASSESSEE DURING THE YEAR AND THE AMOUNTS COULD BE BR OUGHT TO TAX. THE DEPARTMENT HELD THAT THE AMOUNT CREDITED IN THE BANK ACCOUNT OF THE ASSESSEE, THOUGH CLAIMED AS GIFTS, ARE NOT GENU INE GIFTS AND HAD TO BE TAXED U/S 69 OF THE I T ACT. OUT OF THE TOTAL A DDITION OF RS.35,23,975/-, MAJOR ADDITION IS OF RS.26,92,200/- BEING GIFT, STATED TO BE RECEIVED FROM MR. WILLIAM LOW AND VICTOR NG. THE ASSESSEE HAD FILED DECLARATION OF DONORS. THE DECLARATION IS DA TED 16/12/1998. ALONG WITH THE DECLARATION, A PHOTOCOPY OF THE DD AN D A COPY OF THE APPLICATION MADE TO BANK FOR GETTING THE DD WAS ALS O FILED WITH THE AO. IN THE SAID DECLARATION, THE DECLARANT HAD SPE CIFICALLY MENTIONED PAGE 8 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 8 THAT WHAT WAS PAID BY HIM IS GURUPADAKANIKE. THE AO DID NOT ACCEPT THE DECLARATION FOR THE REASON THAT IT HAS BEEN ISS UED ON A PLAIN PAPER AND THE DECLARATION HAS NOT BEEN EXECUTED BY THE PER SON, WHO HAS ACTUALLY SENT THE AMOUNT TO THE ASSESSEE. SUCH A CO NCLUSION HAS BEEN ARRIVED BY THE AO FOR THE REASON THAT THE PERSON WHO HAD APPLIED FOR AND OBTAINED THE DD AND THE PERSON WHO EXECUTED THE DECLARATION ARE DIFFERENT. 11.1 IT IS NOT NECESSARY THAT THE APPLICANT FOR THE DD HAS TO PERSONALLY GO TO THE BANK OR EVEN HAVE THE APPLICATI ON FOR DD SIGNED BY HIMSELF. THEREFORE, ON THIS SCORE ALONE, ONE CAN NOT CONCLUDE THAT THE GIFT IS NOT GENUINE. APART FROM THAT, A PHOTOC OPY OF THE INSTRUMENT ITSELF WAS FILED BEFORE THE AO. THE AO HAS NOT DISPROVED THAT THE DECLARATION IS NOT GENUINE. HE OUGHT TO H AVE ATLEAST WRITTEN A LETTER TO THE DECLARANT. THE DECLARATION OF THE DONOR HAS BEEN REJECTED BY THE AO WITHOUT PUTTING IT TO TEST BUT HA S REJECTED IT ONLY ON THE GROUND THAT IT HAS BEEN EXECUTED ON A PLAIN PAPER. THEREFORE, WE ARE OF THE VIEW THAT THE CIT(A) IS JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO. IT IS ORDERED ACCORDINGLY. 11.2 WITH REFERENCE TO THE OTHER CREDITS IN THE BA NK ACCOUNT, THE AO IS NOT RIGHT IN STATING THAT NO DETAILS OF D D/CHEQUES ARE PROVIDED BY THE ASSESSEE. NO DOUBT THE DECLARATION SUBMITTED BY THE DONORS DOES NOT CONTAIN THE DETAILS OF DD/CHEQUE (E XCEPT FOR DECLARATION OF WILLIAM LOW AND VICTOR NG). HOWEVER , AT A LATER STAGE, THE ASSESSEE DID PROVIDE THE DETAILS OF THE DD/CHEQ UE RECEIVED BY PAGE 9 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 9 HIM AND THE SAME IS NOTED BY THE AO (LAST PARA OF PA GE 9 OF ASSESSMENT ORDER). IT IS A FACT ADMITTED BY THE AO THAT MONEY HAS BEEN RECEIVED BY THE ASSESSEE THROUGH BANKING CHANNE LS FROM A FOREIGN ACCOUNT. IN ALMOST ALL ITEMS OF GIFTS, THE AO ACCEPTED THAT THE AMOUNTS WERE RECEIVED IN FOREIGN CURRENCY. IF T HE AO HAD ANY DOUBT AS TO WHETHER THOSE AMOUNTS HAD IN FACT HAS B EEN RECEIVED FROM FOREIGN ACCOUNTS, HE COULD HAVE VERIFIED FROM THE LOCAL BANK NAMELY VIJAYA BANK, MYSORE. THE FACT THAT THE DECLARA TIONS ARE IN A COMMON FORMAT IS INCONSEQUENTIAL, AS THE ASSESSEE H AD OBTAINED THE CONFIRMATION AFTER SUCH A DIRECTION FROM THE AO. T HE FACT THAT THE DONORS WERE NOT PRODUCED BEFORE THE AO, ACCORDING T O US, IS ALSO INCONSEQUENTIAL, SINCE THE AIRFARE WOULD HAVE EXCEE DED THE AMOUNT OF GIFTS MADE TO THE ASSESSEE. THE AO HAS STATED THAT THE ASSESSEE COULD HAVE HIMSELF DEPOSITED THE AMOUNT IN THE BANK AND TAKEN OUT THE DD HIMSELF. THIS ALLEGATION OF THE AO IS NOT BACKE D BY ANY EVIDENCE EITHER DIRECT OR CIRCUMSTANTIAL. AS POINTED OUT BY THE CIT(A), THERE IS NO CASE FOR VIOLATION OF THE PROVISIONS OF THE F OREIGN EXCHANGE MANAGEMENT ACT PENDING AGAINST THE ASSESSEE. THERE FORE, THERE CANNOT BE ANY PRESUMPTION IN FAVOUR OF ILLEGALITY OF A TRANSACTION. 11.3 IN THE CASE OF CIT V P MOHANAKALA & OTHERS 291 ITR 278 (SC), THE FACTS ARE AS UNDER:- THE AUTHORITIES BELOW FOUND THAT NRI GIFTS AMOUNT ING TO RS.1.79 CRORES WERE NOT REAL. THIS CONCURRENT FIND ING OF FACT WAS DISTURBED BY THE HIGH COURT. AN AMOUNT OF RS.1.79 C RORE WAS RECEIVED PAGE 10 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 10 BY THE ASSESSEE AND HIS FAMILY MEMBERS FROM ONE SINGL E DONOR BY NAME SAMPATH KUMAR. GIFTS WERE, IN FACT, FROM PERS ONS OF THE NAME ARIAVAN THOTAN AND SUPROTOMAN. IT WAS DURING THE I NQUIRY BY THE REVENUE THAT IT WAS ASCERTAINED THAT ARIVAN THOTAN AND SUPROTOMAN ARE ALIAS OF SAMPATHKUMAR. TO ILLUSTRATE FURTHER, WITH RESPECTS, WE REPRODUCE THE RELEVANT PORTION OF THE OBSERVATIONS OF THE HONBLE APEX COURT AS UNDER:- .THE AO AFTER AN ELABORATE CONSIDERATION OF THE MATERIAL AVAILABLE ON RECORD AND THE STATEMENTS OF THE ASSESSEES AND AS WELL AS THAT OF SAMPATHKUMAR NOTED THAT ALL THE GIFTS WERE RECEIVED FROM ARIVAN THOTAN AND SUPROTOMAN. IT IS ONLY AFTER THE ENQUIRIES BY THE DEPARTMENT, IT WAS INFORMED BY LETTER DATED 25 TH APRIL, 1996 THAT ARIVAN THOTAN AND SUPROTOMAN ARE ONE AND THE SAME PERSON. EVEN AT THAT TIME, NO MENTION WAS MADE ABOUT SAMPATHKUMAR. FOR THE FIRST TIME, SAMPATHKUMARS NAME FIGURED IN THE LETTER DATED 30 TH AUGUST, 1996 AND THEREAFTER IT WAS STATED THAT THE NAMES OF ARIVAN THOTAN AND SUPROTOMAN ARE THE OTHER NAMES OF SAMPATHKUMAR. THE AO WHILE APPRECIATING THE CONTENTS OF THE LETTERS BROUGHT ON RECORD CAME TO THE CONCLUSION THAT SAMPATHKUMAR HAD OBLIGED IN GIVING GIFTS TO SRINIVASAN AND THE FAMILY MEMBERS. IT IS FURTHER HELD THAT IN ALL PROBABILITIES SAMPATHKUMAR MAY HAVE RECEIVED COMPENSATORY PAYMENTS IN LIEU OF THE GIFTS MADE BY HIM. THE LETTERS ACCORDING TO THE AO SUGGEST THAT SAMPATHKUMAR RESERVED HIS RIGHT TO RECEIVE SUITABLE COMPENSATION FROM THE RESPONDENTS-ASSESSEES. THE AO IN THE CIRCUMSTANCES CAME TO THE CONCLUSION THAT THE GIFTS THOUGH APPARENT ARE NOT REAL AND ACCORDINGLY PAGE 11 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 11 TREATED ALL THESE AMOUNTS CREDITED IN THE BOOKS OF ASSESSEES AS THE INCOME OF THE ASSESSEES. 5. ON APPEAL, THE CIT(A) CONCLUDED THAT THE STORY SET UP BY THE ASSESSEES IS UNACCEPTABLE AND HARD TO BELIEVE AND THE PREPONDERANCE OF PROBABILITIES, THE COMMON COURSE OF HUMAN LIVINGS POINT TO THE CONTRARY. THE APPEALS WERE ACCORDINGLY DISMISSED. WITH DUE RESPECTS, WE ARE OF THE CONSIDERED VIEW TH AT THE FINDING OF THE HONBLE APEX COURT REFERRED SUPRA, IS DISTINGUI SHABLE AS I) THERE WAS MATERIAL INCONSISTENCIES IN STATEMENTS RECORDED FROM THE ASSESSEES IN THAT CASE; II) NO SUCH MATERIAL INCONSISTENCY WAS BROUGHT ON RECORD IN THE CASE ON HAND. III) IN THE INSTANT CASE, SPECIFIC DETAILS, SUCH AS, CHEQUE/DD NUMBER, THE DATE OF CHEQUE/DD, THE DATE OF RECEIPT OF CHEQUE/DD AND THE NAME OF THE BANK FROM WHICH THE CHEQUE/DD WAS ISSUED FAVOURING THE ASSESSEE, WERE FURNISHED BY THE ASSESSEE. 11.4 THE LEARNED DRS PLEA THAT THE MATTER SHOULD BE REMITTED BACK FOR FRESH EXAMINATION ALSO DOES NO T IMPRESS US, SINCE AT THIS DISTANCE OF TIME; MANY OF THE DONO RS WOULD HAVE SHIFTED THEIR RESIDENCES AND WOULD BE PRACTICALLY IM POSSIBLE FOR THE ASSESSEE TO GET CONFIRMATION AGAIN FROM THESE DONOR S. AT THE ASSESSMENT STAGE ITSELF, WHATEVER POSSIBLE DETAILS THAT COULD BE PAGE 12 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 12 PROVIDED BY THE ASSESSEE, WERE PROVIDED AND IF THE A O HAD ANY DOUBTS IN THE SAME, COULD HAVE EASILY VERIFIED THE GENUINEN ESS BY MAKING NECESSARY ENQUIRIES AT THAT POINT OF TIME. FOR TH ESE REASONS, WE UPHOLD THE ORDER OF THE CIT(A) AND DISMISS THE GROU NDS OF THE REVENUE. C.O.NO.38/BANG/2010 12. THE EFFECTIVE GROUNDS RAISED IN THE CROSS OBJE CTION ARE AS UNDER:- I) DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE RESPONDENT HAS FURNISHED LIST OF PERSONS FROM WHOM GIFT HAS BEEN RECEIVED IN THE FORM OF GURUPADAKANIKA AND MOST OF THE DONORS WERE NON RESIDENTS AND SUCH GIFTS WERE RECEIVED THROUGH BANKING CHANNELS. II) THE APPELLANT FAILED TO APPRECIATE THAT THE RESPONDENT HAS FURNISHED DECLARATIONS FROM ALL THE DONORS THUS THE DONORS EXISTS AND THEY HAVE ACTUALLY GIVEN GIFT IN THE FORM OF MONEY. III) THE LEARNED CIT(A) IN ORDER IN ITA NO.10/W - 2(3)/A-I/07-08 DATED 20.01.2010 HAS HELD THAT THE ACTION OF AO IN TREATING THE GIFT AS UNDISCLOSED INCOME OF THE ASSESSEE IS NOT JUSTIFIED . 12.1 SINCE APPEAL OF THE REVENUE HAS BEEN DISMISSE D AND THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, T HE CROSS OBJECTION RAISED, WHICH IS ONLY SUPPORTING THE ORDER OF THE CI T(A), HAS BECOME ACADEMIC AND THE SAME IS DISMISSED AS INFRUCTUOUS. PAGE 13 OF 13 ITA NO.567/BANG/2010 & C.O.N O.38/BANG/2010 13 13. IN THE RESULT, THE APPEAL FILED BY THE REVENUE AND THE CROSS OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED ON FRIDAY, THE 11 TH DAY OF FEBRUARY, 2011 AT BANGALORE. SD/- SD/- (A MOHAN ALANKAMONY) (GEORGE GEORGE K) ACCOUNTANT MEMBER JUDICIAL MEMB ER COPY TO :- 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT(A) CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR 6. GF BY ORDER MSP/10.2. ASSISTANT REGISTRAR, ITAT, BANGALORE.