Shri Prem Prakash Choudhary, New Delhi V. DCIT, New Delhi

ITA 671/DEL/2009

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86586 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 23-12-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 23-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ASHWANI TAJENA
• Keywords: Unexplained cash credit; Gift; Principle of natural justice; Additional evidence; Onus to prove
• Section: 153A; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F , NEW DELHI) BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.671 /DEL/2009 ASSESSMENT YEAR : 2002-03 SHRI PREM PRAKASH CHAUDHARY, VS. DCIT, CC-23, B-178, EAST OF KAILASH, NEW DELHI NEW DELHI GIR / PAN:ADHPC7018G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI TAJENA, CA RESPONDENT BY : SHRI PIYUSH JAIN, CIT DR ORDER PER T.S. KAPOOR, AM: THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE OR DER OF LD. CIT(A) DATED 31.12.2008. THE ASSESSEE HAS TAKEN 8 GROUNDS OF APPEAL AGAINST AN ADDITION SUSTAINED BY LD. CIT(A) WITH RESPECT TO AL LEGED GIFT OF RS.25 LACS RECEIVED BY ASSESSEE. THE ASSESSEE THOUGH HAS TAKE N LEGAL GROUND ALSO BUT DURING ARGUMENTS, LD. A.R. LAID HIS EMPHASIS ON GR OUND NO..2 AND REQUESTED THE BENCH TO REMIT BACK THE CASE TO OFFIC E OF A.O. OR CIT(A) AS THE CASE MAY BE IN VIEW OF THE FACT THAT NECESSARY OPP ORTUNITY OF CROSS EXAMINATION TO ASSESSEE WAS NOT PROVIDED BY A.O. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAD RECEIVED A GIFT OF RS.25 LACS FROM SHRI ANIL KUMAR GUPTA IN THE FORM O F TWO CHEQUES OF RS.12.50 LACS EACH. DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS 2 ITA NO.671/DEL/2009 REQUIRED TO PROVE GENUINENESS AND CREDITWORTHINESS OF GIFT. THE ASSESSEE SUBMITTED THAT GIFTS OF RS.12.50 LACS EACH WERE REC EIVED FROM TWO PERSONS NAMELY SHRI ANIL KUMAR GUPTA AND MRS. SARITA MEHTA AND FILED A COPY OF GIFT DEED OF RS.12.50 LACS EXECUTED BY SHRI ANIL KU MAR GUPTA. THEREFORE, VIDE ORDER SHEET ENTRY DATED 06.12.2007, THE ASSESS EE WAS AGAIN ASKED TO FILE NECESSARY EVIDENCES AND TO PRODUCE DONORS. IN RES PONSE THE ASSESSEE FURNISHED FOLLOWING REPLIES VIDE LETTER DATED 07.12 .2007: THAT AT THIS STAGE, WHILE REGRETTING OUR EARLIER S TATEMENT THAT ONE OF THE TWO GIFTS WERE MADE BY SMT. SARITA MEHTA , WIFE OF SH. ASHISH MEHTA, A-17, LAWRENCE ROAD INDL. AREA, NEW D ELHI; MAY BE TREATED AS AMENDED AS HER NAME WAS INADVERTENTLY ME NTIONED DUE TO SHEER ABSENCE OF MIND, AS BOTH THE GIFTS HAVE BEEN GIVEN BY SH. ANIL KUMAR GUPTA, THE ONLY DONOR. (II) THAT YOUR GOOD SELF HAS ASKED TO PRODUCE THE D ONOR ON 7TH DAY OF DEC. 2007 AT 2.30PM. FOR CERTAIN REASONS THE DO NOR SH. ANIL KUMAR GUPTA IS NOT EXTENDING HIS HAND OF COOPERATIO N FOR THE REASONS BEST KNOWN TO HIM A/ONE, EVEN THOUGH BOTH THE GIFTS ARE BONA FIDE AND GENUINE AND ONE OF THE GIFT DEEDS EXECUTED BY SH. A NIL KUMAR GUPTA ON 20-09- 2001 HAS BEEN FURNISHED BY US WITH OUR LE TTER DATED 15-11- 2007. (III) THAT THE OTHER GIFT DEED EVEN THOUGH, DULY EX ECUTED BY THE DONOR SH. ANIL KUMAR GUPTA HAS UNFORTUNATELY BEEN M ISPLACED AT OUR END AND THEREFORE, WE ARE HANDICAPPED IN THE MATER OF ITS PRODUCTION. HOWEVER LETTER OF CONFIRMATION FROM SH. ANIL KUMARA GUPTA IS ENCLOSED HEREWITH. 3. FROM THE ABOVE REPLY, THE A.O. DOUBTED THE GENUI NENESS OF GIFTS AND HELD THAT HOW A DONE CAN FORGET THE NAME OF DONOR A ND HE FURTHER OBSERVED THAT THERE WAS DIFFERENCE IN SIGNATURES ON GIFT DEE D AND ON CONFIRMATION DATED 07.12.2007. 4. THE DONOR WAS PRODUCED ON 18.12.2007 AND THE A.O . RECORDED STATEMENT OF THE DONOR WHICH IS REPRODUCED IN THE A SSESSMENT ORDER. FROM THE RECORDED STATEMENT, THE A.O. INFERRED AS UNDER: 3 ITA NO.671/DEL/2009 (I) THAT THE DONOR DID NOT KNOW THE NAME OF THE PE RSON TO WHOM GIFTS WERE MADE. ACCORDING TO HIM THE GIFTS WERE MA DE TO M/S RAMA KRISHNA JEWELLERS AND NOT TO THE ASSESSEE. (II) THAT THE DONOR EVEN DOESN'T KNOW THE OWNERS O F M/S RAMA KRISHNA JEWELLERS. IN REPLY TO Q. 12 HE REPLIED THA T PERHAPS MR. PRAVEEN MALHOTRA IS THE OWNER OF M/S RAMA KRISHNA J EWELLERS. (III) THAT THE DONOR OR HIS FAMILY MEMBERS ARE NOT RELATED TO THE FAMILY OF THE ASSESSEE. (IV) THAT THE DONOR HAD DEPOSITED EQUIVALENT AMOUN T OF CASH BEFORE ISSUING THE CORRESPONDING CHEQUES. A COPY OF THE RE LEVANT BANK ACCOUNT NUMBER 01050022536 WITH THE BANK OF BIKANER & JAIPUR, LAWRENCE ROAD, DELHI THE PROPRIETARY CONCERN OF THE DONOR WAS ALSO MADE PART OF THIS ORDER AS ANNEXURE 'B'. (V) THAT THE DONOR IS NOT AWARE OF THE SOURCE OF C ASH DEPOSITED IN THE BANK BEFORE ISSUING CHEQUES. (VI) THAT NEITHER THE DONOR NOR THE DONEE EVER VIS ITED THE RESIDENCE OF EACH OTHER. IN THE LIGHT OF THE ABOVE, IT IS QUITE CLEAR THAT WHEN THE DONOR DOES NOT KNOW ANYTHING ABOUT THE ASSESSEE AND HIS F AMILY, THEN HOW COULD HE MADE A HUGE GIFT OF RS.25,00,000/- AND THA T TOO OUT OF NATURAL LOVE AND AFFECTION. THIS IS A VERY STRANGE AND UNIQUE CASE OF LOVE AND AFFECTION WHERE THE DONOR WITHOUT KNOWING THE DONEE BUT OUT OF NATURAL LOVE AND AFFECTION HAS GIFTED A SUM OF R S.25,00,000/- TO THE DONEE. IN VIEW OF THE ABOVE STATEMENT OF SH. ANIL KUMAR GUPTA (DONOR), THE CREDITWORTHINESS OF THE DONOR TO GIFT SUCH A HUGE AMOUNT AND GENUINENESS OF THE GIFT REMAINED UNEXPLAINED. A S THE ASSESSEE HAS CLAIMED THESE GIFTS AS GENUINE, THE ONUS TO PROVE T HE SAME AS GENUINE LIES UPON THE ASSESSEE, WHICH HE HAS FAILED TO DISC HARGE. IN THE CASE OF GIFTS, VARIOUS COURTS HAVE CONSTANTLY HELD THAT ASSESSEE IS REQUIRED TO PROVE IDENTITY AND CAPACITY OF THE DONOR AND GEN UINENESS OF THE GIFT. IN THIS CASE THERE IS NO RELATIONSHIP BETWEEN THE DONOR AND THE DONEE WHICH MADE SH. ANIL KUMAR GUPTA TO MAKE SUCH HUGE GIFTS TO THE ASSESSEE. CAPACITY AND GENUINENESS OF THE GIFT ALSO REMAINED UNPROVED. THERE WAS ALSO NO OCCASION TO MAKE SUCH G IFT. IN THE PRESENT CASE EVEN THE NAME OF THE DONEE IS NOT KNOW N TO THE DONOR. 4 ITA NO.671/DEL/2009 5. THEREFORE RELYING ON A NUMBER OF CASE LAWS, THE A.O. HELD THAT ASSESSEE WAS NOT ABLE TO PROVE GENUINENESS AND CRED ITWORTHINESS OF GIFT. THEREFORE, HE MADE ADDITION OF THE SAME U/S 68 OF T HE ACT. 6. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A) AND SUBMITTED VARIOUS SUBMISSIONS INCLUDING HIS GRIEVANCE OF NOT GETTING CHANCE TO CROSS EXAMINE THE DONOR. HOWEVER, LD. CIT(A) DID NOT AGR EE WITH THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ADDITION MADE BY A.O. BY HOLDING AS UNDER: FROM THE ABOVE STATEMENT OF THE DONOR, IT IS EVIDE NTLY CLEAR THAT SH. ANIL KUMAR GUPTA HAS NEVER GIVEN ANY GIFTS TO HIS C LOSE RELATIVES INCLUDING BROTHERS AND SISTERS, AS IS EVIDENT FROM HIS ANSWER TO QUESTION NO. 9 OF HIS STATEMENT. WHILE ANSWERING QU ESTION NO. 11, SH. ANIL KUMAR GUPTA STATED THAT HE HAS MADE A GIFT OF RS. 25 LACS TO M/S RAMA KRISHNA JEWELLERS IN THE YEAR 2001 AND HE DID NOT KNOW THE ADDRESS OF M/S RAMA KRISHAN JEWELLERS. FURTHER WHEN HE WAS ASKED TO TELL THE NAME OF THE OWNER OF M/S RAMA KRISHANA JEWELLERS, HE REPLIED THAT HE WAS NOT AWARE. HE RECALLED' THAT TH ERE ARE PERHAPS PRAVEEN MALHOTRA. THE ABOVE STATEMENT OF SH. ANIL K UMAR GUPTA CLEARLY SHOWS THAT SH. ANIL KUMAR GUPTA WAS NOT EVE N AWARE TO WHOM THE GIFT OF RS. 25 LACS WAS MADE. AS PER HIS S TATEMENT HE HAS MADE GIFT OF RS. 25 LACS TO M/S RAMA KRISHNA JEWELL ERS WHOSE OWNER IS PROBABLY PRAVEEN MALHOTRA. THUS, HE HAS NOT CATE GORICALLY STATED THAT THE GIFT WAS GIVEN TO THE APPELLANT SH. PREM P RAKASH CHOUDHARY. THE GIFTS ARE NORMALLY GIVEN OUT OF LOVE AND AFFECT ION. IN THIS CASE, THE EXISTENCE OF LOVE AND AFFECTION BETWEEN DONOR AND D ONEE CAN BE SEEN FROM THE FACT THAT DONOR HAS STATED THAT THE GIFT W AS GIVEN TO M/S RAMA KRISHNA JEWELLERS WHOSE OWNER PERHAPS IS MR. PRAVEE N MALHOTRA. THUS THE DONOR IS NOT EVEN AWARE ABOUT THE EXACT NA ME OF THE DONEE I.E. THE APPELLANT, SH. PREM PRAKASH CHOUDHARY. THU S, THERE IS NO INDICATION OF THE PRESENCE OF LOVE AND AFFECTION BE TWEEN THE DONOR AND THE DONEE. AS POINTED OUT BY THE AO., THE CHEQUES W ERE ISSUED BY THE DONOR FROM THE BANK ACCOUNT IN WHICH AMOUNTS WERE D EPOSITED IN CASH. THOUGH THE APPELLANT SUBMITTED THAT THE CASH WAS DEPOSITED OUT OF WITHDRAWALS OF CASH MADE ON EARLIER DATE FROM TH E SAME BANK ACCOUNT BUT THE APPELLANT HAD NOT ADDUCED ANY EVIDE NCE REGARDING THE PURPOSE FOR WHICH THE EARLIER CASH/AMOUNTS WERE WIT HDRAWN FROM THE 5 ITA NO.671/DEL/2009 BANK AND AS TO WHETHER THE AMOUNTS WERE UTILIZED FO R THAT PURPOSE AND, IF NOT, WHY IDLE CASH WAS KEPT FOR A LONG PERI OD IN HAND. FROM THE DETAILS OF CASH WITHDRAWL AND CASH DEPOSITS, IT IS ALSO NOTED THAT ON 25.08.2001, AN AMOUNT OF RS. 50,000/- WAS DEPOSITED ON BANK. AFTER 25.08.2001, THE APPELLANT HAD WITHDRAWAL ONLY RS. 4 ,85,000/- ON 06.09.2001. BUT BEFORE ISSUING CHEQUES FOR IMPUGNED GIFTS, CASH OF EXACT AMOUNTS OF RS. 12,50,000/- EACH WERE DEPOSITE D ON 12.09.2001 AND 20.09.2001. THUS, THE APPELLANT FAILED TO PROVE CREDITWORTHINESS OF THE DONOR TO GIVE GIFTS OF HUGE AMOUNT OF RS. 25 ,00,000/-. MOREOVER, LOOKING TO THE ASPECT OF HUMAN PROBABILIT IES, SURROUNDING CIRCUMSTANCES, SUCH AS, NO RELATIONSHIP OF THE DONO R WITH DONEE, NO OCCASION OF MAKING GIFT, THE TRANSACTIONS OF GIFTS OF RS. 25 LACS SHOWN BY THE APPELLANT FROM THE DONOR WERE NOT GENUINE. T HEREFORE, THE AO. WAS JUSTIFIED IN TREATING THE CREDIT OF RS. 25 LACS AS UNEXPLAINED CREDIT AND MAKING ADDITION U/S 68 BEING THE APPELLANT'S IN COME FROM UNDISCLOSED SOURCES. HENCE, THE ADDITION OF RS. 25 LACS IS CONFIRMED. 7. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US. 8. AT THE OUTSET, LD. A.R. SUBMITTED THAT LD. CIT(A ) HAS CONFIRMED THE ADDITION ON THE BASIS OF STATEMENT OF SHRI ANIL KUM AR GUPTA, DONOR WHICH WAS RECORDED AT THE BACK OF THE ASSESSEE. ASSESSEE WAS NOT CONFRONTED AND WAS NOT ALLOWED TO CROSS EXAMINE DONOR. HE SUBMITT ED THAT THE STATEMENT WAS RECORDED ON 18.12.2007 AND THE ASSESSMENT ORDER WAS PASSED ON 20.12.2007. THEREFORE, HE ARGUED THAT THE ACTION O F A.O. IN NOT ALLOWING CROSS EXAMINATION OF SHRI ANIL KUMAR GUPTA IS AGAIN ST THE PRINCIPLE OF NATURAL JUSTICE AND, THEREFORE, HE PRAYED THAT THE MATTER MAY BE REMITTED BACK AND THE ASSESSEE BE PROVIDED APPROPRIATE OPPORTUNIT Y TO CROSS EXAMINE THE DONOR. THE LD. A.R. FURTHER SUBMITTED THAT AT THE TIME OF RECORDING STATEMENT THE AR OF THE ASSESSEE WAS MADE TO SIT OU TSIDE AND A.O. RECORDED THE STATEMENT IN THE ABSENCE OF ASSESSEE/AR OF THE ASSESSEE AND THEREFORE, THE STATEMENT WAS GIVEN BY DONOR UNDER STRESS WHICH CANNOT BE RELIED UPON FOR MAKING ADDITION. IN THIS RESPECT, LD. A.R. INV ITED OUR ATTENTION TO THE 6 ITA NO.671/DEL/2009 AFFIDAVIT OF LD. A.R. AND THAT OF THE ASSESSEE PLAC ED AT PAPER BOOK PAGES 62- 65 AND SUBMITTED THAT IN THE AFFIDAVITS, THE ASSESS EE AND HIS COUNSEL HAVE CLEARLY STATED THAT THEY WERE MADE TO SIT OUTSIDE W HEN THE STATEMENT OF SHRI ANIL KUMAR GUPTA WAS BEING RECORDED. LD. A.R. ALSO TOOK US TO PAPER BOOK PAGE 70 WHERE COPY OF STATEMENT OF DONOR WAS PLACED AND SUBMITTED THAT THE DONOR HIMSELF HAD STATED THAT A.O. HAD BEHAVED IN A N ARROGANT MANNER AND HAD INSISTED FOR RECORDING STATEMENT WITHOUT ANY LE GAL OR MORAL AID. CONTINUING HIS ARGUMENTS LD. A.R. SUBMITTED THAT AL L THESE FACTS WERE BROUGHT TO THE NOTICE OF LD. CIT(A) AND IN THIS RE SPECT, INVITED OUR ATTENTION TO WRITTEN STATEMENTS PLACED AT PAPER BOOK PAGES 44 -57. REGARDING MERITS, LD. A.R. SUBMITTED THAT THE CASH WAS WITHDRAWN FROM THE BANK ACCOUNT OF THE FIRM WHEREIN THE DONOR WAS PROPRIETOR AND THERE AFTER, THE SAME WAS DEPOSITED IN THE BANK ACCOUNT FROM WHERE THE GIFT C HEQUES WERE ISSUED AND IN THIS RESPECT, HE INVITED OUR ATTENTION TO PAPER BOOK PAGES 66 WHERE A COPY OF CASH FLOW STATEMENT WAS PLACED. THEREFORE, KEEP ING IN VIEW ALL THESE FACTS AND CIRCUMSTANCES, IT WAS SUBMITTED THAT THE CASE OF THE ASSESSEE NEEDS READJUDICATION. 9. LD. D.R. ON THE OTHER HAND STRONGLY OBJECTED TO THE PRAYER OF LD. A.R. FOR READJUDICATION. HE SUBMITTED THAT INITIALLY TH E ASSESSEE HAD CLAIMED THAT GIFT OF RS.12.50 LACS EACH WAS RECEIVED FROM TWO PE RSONS AND THEREAFTER, HE CHANGED HIS STATEMENT AND SUBMITTED THAT GIFT WAS R ECEIVED FROM ONE PERSON. INVITING OUR ATTENTION TO THE STATEMENT OF THE DONO R RECORDED IN THE ASSESSMENT ORDER, LD. D.R. SUBMITTED THAT THE DONOR WAS NOT ABLE TO RECOLLECT AS TO WHOM THE GIFT WAS MADE THEREFORE, NOW AFTER A PERIOD OF 7 YEARS, HOW HE WILL RECOLLECT ABOUT THE SAME. REGARDING MERITS OF THE CASE, LD. D.R. SUBMITTED THAT CREDITWORTHINESS OF THE DONOR WAS NO T PROVED AS CASH WAS DEPOSITED IMMEDIATELY BEFORE ISSUANCE OF CHEQUES AN D FURTHER, THE DONOR WAS 7 ITA NO.671/DEL/2009 NOT HAVING MEANS AS HE HAD INCURRED LOSSES IN HIS B USINESS. OUR ATTENTION WAS INVITED TO ANSWER TO QUESTION NO.3 WHEREIN SHRI ANIL KUMAR GUPTA HAD STATED THAT HE WAS ENGAGED IN THE EXPORT BUSINESS O F GARMENTS UP TO 2003 AFTER WHICH THE BUSINESS WAS CLOSED DUE TO LOSSES. THEREFORE IT WAS SUBMITTED BY LD. D.R. THAT A PERSON WHO HAD INCURRE D LOSSES, HOW HE COULD MAKE A GIFT AND THAT TOO TO AN UNKNOWN PERSON AND T HAT TOO OF A HUGE AMOUNT OF RS.25 LACS. HE FURTHER SUBMITTED THAT BUSINESS LOSS CANNOT BE SAID TO HAVE OCCURRED IN ONE YEAR AND THEREFORE, LOSSES MUST BE ACCUMULATING FOR A COUPLE OF YEARS AND THAT IS WHY HE WAS FORCED TO CLOSE ITS BUSINESS AND THEREFORE, HE ARGUED THAT GENUINENESS OF GIFT WAS ALSO NOT PROVE D AS A PERSON INCURRING LOSSES CANNOT BE EXPECTED TO MAKE GIFTS AND THAT TO O TO UNKNOWN PERSONS. INVITING OUR ATTENTION TO ANSWER TO QUESTION NO.11, LD. D.R. SUBMITTED THAT GIFT IS ALWAYS MADE OUT OF NATURAL LOVE AND AFFECTI ON AND HOW IT IS POSSIBLE THAT A PERSON MAKING GIFT DID NOT KNOW THE ADDRESS OF THE DONEE. MOREOVER IT WAS SUBMITTED THAT THE ASSESSEE HAD NOT MADE ANY GIFT TO ANY OF HIS RELATIVES AS PER HIS ANSWER TO QUESTION NO.9 THEREF ORE HOW IT IS POSSIBLE THAT A GIFT WAS MADE TO AN UNKNOWN PERSON. HE SUBMITTED THAT EVEN IF THE CASE IS REMITTED BACK, IT WILL NOT SERVE ANY USEFUL PURPOSE AS LD. CIT(A) HAS ALSO DECIDED THE ISSUE ON MERITS. 10. LD. A.R. IN HIS REJOINDER SUBMITTED THAT THE AS SESSMENT WAS COMPLETED U/S 153A AND THERE WAS CERTAIN CONFUSION ABOUT NAME S OF DONORS THEREFORE NAMES WERE WRONGLY SUBMITTED INITIALLY BUT THE SAME WERE IMMEDIATELY RECTIFIED. HE SUBMITTED THAT IN THE BANK ACCOUNT O F PROPRIETORSHIP FIRM OF DONOR, THERE ARE ENTRIES OF BOTH CHEQUES AND CASH W HICH ITSELF INDICATES THAT THE DONOR HAD GOOD BUSINESS AND, THEREFORE, CREDITW ORTHINESS OF DONOR CANNOT BE DOUBTED. AS REGARDS RELATIONSHIP OF DONO R AND DONEE, LD. A.R. SUBMITTED THAT DONOR HAPPENS TO BE IN BLOOD RELATIO N WITH BROTHERS WIFE OF 8 ITA NO.671/DEL/2009 ASSESSEE AND IN THIS RESPECT, INVITED OUR ATTENTION TO PAPER BOOK PAGE 58 WHERE THIS FACT WAS COMMUNICATED TO LD. CIT(A) VIDE LETTER DATED 23.12.2008 AND THEREFORE, IT WAS SUBMITTED THAT GIF T WAS NOT TO UNKNOWN PERSON AND BEFORE MAKING GIFTS ASSESSEE HAD SUFFICI ENT CREDITWORTHINESS AS THE ENTRIES IN BANK ACCOUNT INDICATES. WITHOUT PRE JUDICE TO THE ABOVE ARGUMENTS, LD. A.R. SUBMITTED THAT THERE WERE OTHER ISSUES ALSO IN THIS CASE ONE OF WHICH RELATES TO THE FACT THAT THE ASSESSMEN T WAS COMPLETED U/S 153A AND ADDITION WAS NOT BASED ON ANY INCRIMINATING MAT ERIAL AND THEREFORE, ASSESSMENT ITSELF WAS NOT LEGAL. HOWEVER FOR THE S AKE OF FAIR JUSTICE, HE WAS ONLY ASKING FOR REMANDING BACK OF HIS CASE. LD. A. R. PLACED HIS RELIANCE ON A NUMBER OF CASE LAWS WHICH WERE RELIED UPON BEFORE LD. CIT(A) ALSO AS PLACED IN PAPER BOOK PAGES 44-57. 11. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROU GH THE MATERIAL PLACED ON RECORD. WE FIND THAT INITIALLY, DURING ASSESSMEN T PROCEEDINGS, THE ASSESSEE HAD SUBMITTED THAT GIFT OF RS.25 LACS WERE RECEIVED FROM TWO PERSONS NAMELY SHRI ANIL KUMAR GUPTA, R/O EAST PUNJABI BAGH AND SM T. SARITA MEHTA, RESIDENT OF LAURENCE ROAD, NEW DELHI. DURING FURTH ER ASSESSMENT PROCEEDINGS, THE ASSESSEE VIDE LETTER DATED 07.12.2 007, CHANGED HIS STATEMENT AND SUBMITTED THAT GIFT WERE NOT RECEIVED FROM M/S. SARITA MEHTA AND TWO GIFTS WERE RECEIVED FROM SHRI ANIL KUMAR GU PTA ONLY. DURING ASSESSMENT PROCEEDINGS, THE A.O. RECORDED THE STATE MENT OF DONOR A PART OF WHICH FINDS MENTION IN ASSESSMENT ORDER AND AFTER R ECORDING THE STATEMENT, THE A.O. FOUND THAT GIFT WAS NOT GENUINE AND MOREOV ER, HE HELD THAT CREDITWORTHINESS OF DONOR WAS ALSO NOT PROVED. SIM ILAR VIEW WAS TAKEN BY LD. CIT(A). REGARDING PRAYER OF LD. A.R. THAT THE CASE BE REMANDED BACK TO A.O. AND WE OBSERVE THAT SAME PRAYER WAS ALSO MA DE BEFORE LD. CIT(A) BUT LD. CIT(A) HAS REJECTED THE SAME ON THE BASIS THAT THE ASSESSEE COULD 9 ITA NO.671/DEL/2009 HAVE REQUESTED THE A.O. ON THE DATE OF RECORDING OF STATEMENT ITSELF FOR CROSS EXAMINATION BUT HE DID NOT DO SO AND HE FURTHER HEL D THAT AFFIDAVITS OF COUNSEL AND ASSESSEE AND THE DONOR WERE SELF SERVI NG DOCUMENTS. HE FURTHER HELD THAT AS PER ORDER SHEET ENTRY DATED 18 .12.2007, THE STATEMENT WAS RECORDED IN THE PRESENCE OF COUNSEL OF THE ASSESSEE AND THEREFORE, THERE WAS NO GRIEVANCE TO THE ASSESSEE. BESIDES ABOVE FINDIN GS THE LD. CIT(A) HAS ALSO DECIDED THE ISSUE ON MERITS AND HAS HELD THAT GENUINENESS OF TRANSACTION AND CREDITWORTHINESS OF DONOR WAS NOT PROVED. FROM THE ABOVE FACTS AND CIRCUMSTANCES, WE FIND THAT EVEN IF THE PRAYER OF L D. A.R. IS ACCEPTED FOR READJUDICATION, NO FRUITFUL PURPOSE WILL BE SERVED AS ALREADY A PERIOD OF MORE THAN 12 YEARS HAS PASSED AFTER GIVING THE SO CALLED GIFT AND IT IS NOT POSSIBLE THAT DONOR WILL RECOLLECT ALL THINGS WHICH HE HAD N OT BEEN ABLE TO ANSWER AFTER A PERIOD OF 6 YEARS FROM THE DATE OF MAKING G IFTS. FURTHER, WE FIND THAT LD. A.R. DURING PROCEEDINGS BEFORE LOWER AUTHORITIE S OR BEFORE US COULD NOT BRING TO OUR NOTICE ANY OTHER ADDITIONAL EVIDENCE O THER THAN ALREADY ON RECORD BY WHICH HE WOULD BE ABLE TO PROVE GENUINENE SS AND CREDITWORTHINESS OF DONOR. WE FIND FROM THE DOCUMENTS ON RECORD C REDITWORTHINESS OF DONOR AND GENUINENESS OF GIFT IS NOT PROVED BECAUSE OF TH E FOLLOWING FACTS: I) THE ASSESSEE HAD NO DIRECT RELATIONSHIP WITH THE DONOR AND IN THE ABSENCE OF ANY DIRECT RELATIONSHIP, NATURAL LOVE AN D AFFECTION BETWEEN THE DONOR AND DONEE WAS NOT ESTABLISHED AND NEITHER ANY PROOF WAS FILED BEFORE THE AUTHORITIES BELOW OR BEFORE US TO SUBSTANTIATE THAT PARTIES HAD EXTRAORDINARY RELATIONSHIP. II) THE DONOR HIMSELF HAS STATED THAT HE HAD BEEN I NTO EXPORT BUSINESS UP TO 2003 WHICH WAS CLOSED DUE TO LOSSES. WE ARE AWA RE THAT A BUSINESS IS CLOSED ONLY AFTER CONSISTENT LOSSES IN VARIOUS YEAR S AND THEREFORE, A PERSON 10 ITA NO.671/DEL/2009 WHO HAD INCURRED LOSSES CANNOT BE EXPECTED TO GIVE A GIFT TO AN UNKNOWN PERSON AND THAT TOO OF A HUGE AMOUNT OF RS.25 LACS. III) THE DONOR HAD NOT GIVEN ANY GIFT TO HIS CLOSE RELATIVES INCLUDING HIS BROTHERS, SISTERS ETC. AS IS EVIDENT FORM ANSWER TO QUESTION NO.9 OF THE STATEMENT. IV) CHEQUES OF GIFT WERE ISSUED AGAINST CASH DEPOSI TED IN THE BANK ACCOUNT AND THE CASH WAS STATED TO BE LYING AT HOME WHICH IS AGAIN AGAINST HUMAN PROBABILITIES. V) AGAINST ANSWER TO QUESTION NO.17, THE DONOR HAD STATED THAT CASH WAS DEPOSITED OUT OF CASH LYING AT HOME AND HE HAD SUBM ITTED THAT HE DOES NOT REMEMBER THE SOURCE OF THE SAID CASH. 12. LD. CIT(A) HAS PASSED A WELL REASONED AND SPEAK ING ORDER WHEREIN WE DO NOT FIND ANY INFIRMITY AND THEREFORE, WE UPHO LD THE ORDER OF LD. CIT(A). 13. IN VIEW OF THE ABOVE, APPEAL FILED BY ASSESSEE IS DISMISSED. 14. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH JAN., 2015. SD./- SD./- (GEORGE GEORGE K.) (T.S. KA POOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 09.01.2015 SP COPY FORWARDED TO:- THE APPELLANT THE RESPONDENT THE CIT THE CIT (A)-, NEW DELHI. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). 11 ITA NO.671/DEL/2009 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 6/1 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 7,8,8, SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER