Dr. Vempala Bala Manohar, Visakhapatnam V. THE ITO, Visakhapatnam

ITA 8/VIZ/2015

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9951 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 05-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K SETHI
• Keywords: Unexplained cash credit; Gift; Bonafide belief; Source of fund; Deemed to accrue or arise in india; Application of stay; Question of law; Onus to prove; Revised return
• Section: 142(1); 133A; 260A; 131; 68; 148

Judgement Text

ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NOS.6, 8 & 10/VIZAG/2015 ( / ASSESSMENT YEARS: 2009-10, 2010-11 & 2011-12 RESPECTIVELY) DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM VS. ITO, WARD - 1(3), VISAKHAPATNAM [PAN: AAVPM 1093M ] ( / APPELLANT) ( / RESPONDENT) ./I.T.A.NOS.39/VIZAG/2015 ( / ASSESSMENT YEAR: 2011-12) ITO, WARD - 1 (3), VISAKHAPATNAM VS. DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) S.P. NOS.38,40&42/VIZAG/2015 (ARISING OUT OF I.T.A.NOS.6, 8 & 10/VIZAG/2015) ( / ASSESSMENT YEARS: 2009-10, 2010-11 & 2011-12 RESPECTIVELY) DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM VS. ITO, WARD - 1(3), VISAKHAPATNAM ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI M.K. SETHI, DR / DATE OF HEARING : 22.07.2016 / DATE OF PRONOUNCEMENT : 12.08.2016 ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 2 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THESE CROSS APPEALS FILED BY THE ASSESSEE, AS WELL AS REVENUE ARE DIRECTED AGAINST COMMON ORDER PASSED BY THE CIT(A), VISAKHAPATNAM DATED 13.11.2014 FOR THE ASSESSMENT YEAR 2009-10, 2 010-11 & 2011-12. SINCE, THE FACTS ARE IDENTICAL AND ISSUES ARE COMMO N, THEY ARE HEARD TOGETHER AND DISPOSED OFF, BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE IS A PHYSICIAN, DERIVING INCOME FROM RUNNING HOSPITAL, DIAGNOSTIC C ENTRE VIZ., CHANDANA HOSPITAL, SIDDHARTHA MEDICAL CENTRE AND ALAKANANDA SONO SCAN, FILED RETURN OF INCOME FOR THE ASSESSMENT YEARS 2009-10, 2010-11 & 2011-12 ON 29.3.2010, 25.2.2011 & 17.2.2012 DISCLOSING TOTA L INCOME OF RS.3,28,544/-, RS.4,01,691/- & RS.6,03,632/- RESPEC TIVELY. A SURVEY OPERATION U/S 133A OF THE INCOME TAX ACT, 1961 (HER EINAFTER CALLED AS THE ACT) WAS CONDUCTED IN THE BUSINESS PREMISES O F THE ASSESSEE ON 6.7.2012. DURING THE COURSE OF SURVEY OPERATION, CE RTAIN INCRIMINATING DOCUMENTS WERE IMPOUNDED WHICH REVEALED SUPPRESSION OF PROFESSIONAL RECEIPTS. THE POST SURVEY INVESTIGATION REVEALS THA T DURING LAST 3 FINANCIAL YEARS, THE ASSESSEE HAS MADE SUBSTANTIAL INVESTMENTS IN ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 3 VARIOUS FIRMS IN THE FORM OF SHARE CAPITAL AND LOAN S TO THE EXTENT OF RS.1,05,50,000/- AND THE SOURCES FOR THE INVESTMENT S IN THE SAID FIRMS WERE CLAIMED TO BE OUT OF GIFTS RECEIVED FROM HIS B ROTHER TO THE TUNE OF RS.1,02,07,400/- DURING THE SUBJECT YEARS AND ALSO OUT OF HIS PAST SAVINGS FOR THE RELEVANT FINANCIAL YEARS. DURING T HE COURSE OF SURVEY OPERATION, WHILE RECORDING STATEMENT U/S 131 OF THE ACT, THE ASSESSEE HAD ADMITTED ADDITIONAL INCOME OF RS.14 LAKHS EACH FOR THE ASSESSMENT YEARS 2010-11 & 2011-12. SUBSEQUENTLY, THE ASSESSIN G OFFICER ISSUED NOTICE U/S 148 OF THE ACT, IN RESPONSE TO WHICH THE ASSESSEE HAS FILED REVISED RETURN OF INCOME FOR THE ASSESSMENT YEARS 2 010-11 & 2011-12 ADMITTING ADDITIONAL INCOME OF RS.14 LAKHS EACH OFF ERED DURING THE COURSE OF SURVEY OPERATION. THE CASE HAS BEEN SELE CTED FOR SCRUTINY AND ACCORDINGLY NOTICE U/S 143(2) & 142(1) OF THE ACT W ERE ISSUED. IN RESPONSE TO NOTICES, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED DETAILS CA LLED FOR. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ISSUED A SHOW CAUSE NOTICE AND ASKED TO EXP LAIN GIFTS RECEIVED FROM HIS BROTHER WITH NECESSARY EVIDENCES. IN RESPO NSE, THE ASSESSEE HAS FILED DETAILS OF GIFTS RECEIVED FROM HIS BROTHE R FOR LAST 3 FINANCIAL YEARS ALONG WITH BANK STATEMENTS OF DONOR, HIS SOUR CE OF INCOME AND ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 4 ALSO PROOF OF TRANSFER OF MONEY THROUGH BANKING CHA NNELS, HOWEVER, FAILED TO FURNISH GIFT DEEDS AS REQUIRED BY THE ASS ESSING OFFICER. THE A.O. AFTER CONSIDERING THE DETAILS FURNISHED BY THE ASSESSEE HELD THAT THE ASSESSEE HAS FAILED TO PROVE THE GENUINENESS OF ALL EGED GIFTS STATED TO BE RECEIVED FROM HIS BROTHER AND ALSO FAILED TO PRO VE THE CAPACITY OF THE DONOR TO GIVE SUCH HUGE GIFTS. THE A.O. FURTHER HEL D THAT THOUGH ASSESSEE FURNISHED PROOF OF TRANSFER OF MONEY THROU GH BANKING CHANNEL, FAILED TO PROVE THE SOURCES OF ALLEGED GIFT IN THE HANDS OF THE DONOR. THE A.O. FURTHER OBSERVED THAT THERE IS NO OCCASION FOR THE DONOR TO GIVE GIFT TO HIS BROTHER AND ALSO THE GIFTS HAVE BEEN GIVEN P ERIODICALLY ACCORDING TO THE NECESSITY OF THE ASSESSEE, THEREFORE, OPINED THAT THE ALLEGED GIFTS STATED TO BE RECEIVED FROM HIS BROTHER ARE UNEXPLAI NED CREDITS. WITH THESE OBSERVATIONS, MADE ADDITIONS OF RS.15 LAKHS, FOR THE ASSESSMENT YEARS 2009-10, RS.22,90,000/- FOR THE ASSESSMENT YE AR 2010-11, RS.64,17,900/- FOR THE ASSESSMENT YEAR 2011-12. 4. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), THE A SSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE A.O. THE ASSESSEE FURTHER SUBMITTED THAT THE A.O. WAS NOT CORRECT IN MAKING ADDITIONS T OWARDS GIFTS RECEIVED FROM HIS BROTHER AS UNEXPLAINED CREDITS, INSPITE OF FURNISHING NECESSARY ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 5 DETAILS SUCH AS BANK STATEMENTS OF THE DONOR, SOURC ES OF THE DONOR AND ALSO PROOF OF TRANSFER OF MONEY THROUGH BANKING CHA NNEL. THE ASSESSEE FURTHER SUBMITTED THAT THE A.O. HAS SUMMONED THE DO NOR U/S 131 OF THE ACT AND THE DONOR HAS PERSONALLY APPEARED BEFORE TH E A.O. AND STATED THAT HE HAD GIVEN GIFTS OF RS.1,02,07,400/- TO HIS BROTHER FOR LAST 3 FINANCIAL YEARS. THE DONOR ALSO FURNISHED DETAILS O F HIS BANK ACCOUNT, PROOF OF HIS SOURCES OF INCOME TO SUBSTANTIATE THE CAPACITY TO GIVE GIFTS AND ALSO PROOF OF TRANSFER OF MONEY THROUGH MONEY E XCHANGE. INSPITE OF PRODUCING ALL THE DETAILS, THE A.O. DISOWNED ALL DE TAILS FURNISHED BY THE ASSESSEE AND MADE ADDITIONS TOWARDS GIFTS AS UNEXPL AINED. 5. THE CIT(A) AFTER CONSIDERING THE RELEVANT SUBMIS SIONS OF THE ASSESSEE, CONFIRMED THE ADDITIONS MADE BY THE A.O. TOWARDS ALLEGED GIFTS FOR THE ASSESSMENT YEAR 2009-10 & 2010-11, HO WEVER ALLOWED PARTIAL RELIEF OF RS.20 LAKHS FOR THE ASSESSMENT YE AR 2011-12 AND CONFIRMED THE BALANCE AMOUNT OF RS.44,17,400/-. THE CIT(A) FURTHER HELD THAT THE ASSESSEE HAS FAILED TO CORRELATE ALLE GED GIFTS STATED TO BE RECEIVED FROM HIS BROTHER SRI V. BALA SUDHAKAR WITH NECESSARY EVIDENCES. THE CIT(A) FURTHER HELD THAT FOR THE ASSESSMENT YEA R 2009-10, ON VERIFICATION OF BANK STATEMENT FILED BY THE ASSESSE E SHOWS THAT THE CREDITS REPRESENTS CLEARING OF LOCAL CHEQUES. THE ASSESSEE HAS FAILED TO ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 6 CORRELATE CREDIT ENTRIES IN THE BANK ACCOUNT WITH N ECESSARY TT VOUCHERS AND ALSO SOURCES OF THE GIFTS FROM HIS BROTHER FROM HIS BANK ACCOUNT. SIMILARLY, AS REGARDS ASSESSMENT YEAR 2010-11, THE CIT(A) HELD THAT ALL CREDITS APPEARING IN THE HDFC BANK ACCOUNT OF THE A SSESSEE ARE LOCAL CLEARING CHEQUES AND THE ASSESSEE HAS FAILED TO COR RELATE TRANSFER OF MONEY FROM HIS BROTHERS FOREIGN BANK ACCOUNT TO IN DIAN BANK ACCOUNT OR DIRECTLY TO ASSESSEES BANK ACCOUNT BY WAY OF RE MITTANCE OF FOREIGN CURRENCY. AS REGARDS ASSESSMENT YEAR 2011-12, THE CIT(A) HELD THAT ON CAREFUL CONSIDERATION OF BANK STATEMENT FILED BY TH E ASSESSEE, IT WOULD SHOW THAT CREDITS APPEARING IN THE BANK ACCOUNT OF THE ASSESSEE ON 12.11.2010, 18.11.2010, 22.11.2010, 2.2.2011 & 3.2. 2011, REPRESENTS CLEARING OF LOCAL CHEQUE DEPOSITS AND THE ASSESSEE COULD NOT EXPLAIN THESE CREDITS WITH ANY TRANSFER VOUCHERS TO SHOW TH AT MONEY WAS TRANSFERRED FROM ABROAD TO MAKE THESE DEPOSITS. WI TH REGARD TO CREDITS ON 12.11.2010, 18.11.2010, 22.11.2010 AGGREGATING R S.18,00,789/-, IT IS SEEN THAT THE ASSESSEE IS ABLE TO LINK THE CREDITS WITH TRANSFER VOUCHERS, WHICH SHOWS TRANSFER OF MONEY BY HIS BROTHER SHRI V . BALA SUDHAKAR TO ASSESSEES ACCOUNT. SIMILARLY, THE ASSESSEE IS ABL E TO CORRELATE AND LINK FOR THE DEPOSITS MADE ON 2.2.2011 AND 3.2.2011 AGGR EGATING TO RS.20 LAKHS. THE CIT(A) FURTHER OBSERVED THAT THOUGH ASSE SSEE IS ABLE TO CORRELATE AND LINK THE CREDITS IN THE ASSESEES BAN K ACCOUNT WITH ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 7 NECESSARY TRANSFER VOUCHERS FROM HIS BROTHER ACCOUN T, THE ASSESSEE IS NOT ABLE TO PROVE THE CAPACITY OF THE DONOR TO THE EXTENT OF RS.18,00,789/-. HOWEVER, WITH REGARD TO AGGREGATE A MOUNT OF RS.20 LAKHS, THE ASSESSEE CLAIMS THAT HIS BROTHER HAS BOR ROWED A SUM OF 1,69,700 RIYALS WHICH IS THE SOURCE FOR TRANSFER OF MONEY TO HIS BROTHER IS ACCEPTABLE. WITH THESE OBSERVATIONS, CONFIRMED T HE ADDITIONS MADE BY THE A.O. TOWARDS ALLEGED GIFTS FOR THE ASSESSMENT Y EAR 2009-10 & 2010- 11. AS REGARDS ASSESSMENT YEAR 2011-12, OUT OF TOTA L GIFTS OF RS.64,17,900/-, DELETED GIFTS TO THE EXTENT OF RS. 20 LAKHS AND BALANCE AMOUNT OF RS.44,17,420/- HAS BEEN CONFIRMED. AGGRI EVED BY THE CIT(A) ORDER, THE ASSESSEE AS WELL AS REVENUE ARE IN APPEA L BEFORE US. 6. THE LD. A.R. FOR THE ASSESSEE, SUBMITTED THAT TH E CIT(A) WAS ERRED IN CONFIRMING THE ADDITIONS MADE BY THE A.O. TOWARD S ALLEGED GIFTS AS UNEXPLAINED CREDITS, INSPITE OF FURNISHING ALL THE DETAILS SUCH AS BANK STATEMENTS OF DONOR AND DONEE, BANK TRANSFER VOUCHE RS FOR HAVING REMITTANCE OF MONEY TO INDIA AND ALSO SOURCES AND C APACITY OF THE DONOR TO GIVE GIFTS. THE A.R. FURTHER SUBMITTED THAT THE DONOR AND THE DONE ARE BROTHERS. THE ASSESSEE HAS RECEIVED GIFTS FROM HIS BROTHER SHRI V. BALA SUDHAKAR OUT OF NATURAL LOVE AND AFFECTION ON VARIOUS OCCASIONS FOR WHICH NECESSARY DETAILS OF BANK TRANSFER VOUCHERS A ND CREDITS IN THE ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 8 ASSESSEES BANK ACCOUNT CORRESPONDING WITH DEPOSITS IN DONORS BANK ACCOUNT HAS BEEN ESTABLISHED BEFORE THE A.O. THE A. O., DURING THE COURSE OF ASSESSMENT PROCEEDINGS, SUMMONED THE DONO R AND THE DONOR HAS PERSONALLY APPEARED BEFORE THE A.O. AND ADMITTE D THAT HE HAD GIVEN GIFTS TO HIS BROTHER ON VARIOUS OCCASIONS. THE DON OR ALSO CONFIRMED THAT HE HAD SUFFICIENT MEANS TO GIVE GIFTS TO HIS BROTHE R AND TO THIS EFFECT, FURNISHED PROOF OF HIS SOURCES OF INCOME IN ABROAD AND ALSO PROOF OF REMITTANCE OF MONEY THROUGH MONEY EXCHANGE FROM HIS FOREIGN BANK ACCOUNT TO HIS BROTHERS INDIAN BANK ACCOUNT. THE A .R. FURTHER SUBMITTED THAT THE ASSESSEE HAS CORRELATED EACH AND EVERY ENT RY OF CREDITS IN HIS BANK ACCOUNT WITH CORRESPONDING DEBIT IN HIS BROTHE RS ACCOUNT AND ALSO PROVED TRANSFER OF MONEY FROM ABROAD TO HIS BROTHER S BANK ACCOUNT. THE A.O., AT THE TIME OF ASSESSMENT HAS CONSIDERED BANK ACCOUNT OF ASSESSEE MAINTAINED AT HDFC BANK, WHERE THESE CREDI TS ARE FOUND CREDITED, BUT THE FACT IS THAT THE ASSESSEE HAS REC EIVED GIFT FROM HIS BROTHER TO HIS BANK ACCOUNT MAINTAINED AT ICICI BAN K AND FROM ICICI BANK THE SAME AMOUNT HAS BEEN TRANSFERRED TO HDFC B ANK. THE ASSESSEE HAS CORRELATED ALL THE ENTRIES IN THE ICIC I BANK TO HDFC BANK AND EXPLAINED THE SOURCES FOR THE CREDITS WITH NECE SSARY BANK TRANSFER VOUCHERS FROM HIS BROTHERS ACCOUNT IN ABROAD. THE A.O. AFTER HAVING VERIFIED DETAILS AND ALSO RECORDED STATEMENT FROM T HE DONOR FAILED TO ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 9 APPRECIATE THE FACT THAT THE ASSESSEE HAS SUFFICIEN T SOURCES TO GIVE GIFT TO HIS BROTHER, SIMPLY MADE ADDITIONS FOR THE REASO N THAT THE DONOR DOES NOT HAVE SUFFICIENT SOURCES OF INCOME TO JUSTIFY TH E GIFTS GIVEN TO HIS BROTHER. THE A.O. ALSO HELD THAT THERE IS NO OCCAS ION FOR THE DONOR TO GIVE GIFTS TO HIS BROTHER AND THE GIFTS ARE GIVEN A S PER THE NECESSITY OF THE ASSESSEE, BUT THE FACT IS THAT ONCE THE RELATIO NSHIP IS ESTABLISHED BETWEEN DONOR AND THE DONE, THERE IS NO NECESSITY O F ANY OCCASION FOR GIVING GIFT AND THE GIFTS CAN BE GIVEN OUT OF NATUR AL LOVE AND AFFECTION BETWEEN RELATIVES. 7. ON THE OTHER HAND, THE LD. D.R. STRONGLY SUPPORT ED THE ORDER OF THE CIT(A) IN RESPECT OF ASSESSMENT YEARS 2009-10 & 2010-11, HOWEVER IN RESPECT OF ASSESSMENT YEAR 2011-12, THE D.R. SUB MITTED THAT CIT(A) ERRED IN ALLOWING PARTIAL RELIEF OF RS.20 LAKHS TOW ARDS ALLEGED GIFT TO THE ASSESSEE, AS THE ASSESSEE HAS FAILED TO PROVE THE G ENUINENESS OF GIFT AND ALSO CREDITWORTHINESS OF THE DONOR. THOUGH ASSE SSEE FURNISHED PROOF OF TRANSFER OF MONEY FROM ABROAD TO HIS ACCOUNT, TH E DONOR DOES NOT HAVE SUFFICIENT SOURCE OF INCOME TO GIVE GIFT TO HI S BROTHER. UNDER THESE CIRCUMSTANCES THE A.O. HAS RIGHTLY MADE ADDITIONS T OWARDS ALLEGED GIFT AND HIS ORDER SHOULD BE UPHELD. ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 10 8. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE A.O. MADE ADDITIONS TOWARDS ALLEGED GIFTS STATED TO BE RECEIVED FROM HIS BROTHER, SHRI V. BALA SUDHAKAR FOR THE REASON THAT THE ASSESSEE HAS FAILED TO PROVE GENUINENESS OF GIFTS RECEIVED FROM HIS BROTHER AND ALSO CAPACITY OF THE DONOR TO GIVE GIFTS. THE A.O. WAS OF THE OPINION THAT THE ASSESSEE HAS RECEIVED PERIODICAL AMOUNT FROM HIS BR OTHER IN THE GUISE OF GIFTS. HOWEVER, THERE IS NO OCCASION FOR THE DONOR TO GIVE GIFT TO HIS BROTHER AND THE GIFTS STATED TO BE RECEIVED FROM HI S BROTHER ARE GIVEN OVER A PERIOD OF TIME ACCORDING TO THE NECESSITY OF THE ASSESSEE. THE A.O. FURTHER WAS OF THE OPINION THAT THE ASSESSEE H AS FAILED TO DISCHARGE THE INITIAL BURDEN CAST UPON HIM BY PROVING THE GEN UINENESS OF THE TRANSACTION AND CREDITWORTHINESS OF THE PARTIES. IT IS THE CONTENTION OF THE ASSESSEE THAT GIFTS ARE GENUINE TRANSACTIONS AN D RECEIVED FROM HIS BROTHER OUT OF NATURAL LOVE AND AFFECTION. THE ASSE SSEE FURTHER CONTENDED THAT HIS BROTHER IS HAVING SUFFICIENT SOU RCES OF INCOME TO GIVE GIFT AND HE HAD FURNISHED NECESSARY PROOF OF BANK S TATEMENTS OF THE DONOR, PROOF OF HIS SOURCES OF INCOME AND ALSO TRAN SFER VOUCHERS FOR TRANSFER OF MONEY IN THE FOREIGN CURRENCY TO HIS IN DIAN ACCOUNT. IT WAS FURTHER CLAIMED THAT HE HAD CORRELATED EACH AND EVE RY ENTRY IN THE BANK ACCOUNT WITH CORRESPONDING DEBIT ENTRY IN HIS BROTH ERS BANK ACCOUNT, ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 11 WHICH WAS FURTHER SUPPORTED BY TRANSFER VOUCHERS IS SUED BY HABIB QATAR INTERNATIONAL EXCHANGE LTD. FOR HAVING TRANSFERRED MONEY TO INDIAN BANK ACCOUNT MAINTAINED AT ICICI BANK. THE ASSESSE E FURTHER CLAIMS THAT THE A.O., DURING THE COURSE OF ASSESSMENT PROC EEDINGS, SUMMONED DONOR AND THE DONOR HAS PERSONALLY APPEARED BEFORE THE A.O. AND ADMITTED THAT HE HAD GIVEN GIFTS TO HIS BROTHER. T HE DONOR FURNISHED PROOF OF TRANSFER OF MONEY FROM HIS FOREIGN ACCOUNT TO INDIAN BANK AND MAINTAINED IN ICICI BANK ALONG WITH PROOF OF HIS SO URCES OF INCOME IN ABROAD. WE FIND FORCE IN THE ARGUMENTS OF THE ASSE SSEE, FOR THE REASON THAT THE ASSESSEE HAS FURNISHED DETAILS OF GIFTS RE CEIVED FROM HIS BROTHER. THE ASSESSEE RIGHT FROM THE BEGINNING CLAIMS THAT T HE SOURCES FOR HIS INVESTMENTS IN VARIOUS FIRMS IS OUT OF GIFTS RECEIV ED FROM HIS BROTHER FOR THE PAST 3 YEARS. THE ASSESSEE ALSO FURNISHED ALL P ROOF WITH REGARD TO GIFT RECEIVED FROM HIS BROTHER, SUCH AS BANK STATEM ENTS OF DONOR AND DONEE, SOURCES OF INCOME OF DONOR AND TELEGRAPHIC T RANSFER VOUCHERS ISSUED BY MONEY EXCHANGER IN ABROAD FOR HAVING TRAN SFERRED MONEY TO INDIAN BANK ACCOUNTS. THEREFORE, WE ARE OF THE VIE W THAT THE A.O. WAS NOT CORRECT IN COMING TO THE CONCLUSION THAT THE AS SESSEE HAS NOT PROVED THE GENUINENESS OF THE ALLEGED GIFT AND ALSO CAPACI TY OF THE DONOR TO GIVE GIFT. ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 12 9. THE A.O. MADE ADDITIONS TOWARDS ALLEGED GIFT ON THE SOLE GROUND THAT THE ASSESSEE HAS FAILED TO PROVE THE CAPACITY OF THE DONOR TO GIVE SUCH A HUGE CASE. THE A.O. FURTHER ALLEGED THAT THE ASSESSEE HAS RECEIVED PERIODICAL GIFTS FROM HIS BROTHER ACCORDIN G TO HIS NECESSITY AND THERE IS NO OCCASION FOR THE DONOR TO GIVE GIFTS TO HIS BROTHER. WE DO NOT AGREE WITH THE FINDINGS OF THE A.O., FOR THE REASON THAT ONCE THE RELATIONSHIP IS ESTABLISHED BETWEEN THE DONOR AND T HE DONE, THERE IS NO REASON FOR THE A.O. TO DOUBT THE GIFTS BY STATING T HAT THERE IS NO OCCASION FOR GIVING GIFTS. NORMALLY GIFTS ARE MADE BY RELAT IVES THROUGH LOVE AND AFFECTION AND DO NOT NECESSARILY REQUIRE ANY PARTIC ULAR OCCASION, WHEN THE IDENTITY AND CAPACITY ARE PROVED BEYOND DOUBT. IN THE ABSENCE OF ANYTHING TO SHOW THAT THE TRANSACTION WAS BY WAY OF MONEY LAUNDERING, THE ADDITION COULD NOT BE MADE TOWARDS GIFTS, WHEN THE IDENTITY OF THE DONOR AND GENUINENESS OF THE TRANSACTIONS IS PROVED TO THE SATISFACTION OF THE ASSESSING OFFICER. THE BURDEN CAST UPON THE ASSESSEE STANDS DISCHARGED, THE MOMENT THE ASSESSEE PROVES THE IDEN TITY AND GENUINENESS OF THE TRANSACTIONS. THE ASSESSEE CANNO T BE FURTHER REQUIRED TO PROVE SOURCES OF THE MONEY OUT OF WHICH GIFTS ARE GIVEN. THEREFORE, WE ARE OF THE VIEW THAT THE A.O. WAS COM PLETELY ERRED IN MAKING ADDITIONS TOWARDS ALLEGED GIFTS INSPITE OF F URNISHING NECESSARY ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 13 PROOF WITH REGARD TO IDENTITY OF THE DONOR, GENUINE NESS OF THE TRANSACTIONS AND ALSO CAPACITY OF THE DONOR TO GIVE GIFTS. 10. HAVING SAID THAT, LET US COMING TO THE FACTS OF THE PRESENT CASE ON HAND. IN THE PRESENT CASE, THE ASSESSEE HAS FURNIS HED DETAILS OF BANK ACCOUNT OF THE DONOR, SOURCES OF HIS INCOME AND ALS O TRANSFER VOUCHERS ISSUED BY MONEY EXCHANGER IN ABROAD. THE ASSESSEE HAS FILED A PAPER BOOK AND ALSO MEMORANDUM OF WRITTEN SUBMISSIONS FOR THE ASSESSMENT YEAR 2009-10 ALONG WITH BANK STATEMENTS OF ASSESSEE MAINTAINED AT HDFC BANK AND ICICI BANK LTD. AND ALSO BANK STATEME NT OF DONOR SHRI V. BALA SUDHAKAR ALONG WITH TELEGRAPHIC TRANSFER VO UCHERS ISSUED BY AUTHORIZED FOREIGN EXCHANGE DEALERS. ON PERUSAL OF THE PAPER BOOK FILED BY THE ASSESSEE, WE FIND THAT THE A.O. HAS MADE ADD ITIONS OF RS.15 LAKHS TOWARDS ALLEGED GIFT STATED TO BE RECEIVED BY THE ASSESSEE FROM HIS BROTHER CREDITED IN ICICI BANK ACCOUNT ON 4.12.2008 , 28.1.2009 & 17.3.2009. ON FURTHER VERIFICATION OF THE DETAILS FILED BY THE ASSESSEE, WE FIND THAT THE SAID AMOUNT WAS TRANSFERRED FROM I CICI BANK ACCOUNT OF THE ASSESSEE TO HDFC BANK ACCOUNT. THIS AMOUNT, IN TURN HAS BEEN TRANSFERRED TO THE ACCOUNT OF THE ASSESSEE FROM HIS BROTHER SHRI V. BALA SUDHAKAR ACCOUNT WITH ICICI BANK VIDE ACCOUNT NO.00 0401086050 AND DONOR SHRI V. BALA SUDHAKAR HAS TRANSFERRED A SUM O F RS.14 LAKHS TO HIS ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 14 BANK ACCOUNT MAINTAINED AT ICICI BANK ON 25.8.2008 AND 26.8.2008. FROM THE ABOVE STATED FACTS, IT IS EVIDENT THAT THE ENTIRE AMOUNT OF RS.15 LAKHS DEPOSITED IN THE HDFC BANK ACCOUNT OF T HE ASSESSEE IS CORRELATED TO THE BANK ACCOUNT OF SHRI V. BALA SUDH AKAR, FURTHER SUPPORTED BY TRANSFER OF MONEY IN FOREIGN CURRENCY TO HIS BANK ACCOUNT AT ICICI BANK. 11. SIMILARLY, FOR THE ASSESSMENT YEAR 2010-11, THE ASSESSEE HAS FILED PAPER BOOK. ON PERUSAL OF THE PAPER BOOK FILED BY T HE ASSESSEE, WE FIND THAT THE ASSESSEE HAS FURNISHED BANK STATEMENT OF H DFC BANK AND ICICI BANK ALONG WITH BANK STATEMENT OF HIS BROTHER MAINT AINED AT ICICI BANK WITH MONEY TRANSFER VOUCHERS ISSUED BY HABIB QATAR INTERNATIONAL EXCHANGE LTD. OUT OF TOTAL GIFT OF RS.22,90,000/-, A SUM OF RS.16,90,000/- WAS TRANSFERRED TO THE ASSESSEE BANK ACCOUNT MAINTAINED AT HDFC BANK FROM ICICI BANK ACCOUNT ON 2 OCCASIONS. THE SOURCES FOR THE ABOVE TWO AMOUNTS WERE TRANSFERRED FROM HIS BROTHER SHRI V. BALA SUDHAKAR BANK ACCOUNT WITH ICICI BANK. THE DONOR SHRI V. BALA SUDHAKAR HAS MADE TELEGRAPHIC TRANSFER OF FUND S FROM ABROAD THROUGH BANKING CHANNEL. ON PERUSAL OF THE DETAILS FILED BY THE ASSESSEE, WE FIND THAT THE ENTIRE GIFT AMOUNT OF RS .22,90,000/- HAS BEEN CORRELATED WITH CORRESPONDING CREDITS IN THE DONORS BANK ACCOUNT, ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 15 FURTHER SUPPORTED BY TRANSFER VOUCHERS FOR HAVING T RANSFER OF MONEY FROM ABROAD TO HIS INDIAN BANK ACCOUNT. FROM THE A BOVE FACTS, IT IS CLEAR THAT THE ENTIRE AMOUNT OF RS.22,90,000/- STAN DS EXPLAINED AND ALSO CORRELATED TO THE BANK ACCOUNT OF SHRI V. BALA SUDH AKAR. 12. COMING TO THE ASSESSMENT YEAR 2011-12. OUT OF THE TOTAL GIFTS OF RS.64,17,400/-, THE CIT(A) HAS ALLOWED PARTIAL RELI EF OF RS.20 LAKHS. ON PERUSAL OF THE ORDER PASSED BY THE CIT(A), WE FIND THAT THE CIT(A) HAS CORRELATED ENTRIES IN THE BANK ACCOUNT OF THE ASSES SEE TO THE CREDITS IN THE BANK ACCOUNT OF THE DONOR WITH NECESSARY MONEY TRANSFER VOUCHERS. THE CIT(A), ALLOWED RELIEF TO THE EXTENT OF RS.20 L AKHS BY STATING THAT THE DONOR HAS PROVED THE SOURCES FOR THE GIFTS OF R S.20 LAKHS. IN RESPECT OF RS. 18,00,789/-, THOUGH ASSESSEE ABLE TO CORRELA TE ENTRIES WITH NECESSARY BANK ENTRIES, THE CIT(A) CONFIRMED ADDITI ONS, BY STATING THAT, THE ASSESSEE FAILED TO PROVE THE SOURCES OF DONOR F OR THE GIFT TO THE EXTENT OF RS.18,00,789/-. THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING DETAILS OF BANK STATEMENTS OF HDFC BANK AND ICICI BANK ALONG WITH BANK STATEMENTS OF DONOR SHRI V. BALA SU DHAKAR IN INDIA AND ABROAD. ON VERIFICATION OF THE DETAILS FILED BY TH E ASSESSEE, WE NOTICED THAT THE ASSESSEE HAS CORRELATED GIFTS TO THE EXTEN T OF RS.43,00,789/- WITH NECESSARY ENTRIES IN BANK ACCOUNTS CORRESPONDI NG WITH MONEY ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 16 TRANSFER VOUCHERS. THEREFORE, WE ARE OF THE VIEW T HAT ONCE THE ASSESSEE HAS PROVED THE GIFTS WITH NECESSARY ENTRIES IN THE BANK ACCOUNT ALONG WITH CORRESPONDING TRANSFER VOUCHERS FROM ABROAD, T HE LOWER AUTHORITIES WERE NOT CORRECT IN MAKING ADDITIONS TOWARDS ALLEGE D GIFT BY STATING THAT THE DONOR DOES NOT HAVE SOURCES OF INCOME. THE MOM ENT THE ASSESSEE PROVES THE IDENTITY AND GENUINENESS OF THE TRANSACT IONS, HE NEEDS NOT TO PROVE THE SOURCES FOR THE GIFTS HE HAD RECEIVED. 13. COMING TO THE BALANCE AMOUNT OF RS.21,16,631/-. THE ASSESSEE INITIALLY CLAIMS TO HAVE RECEIVED GIFTS OF RS.64,17 ,400/- FROM HIS BROTHER, BUT, FAILED TO PROVE THE GIFTS WITH NECESSARY EVIDE NCES TO THE EXTENT OF RS.21,16,631/-. THE ASSESSEE CLAIMS THAT THE REMAIN ING AMOUNT OF RS.21,16,631/- HAS BEEN RECEIVED FROM VARIOUS PERSO NS IN THE FORM OF LOANS, BUT HE COULD NOT FURNISH NECESSARY DETAILS B EFORE THE A.O., ON THE BONAFIDE BELIEF THAT HIS BROTHER HAS GIVEN POSITIVE DEPOSITION BEFORE THE A.O. AND ALSO THE ENTIRE AMOUNT RECEIVED AS GIFT FR OM HIS BROTHER. HOWEVER, ON ANALYSIS OF THE BANK STATEMENT, IT WAS NOTICED THAT A SUM OF RS.43,00,789/- HAS BEEN RECEIVED FROM HIS BROTHE R AND THE REMAINING AMOUNT OF RS. 21,16,631/- HAS BEEN RECEIVED FROM VA RIOUS PERSONS. THE ASSESSEE FURTHER SUBMITTED THAT THOUGH HE CLAIMS TH AT THE ENTIRE AMOUNT IS RECEIVED FROM HIS BROTHER, AN AMOUNT OF RS.21,16 ,631/- HAS BEEN ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 17 RECEIVED THROUGH BANKING CHANNELS FROM HIS CLOSE FR IENDS AND RELATIVES. THE ASSESSEE HAS FILED A PAPER BOOK CONTAINING DETA ILS OF AMOUNT RECEIVED FROM HIS FRIENDS AND RELATIVES ALONG WITH CONFIRMATION LETTERS. ON PERUSAL OF THE DETAILS FILED BY THE ASSESSEE, WE FIND THAT OUT OF RS.21,16,631/- A SUM OF RS.5 LAKHS RECEIVED ON 2.2. 2011 FROM M/S. PRADHAN HOSPITALS PVT. LTD. TOWARDS REPAYMENT OF IN VESTMENT MADE BY THE ASSESSEE. TO THIS EFFECT M/S. PRADHAN HOSPITAL PVT. LTD. HAS ISSUED A CONFIRMATION LETTER. THE ASSESSEE FURTHER SUBMITTED THAT A SUM OF RS.2,99,000/- RECEIVED FROM HIS WIFE SMT. (DR.) K.N . SATYAMBA ON 15.3.2007 VIDE CHEQUE NO.312277. SIMILARLY, HE HAD EXPLAINED THE SOURCES FOR THE REMAINING AMOUNT WITH NECESSARY CON FIRMATION LETTERS. BUT, THE FACT REMAINS THAT THE ASSESSEE HAS INITIAL LY CLAIMED THAT THE TOTAL AMOUNT IS RECEIVED FROM HIS BROTHER, SUBSEQUENTLY C HANGED HIS ARGUMENT AND STATED THAT THE BALANCE AMOUNT IS RECE IVED FROM HIS FRIENDS AND RELATIVES. THEREFORE, WE ARE OF THE VI EW THAT THE ASSESSEE IS COULD ABLE TO EXPLAIN THE SOURCES TO THE EXTENT OF RS.43,00,789/- OUT OF THE TOTAL GIFT OF RS. 64,17,400/-. THEREFORE, WE AR E OF THE VIEW THAT THE ASSESSEE HAS PROVED THE IDENTITY, GENUINENESS AND T HE CAPACITY OF THE DONOR TO THE EXTENT OF RS.43,00,789/- AND THE REMAI NING AMOUNT OF RS.21,16,611/- REMAINS UNPROVED. ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 18 14. COMING TO THE CASE LAWS RELIED UPON BY THE ASSE SSEE. THE ASSESSEE RELIED UPON THE DECISION OF HONBLE HIGH C OURT OF PUNJAB & HARYANA, IN THE CASE OF CIT VS. JAWAHAR LAL OSWAL ( 2016) 133 DTR 15. THE HONBLE PUNJAB & HARYANA HIGH COURT, HELD THAT WHEN ASSESSEE HAS FURNISHED DETAILS OF GIFTS AND ALSO ESTABLISHES THE RELATIONSHIP BETWEEN THE DONOR AND THE DONE, THE REVENUE CANNOT DRAW ANY INFERENCE, SUSPICION OR DOUBT OR PERSPECTIVES OF CULPABILITY O R ON THE QUANTUM OF THE AMOUNT, INVOLVED. THE COURT FURTHER HELD THAT S USPICION AND DOUBT MAY BE STARTING POINT OF INVESTIGATION BUT CANNOT A T THE FINAL STAGE OF ASSESSMENT, TAKE THE PLEA OF RELEVANT FACTS, PARTIC ULARLY WHERE A DEEMING PROVISION IS SOUGHT TO BE INVOKED. THE REL EVANT PORTION OF THE ORDER IS EXTRACTED BELOW: S USPICION AND DOUBT MAY BE THE STARTING POINT OF AN INVESTIGATION BUT CANNOT, AT THE FINAL STAGE OF ASSESSMENT, TAKE THE PLACE OF RELEVA NT FACTS, PARTICULARLY WHERE A DEEMING PROVISION IS SOUGHT TO BE INVOKED. THE PRIN CIPLE THAT GOVERNS A DEEMING PROVISION IS THAT THE INITIAL ONUS LIES UPON THE RE VENUE TO RAISE A PRIMA FACIE DOUBT ON THE BASIS OF CREDIBLE MATERIAL. THE ONUS, THEREAFTE R, SHIFTS TO THE ASSESSEE TO PROVE THAT THE GIFT IS GENUINE AND IF THE ASSESSEE IS UNA BLE TO PROFFER A CREDIBLE EXPLANATION, THE ASSESSING OFFICER MAY LEGITIMATELY RAISE AN INFERENCE AGAINST THE ASSESSEE. IF, HOWEVER, THE ASSESSEE FURNISHES ALL RE LEVANT FACTS WITHIN HIS KNOWLEDGE AND OFFERS A CREDIBLE EXPLANATION, THE ONUS REVERTS TO THE REVENUE TO PROVE THAT THESE FACTS ARE NOT CORRECT. THE REVENUE CANNOT DRA W AN INFERENCE BASED UPON SUSPICION OR DOUBT OR PERCEPTIONS OF CULPABILITY OR ON THE QUANTUM OF THE AMOUNT, INVOLVED. ANY AMBIGUITY OR ANY IFS AND BUTS IN THE MATERIAL COLLECTED BY THE ASSESSING OFFICER MUST NECESSARILY BE READ IN FAVOU R OF THE ASSESSEE, PARTICULARLY WHEN THE QUESTION IS ONE OF TAXATION, UNDER A DEEMI NG PROVISION. THUS, NEITHER SUSPICION/DOUBT, NOR THE QUANTUM SHALL DETERMINE TH E EXERCISE OF JURISDICTION BY THE ASSESSING OFFICER. THE ABOVE EXPOSITION SHALL N OT BE MISCONSTRUED TO RESTRICT THE POWER OF THE REVENUE TO RAISE AN INFERENCE AS TO TH E EFFICACY OF MATERIAL PRODUCED BY OR BEFORE THE ASSESSING OFFICER. ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 19 THE EXERCISE OF APPELLATE POWER UNDER SECTION 260A OF THE ACT IS STATUTORILY CIRCUMSCRIBED BY THE WORD 'SUBSTANTIAL', USED BEFOR E THE WORDS 'QUESTION OF LAW', THUS, REQUIRING AN ANSWER TO A 'SUBSTANTIAL QUESTIO N OF LAW'. A QUESTION OF FACT MAY, HOWEVER, PARTAKE THE NATURE OF A SUBSTANTIAL QUESTI ON OF LAW IF THE PROCESS OF REASONING OR THE REASONS ASSIGNED ARE PERVERSE AND/ OR ARBITRARY OR RELEVANT FACTS HAVE BEEN IGNORED OR MISCONSTRUED. A SET OF FACTS M AY ADMIT, AS THEY OFTEN DO, TO TWO DIFFERENT AND DIAMETRICALLY OPPOSING VIEWS BUT INTERFERENCE UNDER SECTION 260-A OF THE ACT, WOULD ONLY BE WARRANTED, IF FINDINGS AR E SO INCOMPREHENSIBLE AS TO BE PERVERSE AND/OR ARBITRARY. IF, HOWEVER, THE FINDINGS ADMIT TO TWO VIEWS AND THE VIEW ADOPTED BY THE TRIBUNAL IS PLAUSIBLE, THOUGH DEBAT ABLE, A COURT EXERCISING POWER UNDER SECTION 260-A OF THE ACT, MUST DESIST FROM SU BSTITUTING ITS OWN OPINION FOR THE OPINION OF THE TRIBUNAL. THE QUANTUM OF TAX OR THE ALLEGED AMOUNT OF EVASION ARE IRRELEVANT AS WHAT IS RELEVANT IS THE SUBSTANTIAL Q UESTION OF LAW THAT ARISES FOR ADJUDICATION. THE ASSESSEE REPLIED TO THE QUERIES, ADDRESSED BY T HE ASSESSING OFFICER, DISCLOSED THE IDENTITY OF DONORS AND DENIED THAT THE GIFTS WE RE HIS INCOME. THE ASSESSEE PRODUCED DR. O.S.GILL, BEFORE THE ASSESSING OFFICER , WHO STATED THAT HE HAD AN ANNUAL INCOME OF $ 12,0000. THE ASSESSING OFFICER W AS DISSATISFIED AND SOUGHT INFORMATION THROUGH THE CENTRAL BOARD OF DIRECT TAX ES, WHICH, IN TURN, SOUGHT INFORMATION FROM THE INLAND REVENUE SERVICE, GREAT B RITAIN. THE INFORMATION RECEIVED, CONFIRMED THAT DR. O.S.GILL AND B.P.BHARD WAJ HAD ACCOUNTS IN MIDLAND BANK, UNITED KINGDOM AND THE DEMAND DRAFTS WERE P REPARED BY THIS BANK. THE INCOME OF DR.O.S.GILL WAS VERIFIED. DR.O.S.GILL AP PEARED BEFORE THE ASSESSING OFFICER AND ADMITTED THE GIFT. AS REGARDS THE GIFT MADE BY SHRI B.P.BHARDWAJ, THE LATTER DID NOT APPEAR BEFORE THE ASSESSING OFFICER BUT HIS ACC OUNT WAS VERIFIED FROM THE INLAND REVENUE SERVICE, GREAT BRITAIN. THE QUESTION THAT ARISES FROM AN EXAMINATION OF THE MATERIAL ON RECORD AND THE FINDINGS RECORDED BY THE TRIBUNAL, WHICH HAVE BEEN REPRODUCED IN DETAIL IN PRECEDING PARAGRAPHS, PARTI CULARLY IN THE CONTEXT OF THE QUESTIONS OF LAW FRAMED ON 08.4.2002, IS WHETHER TH E ASSESSEE HAS DISCHARGED HIS ONUS TO PROVE THAT GIFTS ARE VALID AND THERE CANNOT BE TREATED AS HIS DEEMED INCOME UNDER SECTION 69-A OF THE ACT. AS ALREADY RECORDED, THE TRIBUNAL HAS, AFTER EXAMINING THE ENTIRE MATERIAL, IN DETAIL, RECORDED A FINDING THAT THE ASSESSEE HAS DISCHARGED ONUS TO PROVE THAT THE GIFTS ARE GENUINE , THEREBY AFFIRMING THE OPINION RECORDED BY THE CIT (APPEALS), AS REGARDS THE GIFT MADE BY DR. O.S.GILL BUT REVERSING THE OPINION AS REGARDS THE GIFT MADE BY B.P.BHARDWA J. THE FINDINGS ARE NEITHER PERVERSE NOR ARBITRARY AND MAY, IF AT ALL, BE DEBAT ABLE. DR. O.S.GILL APPEARED BEFORE THE ASSESSING OFFICER, HIS INCOME AND ACCOUNTS WERE VERIFIED FROM THE INLAND REVENUE SERVICE, GREAT BRITAIN BUT THE ASSESSING OF FICER DREW AN INFERENCE AGAINST THE ASSESSEE AS DR. O.S.GILL COULD NOT DISCLOSE HIS ACCOUNT NUMBER, HIS ANSWERS WERE HELD TO BE VAGUE AND THERE DOES NOT APPEAR TO BE ANY SUCH RELATIONSHIP BETWEEN THE PARTIES THAT WOULD WARRANT SUCH A LARGE GIFT. A S DR.O.S.GILL APPEARED BEFORE THE ASSESSING OFFICER, ADMITTED THAT IT WAS HIS MONEY A ND ADMITTED THE GIFT, HIS ACCOUNTS AND INCOME WERE VERIFIED, HIS FAILURE TO REMEMBER H IS ACCOUNT NUMBER, WHICH WAS ALREADY KNOWN TO THE REVENUE, COULD NOT JUSTIFY THE RAISING OF AN INFERENCE AGAINST THE ASSESSEE. ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 20 A QUESTION MAY, HOWEVER, LEGITIMATELY ARISE THAT SU CH A LARGE AMOUNT COULD NOT BE GIVEN AS A GIFT ON THE MARRIAGE OF THE ASSESSEE'S D AUGHTER BUT THIS QUESTION IS SPECULATIVE AND CANNOT FORM THE BASIS FOR RAISING A N INFERENCE AGAINST AN ASSESSEE. THE ASSESSING OFFICER WAS APPARENTLY OVER-AWED BY T HE AMOUNT OF THE GIFT AND, THEREFORE, PROCEEDED TO BASE HIS OPINION ON HIS PER CEPTION THAT NO ONE WOULD GIFT SUCH A LARGE AMOUNT. A DEEMING PROVISION REQUIRES T HE ASSESSING OFFICER TO COLLECT RELEVANT FACTS AND THEN CONFRONT THE ASSESSEE, WHO IS THEREAFTER, REQUIRED TO EXPLAIN INCRIMINATING FACTS AND IN CASE HE FAILS TO PROFFER A CREDIBLE INFORMATION, THE ASSESSING OFFICER MAY VALIDLY RAISE AN INFERENCE OF DEEMED INCOME UNDER SECTION 69- A OF THE ACT. AS ALREADY HELD, IF THE ASSESSEE PROFF ERS AN EXPLANATION AND DISCLOSES ALL RELEVANT FACTS WITHIN HIS KNOWLEDGE, THE ONUS R EVERTS TO THE REVENUE TO ADDUCE EVIDENCE AND ONLY THEREAFTER, MAY AN INFERENCE BE R AISED, BASED UPON RELEVANT FACTS, BY INVOKING THE DEEMING PROVISIONS OF SECTION 69-A OF THE ACT. IT IS TRUE THAT INFERENCES AND PRESUMPTIONS ARE INTEGRAL TO AN ADJU DICATORY PROCESS BUT CANNOT BY THEMSELVES BE RAISED TO THE STATUS OF SUBSTANTIAL E VIDENCE OR EVIDENCE SUFFICIENT TO RAISE AN INFERENCE. A DEEMING PROVISION, THUS, ENAB LES THE REVENUE TO RAISE AN INFERENCE AGAINST AN ASSESSEE ON THE BASIS OF TANGI BLE MATERIAL AND NOT ON MERE SUSPICION, CONJECTURES OR PERCEPTIONS. IT WOULD ALS O BE NECESSARY TO REITERATE THAT IT IS NOT PERCEPTIONS BUT CONCRETE FACTS THAT UNDERLIN E QUASI JUDICIAL DETERMINATIONS AND WHERE CONCRETE FACTS ARE NOT AVAILABLE, RELEVANT FA CTS, AS WOULD RAISE A CREDIBLE INFERENCE OF CULPABILITY REQUIRING AN ASSESSEE TO R EBUT THE INFERENCE SO RAISED. MORE OFTEN THAN NOT, REVENUE AUTHORITIES, FOR WANT OF RE LEVANT MATERIAL, INSTITUTE 'INQUISITIONS', AS OPPOSED TO INQUIRIES AND BY ADDR ESSING QUESTIONS THAT THE MORE INCULPATORY IN NATURE, SEEK TO BUILD THEIR CASE, FR OM ANSWERS PROFFERED BY AN ASSESSEE. THE FINDINGS OF FACT RECORDED BY THE CIT (A) AND THE TRIBUNAL REGARDING THE GIFT MADE BY DR. O.S.GILL ARE PLAUSIBLE, THOUGH DEBATABLE, DO NOT CALL FOR INTERFERENCE. THE ASSESSING OFFICER AND THE CIT (APPEALS) IGNORED THE FACT THAT THE DRAFTS WERE PREPARED FROM THE ACCOUNT OF SHRI B.P.BHARDWAJ AND IF THE ASSESSING OFFICER WAS TO RELY UPON THE STATEMENT MADE BY SHRI B.P.BHARDWAJ T HAT HE HAD RECEIVED THE MONEY FROM SHRI VARINDER SHARMA OF MOSCOW, THE ONUS LAY U PON THE REVENUE TO PURSUE THIS LEAD AND TRACE SHRI VARINDER SHARMA BUT, UNFORTUNAT ELY, NO FURTHER ENQUIRY WAS CARRIED OUT BUT INSTEAD THE ASSESSEE WAS ASKED TO D ISCLOSE THE WHEREABOUTS AND HIS CONNECTION WITH SH. VARINDER SHARMA. THE ASSESSEE D ENIED ANY ASSOCIATION, BUSINESS OR OTHERWISE WITH SHRI VARINDER SHARMA BUT ADMITTED THAT SHRI VARINDER SHARMA WAS KNOWN TO HIM. THE ONUS, THEREFORE, SHIFTED TO THE R EVENUE TO PROVE THAT SHRI VARINDER SHARMA WAS AN ASSOCIATE OR AN EMPLOYEE AND ONLY THEREAFTER COULD THE REVENUE RAISE AN INFERENCE THAT THE ASSESSEE HAD RO UTED HIS FUNDS THROUGH SHRI VARINDER SHARMA, IN THE GARB OF A GIFT DRAWN IN THE NAME OF HIS DAUGHTERS. A PERUSAL OF THE RECORD REVEALS THAT THE ASSESSING OFFICER DI D NOT PURSUE THE MATTER ANY FURTHER AND MERELY BASED HIS OPINION ON AN ASSUMED CONNECTION BETWEEN THE ASSESSEE AND SHRI VARINDER SHARMA AND HAS FAILED TO REFER TO ANY MATERIAL, HOWSOEVER PERFUNCTORY, THAT WOULD INDICATE THAT SHR I VARINDER SHARMA WAS AN EMPLOYEE OR AN ASSOCIATE OF THE ASSESSEE. THE ASSES SING OFFICER, THUS, DREW AN ADVERSE INFERENCE AGAINST THE ASSESSEE FOR HIS FAIL URE TO 'DISPROVE' HIS RELATIONSHIP WITH SHRI VARINDER SHARMA. AN ARRANGEMENT BETWEEN A DONOR AND ANOTHER IS AN ARRANGEMENT BETWEEN THE DONOR AND HIS SOURCE OF MON EY. THE ONUS TO PROBE AND ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 21 PROVE THIS ASPECT LIES UPON THE REVENUE AND NOT UPO N THE ASSESSEE, PARTICULARLY WHERE THE INCOME IS BEING DEALT WITH UNDER A DEEMIN G PROVISION. A PERSON WHO RECEIVES A GIFT, IS NOT REQUIRED TO PROVE THE SOURC E OF THE MONEY OF HIS DONOR. ONE CANNOT BE OBLIVIOUS TO THE FACT THAT SUCH A LARGE G IFT RECEIVED FROM A FOREIGN COUNTRY IS BOUND TO RAISE SUSPICION BUT CANNOT DISREGARD TH E FACT THAT SUSPICION AND DOUBT CANNOT REPLACE PROOF OR TRANSLATE INTO REASONS, MUC H LESS REASONS FOR INVOKING A DEEMING PROVISION TO HOLD THAT GIFTS REPRESENT THE INCOME OF THE ASSESSEE, PARTICULARLY IN THE ABSENCE OF RELEVANT FACTS. A FU RTHER PERUSAL OF ORDERS PASSED BY THE ASSESSING OFFICER REVEALS THAT HE PROCEEDED AS IF THE ENTIRE ONUS LAY UPON THE ASSESSEE, IGNORED THE MATERIAL RECEIVED FROM THE CE NTRAL BOARD OF DIRECT TAXES FROM THE INLAND REVENUE SERVICE, GREAT BRITAIN AND FAILED TO FOLLOW THE MATTER ANY FURTHER WITH RESPECT TO SHRI VARINDER SHARMA AND ON THE BAS IS OF SUSPICION, HELD THAT GIFTS ARE NOT GENUINE. HAVING ALREADY HELD THAT IT WAS FO R THE REVENUE TO PROCEED TO INVESTIGATE THE MATTER FURTHER, I FIND NO ERROR IN THE OPINION RECORDED BY THE TRIBUNAL, WHICH HAS BEEN REPRODUCED IN DETAIL IN PR ECEDING PARAGRAPHS OR THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, A DIFFERENT OP INION COULD BE RECORDED. CONSEQUENTLY, THE SUBSTANTIAL QUESTION OF LAW IS AN SWERED AGAINST THE REVENUE. AS REGARDS THE SECOND QUESTION, THE QUESTION HAVING BE EN ANSWERED WHILE ANSWERING THE FIRST QUESTION, IT IS HELD THAT THE TRIBUNAL HA S RIGHTLY OPINED THAT THE GIFT COULD NOT BE TREATED AS A DEEMED INCOME OF THE ASSESSEE. 15. THE ASSESSEE RELIED UPON THE DECISION OF HIGH C OURT OF DELHI, IN THE CASE OF CIT VS. SUDHIR BHDHRAJA (2015) 127 DTR 65. THE HONBLE HIGH COURT OF DELHI, UNDER SIMILAR CIRCUMSTANCES HE LD THAT FINDING OF THE TRIBUNAL THAT THE ASSESSEE HAS DISCHARGED HIS BURDE N AS TO THE IDENTITY AS WELL AS THE CAPACITY OF THE DONOR WAS BASED ON M ATERIAL AND EVIDENCE ON RECORD AND A.O. HAD NOT PRODUCED ANY POSITIVE EV IDENCE WHICH COULD LEAD TO THE INFERENCE THAT THE AMOUNT RECEIVED BY T HE ASSESSEE WAS NOT GIFT. THE TRIBUNAL WAS CORRECT IN DELETING THE ADD ITIONS MADE BY THE A.O. U/S 68 OF THE ACT. 16. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO RESPECTFULLY FOLLOWING THE DECISION OF HONBLE HIGH COURT OF PUNJAB & ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 22 HARYANA HIGH COURT AND HONBLE HIGH COURT OF DELHI, WE ARE OF THE VIEW THAT IN THE ABSENCE OF ANYTHING TO SHOW THAT THE TR ANSACTION WAS BY WAY OF MONEY LAUNDERING, ADDITIONS COULD NOT BE MADE TO WARDS GIFTS WHEN THE ASSESSEE HAS DISCHARGED HIS BURDEN BY PROVING T HE IDENTITY, GENUINENESS AND CAPACITY OF THE DONOR. WE FURTHER O PINED THAT GIFTS ARE NORMALLY MADE BY RELATIVES THROUGH NATURAL LOVE AND AFFECTION AND DO NOT NECESSARILY REQUIRE ANY PARTICULAR OCCASION. I N THE PRESENT CASE ON HAND, THE ASSESSEE HAS DISCHARGED HIS BURDEN BY FUR NISHING NECESSARY DETAILS BEFORE THE A.O. THE A.O. HAS SUMMONED THE DONOR AND THE DONOR HAS PERSONALLY APPEARD BEFORE THE A.O. AND AD MITTED THAT HE HAD GIVEN GIFTS TO HIS BROTHER. UNDER THESE CIRCUMSTAN CES, WE ARE OF THE VIEW THAT THE A.O. WAS NOT CORRECT IN COMING TO THE CONCLUSION THAT THE ASSESSEE HAS NOT DISCHARGED GENUINENESS OF THE TRAN SACTIONS AND CAPACITY OF THE DONOR. THEREFORE, WE DIRECT THE A.O . TO DELETE THE ADDITIONS MADE TOWARDS ALLEGED GIFTS OF RS.15 LAKHS FOR THE ASSESSMENT YEAR 2009-10, RS.22,90,000/- FOR THE ASSESSMENT YEA R 2010-11 AND RS.43,00,789/- FOR THE ASSESSMENT YEAR 2011-12. IN RESPECT OF REMAINING AMOUNT OF RS.21,16,611/- FOR THE ASSESSME NT YEAR 2011-12, WE DEEM IT APPROPRIATE TO SEND THE ISSUE TO FILE OF THE A.O. AND DIRECT THE A.O. TO VERIFY THE CLAIMS MADE BY THE ASSESSEE WITH REGARD TO ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 23 SOURCES OF RS.21,16,611/- AND TAKE APPROPRIATE DECI SION IN ACCORDANCE WITH LAW. 17. IN THE RESULT, THE APPEALS FILED BY THE ASSESSE E FOR THE ASSESSMENT YEARS 2009-10 & 2010-11 IN ITA NOS.6 & 8/VIZAG/2015 ARE ALLOWED AND THE APPEAL FILED BY THE ASSESSEE IN ITA NO.10/VIZAG /2015 FOR THE ASSESSMENT YEAR 2011-12 IS ALLOWED FOR STATISTICAL PURPOSES . THE APPEAL FILED BY THE REVENUE IN ITA NO.39/VIZAG/2015 IS DISMISSED. 18. THE ASSESSEE HAS FILED STAY APPLICATION, SEEKIN G STAY OF OUTSTANDING DEMAND FOR THE ASSESSMENT YEAR 2009-10, 2010-11 & 2011-12. SINCE, THE APPEALS FILED FOR THE ABOVE PE RIODS HAVE BEEN DISPOSED OFF, THE STAY PETITIONS FILED BY THE ASSES SEE BECOMES INFRUCTUOUS AND HENCE, THE SAME ARE DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12 TH AUG16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 12.08.2016 VG/SPS ITA NOS.6, 8, 10 & 39/VIZAG/2015 & SP NOS.38,40&42/ VIZAG/2015 DR. VEMPALA BALA MANOHAR, VISAKHAPATNAM 24 )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT DR. VEMPALA BALA MANOHAR, D.NO.1 8-1-27, HARITHA SAPTAGIRI PLAZA, K.G.H. DOWN, VISAKHAPATNAM 2. / THE RESPONDENT THE ITO, WARD-1(3), VISAKHAPATN AM 3. + / THE CIT, VISAKHAPATNAM 4. + ( ) / THE CIT (A), VISAKHAPATNAM, 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , # / ITAT, VISAKHAPATNAM