Shri Mahendrakumar G Mehta (HUF), Surat V. The Income Tax Officer Wd. 9(3), Surat

ITA 950/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6067 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 21-07-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P R GHOSH
• Assessee Lawyers: RASESH SHAH
• Keywords: Gift; Income from undisclosed sources; Difference of opinion; Onus to prove
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND A. MOHAN ALAN KAMONY, AM) ITA NO.950/AHD/2009 A. Y.: 2005-06 SHRI MAHENDRAKUMAR G. MEHTA (HUF), PROP. MAHENDRA TEXTILES, B/15, SHIBAM APARTMENT, SUMUL DAIRY ROAD, SURAT VS THE INCOME TAX OFFICER, WARD 9 (3), AAYAKAR BHAVAN, MAJURA GATE, SURAT PA NO. AACHM 1832 J (APPELLANT) (RESPONDENT) APPELLANT BY SHRI RASESH SHAH, AR RESPONDENT BY SHRI P. R. GHOSH, DR O R D E R PER BHAVNESH SAINI: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-V, SURAT DATED 24 TH DECEMBER, 2008, FOR ASSESSMENT YEAR 2005-06, CHALLE NGING THE ADDITION OF RS.75,000/- U/S 68 OF THE IT ACT FOR AL LEGED GIFT RECEIVED. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE RECEIVED GIFT AMO UNTING TO RS.75,00O/- FROM SMT. MANJUDEVI RAMESHKUMAR TATER. THE AO MADE THE ADDITION OF RS. 75 , 000/- TREATING GIFT AS BOGUS. DURING THE COURSE OF ASSESSMENT PROCEEDING, ASSESSEE FURNISHED GIFT DEED AND BANK STATEMENT OF THE DONOR IN SUPPORT OF GIFT RECEIVED OF RS. 75, 000/-. THE AO ISSUED SHOW NOTICE DATED 05-09-2007 AS TO WHY THE SO-CALLE D GIFT OF RS.75,000/- SHOULD NOT BE TREATED AS BOGUS AND THE SAME SHOULD NOT ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 2 BE ADDED TO INCOME U/S 68 OF THE IT. ACT. THE AO AS KED THE ASSESSEE TO PRODUCE THE DONOR FOR VERIFICATION. HOWEVER, THE ASSESSEE FAILED TO PRODUCE THE DONOR BEFORE AO. THE AO TREATED THE SU M OF RS.75,000/- BEING GIFT RECEIVED AS UNEXPLAINED CAS H CREDIT U/S 68 OF THE IT ACT AND MADE THE ADDITION OF THE SAME TO THE INCOME OF THE AS PER HIS FINDINGS GIVEN AT PARA 3.1 AND 3.2 OF THE ASSESSMENT ORDER. BEFORE THE LEARNED CIT(A) THE LEARNED COUNSEL FOR T HE ASSESSEE MADE THE FOLLOWING SUBMISSIONS: 'IN THE COURSE OF ASSESSMENT PROCEEDINGS IT IS SUBM ITTED THAT THE DONOR - MANJUDEVI R. TATTAR IS ASSESSED TO TAX AND GIFT HAS BEEN GIVEN BY HER OUT OF NATURAL LOVE AND AFFECTION TOWARDS FAMILY MEMBERS OF ASSESSEE. IN TH E COURSE OF ASSESSMENT PROCEEDINGS ASSESSEE FILED COP Y OF GIFT DECLARATION AND ALSO BANK STATEMENT OF DONOR I N SUPPORT OF THE GIFT MADE BY THE DONOR. THE GIFT HAS BEEN RECEIVED THROUGH ACCOUNT PAYEE CHEQUE AND ASSESSEE ALSO FILED COPY OF INCOME TAX RETURN, CAPITAL A/C, BALANCE SHEET ETC. OF THE DONOR. THE ASSESSING OFFICER HAS MADE THE ADDITION FOR REASON THAT DONOR HAS DEPOSITED CA SH OF RS.31,000/- IN HER BANK A/C AND FURTHER THERE IS TR ANSFER ENTRY OF RS.20000/- WHICH IS CLAIMED BY ASSESSING O FFICER AS BEING TRANSFERRED FROM INDIVIDUAL A/C OF KARTA. IN THIS REGARD, IT IS SUBMITTED THAT THE AMOUNT OF RS.20000 /-WHICH HAS BEEN GIVEN BY SHRI MAHENDRAKUMAR G. MEHTA (IND. ) IS ON ACCOUNT OF REPAYMENT OF LOAN GIVEN BY THE DON OR MANJUDEVI R. TATTAR TO SHRI MAHENDRAKUMAR G. MEHTA (IND.). IT -WAS EXPLAINED IN THE COURSE OF ASSESSME NT PROCEEDINGS THAT THE PROPRIETARY CONCERN OF MAHENDRAKUMAR G. MEHTA (IND.) RECEIVED LOAN OF RS.20000/- FROM M/S BHERU TRADERS (PROPRIETARY CONC ERN OF MANJUDEVI R. TATTAR) AND THE SAID LOAN WAS REPAI D THROUGH ACCOUNT PAYEE CHEQUE BY SHRI MAHENDRAKUMAR G. MEHTA (IND.). HERE IT IS TO BE NOTED THAT ASSESS EE HAS ALSO FILED LETTER DATED 12.09.2007 EXPLAINING THE N ATURE OF GIFT WHICH IS FILED ON THE RECORD OF ASSESSING OFFI CER ON ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 3 17.09.2007. BUT IT APPEARS THAT THE SAME HAS NOT BE EN CONSIDERED BY ASSESSING OFFICER AS THE ASSESSMENT O RDER HAS BEEN PASSED ON 14.09.2007. HOWEVER, IT IS PERTI NENT TO MENTION THAT THE ASSESSEE RECEIVED ORDER ONLY ON 18.09.2007. AS SUCH THE TRANSACTION OF RS.20000/- I S ON ACCOUNT OF BONAFIDE REPAYMENT OF LOAN AND NOT THE TRANSFER OF ANY UNACCOUNTED INCOME OF ASSESSEE TO T HE DONOR. THE ASSESSING OFFICER HAS COMPLETELY MISUNDERSTOOD THE NATURE OF TRANSACTION AND MADE TH E ADDITION. AS REGARDS THE CASH DEPOSIT OF RS.3,1000/- IT IS SUBMITTED THAT DONOR WAS HAVING SUFFICIENT CASH BAL ANCE IN HER HAND & OUT OF THE SAME, DEPOSIT IS MADE BY H ER IN HER BANK ACCOUNT. IT IS PERTINENT TO MENTION HERE T HAT THE DONOR IS ASSESSED TO TAX SINCE PAST MORE THAN 20 YE ARS AND IN SUPPORT OF THIS CONTENTION, INTIMATION ISSUE D BY I.T. DEPARTMENT FOR ASSESSMENT YEAR 1985-86 IS ENCLOSED HEREWITH. THE ABOVE FACT CLEARLY MANIFESTS THAT THE CAPACITY OF DONOR TO DEPOSIT CASH OF RS. 31000/- IN HER BANK ACCOUNT CANNOT AT ALL BE DOUBTED. THE ASSESSIN G OFFICER HAS ALSO NOT BROUGHT ANY EVIDENCE ON RECORD WHICH INDICATES THAT ABOVE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF DONOR HAS ACTUALLY COME FROM THE COFFERS OF ASSESSEE. IN VIEW OF THE ABOVE, ASSESSING OFFICER HAS GROSSLY ERRED IN JUMPING TO CONCLUSION THAT AMOUNT OF RS. 75,OOO/- HAS BEEN DEPOSITED BY ASSESSEE IN THE BANK ACCOUNT OF MANJUDEVI R. TATTAR AND THIS IS MOR E SO WHEN THE TOTAL DEPOSIT IN BANK ACCOUNT MADE BY DONO R PRIOR TO MAKING GIFT TO ASSESSEE IS ONLY RS.51000/- (CASH + CHEQUE) & NOT RS. 75, OOO/- AS ALLEGED BY ASSESSING OFFICER. AS DONOR IS RELATIVE OF FAMILY MEMBERS OF ASSESSEE, THE GIFT OF SMALL AMOUNT OFRS.75000/- CAN NOT BE DISBELIEVED IN ABSENCE OF ANY CONTRARY EVIDENCES . IT WAS FURTHER SUBMITTED THAT IN LIGHT OF THE EVIDE NCES FIELD BY THE ASSESSEE IT IS CLEAR THAT THE ASSESSEE HAS PROPERLY DISCHARGED THE BURDEN CAST ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 4 UPON HIM AND THUS ONUS IS ON THE AO TO BRING ANY OT HER COGENT MATERIALS ON RECORD IN SUPPORT OF HIS CONTENTION TH AT THE GIFT IS NOT GENUINE AND THAT THE ASSESSEE COULD NOT PRESSURIZE THE DONOR TO APPEAR BEFORE THE AO AS THEY ARE ALREADY UNDER THE OBLIGATION OF DONOR ON ACCOUNT OF RECEIPT OF GIFT. THE CASE LAWS RELIED BY THE AO ARE NOT AT ALL APPLICABLE TO THE FACTS OF THE INSTA NT CASE AS IT DEALS WITH ONLY GENERAL PRINCIPLE AS TO WHEN THE ADDITION CAN BE MADE U/S 68 OF THE I.T ACT. THE LEARNED COUNSEL FOR THE ASSESSEE F URTHER SUBMITTED THAT AS THE ASSESSEE HAS CLEARLY EXPLAINED THE BONA FIDES OF THE TRANSACTION THE, ADDITION MADE BY THE AO BE DELETE D. 3. THE LEARNED CIT(A) CONSIDERING THE EXPLANATION OF T HE ASSESSEE CONFIRMED THE ADDITION AND DISMISSED THE A PPEAL OF THE ASSESSEE. HIS FINDINGS ARE REPRODUCED AS UNDER: I HAVE GONE THROUGH THE CONTENTION OF THE APPELLAN T AS WELL AS THAT OF THE AO. AFTER GOING THROUGH THE SAME, I FIND THAT ASSESSEE COULD NOT PRODUCE THE DONOR FOR EXAMINATION ALTHOUGH ASSESSING OFFICER SPECIFICALLY ASKED TO PRODUCE THE DONOR. MERELY BECAUSE THE AMOUNT IN QUESTION IS RECEIVED THROUGH ACCOUNT PAYEE CHEQUE & THE SAME IS SUPPORTED BY GIFT DEED, THE GENUINENESS OF GIFT CANNOT BE ACCEPTED. BESIDES THIS, ON EXAMINATION OF BANK ACCOUNT, IT WAS ALSO FOUND BY ASSESSING OFFICER TH AT CASH HAS BEEN DEPOSITED PRIOR TO MAKING OF GIFT TO & FU RTHER THERE WAS TRANSFER ENTRY OF RS. 20,000/- FROM THE A CCOUNT OF MAHENDRAKUMAR G. MEHTA (INDIVIDUAL). EVEN IF THE CLAIM OF APPELLANT THAT THE SAID TRANSFER OF FUNDS FROM THE ACCOUNT OF MAHENDRAKUMAR G. MEHTA (IND.) IS ON ACCO UNT OF REPAYMENT OF LOAN TAKEN BY HIM IS ACCEPTED, THE TRANSACTION OF GIFT DOES NOT STAND PROVED BEYOND AN Y SHADOW OF DOUBT IN VIEW OF THE FACT THAT CASH DEPOS ITS OF RS. 31,000/- & THE TRANSFER OF FUNDS FROM THE ACCOU NT OF ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 5 MAHENDRAKUMAR G. MEHTA (IND.) WERE MADE IMMEDIATELY BEFORE MAKING OF GIFT TO ASSESSEE. THUS, PREPONDERA NCE OF PROBABILITY SUGGESTS THAT ASSESSEE COULD NOT EST ABLISH THE GENUINENESS OF GIFT TRANSACTION BEYOND ANY OF D OUBT & HENCE, THE ADDITION BY ASSESSING OFFICER IS CONFIRM ED, 4. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND S TATED THAT THE DONOR IS NOT RELATED TO THE ASSESSEE. HE HAS REFERR ED TO ACKNOWLEDGEMENT OF RETURN OF INCOME FILED BY THE DO NOR, HER BALANCE SHEET, GIFT DECLARATION AND COPY OF BANK ACCOUNT AS ARE FILED IN THE PAPER BOOK. ON THE OTHER HAND, THE LEARNED DR RELIE D UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE FAILED TO PROVE GENUINE GIFT IN THE MATTER. THEREFORE, ADD ITION WAS MADE RIGHTLY AND CONFIRMED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSION AND MATE RIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE R ECEIVED THE ALLEGED GIFT FROM THE DONOR OF THE ABOVE AMOUNT. THE AO WAN TED TO VERIFY THE GENUINENESS OF THE GIFT IN THE MATTER AND ACCORDING LY DIRECTED THE ASSESSEE TO PRODUCE THE DONOR FOR VERIFICATION, HOW EVER, THE ASSESSEE FAILED TO PRODUCE THE DONOR BEFORE THE AO. THEREFORE, THE GENUINENESS OF GIFT COULD NOT BE VERIFIED FOR THE D EFAULT COMMITTED BY THE ASSESSEE. THE VERIFICATION OF THE GENUINENESS O F THE GIFT WAS ALSO REQUIRED BECAUSE IT WAS FOUND FROM THE VERIFICATION OF THE BANK PASS BOOK OF THE DONOR THAT CASH HAS BEEN DEPOSITED ON T HE SAME DAY FOR GIVING THE GIFT AND FURTHER THERE WAS A TRANSFER EN TRY FROM THE ACCOUNT OF SHRI MAHENDRAKUMAR MEHTA (INDIVIDUAL) IN FAVOUR OF THE DONOR. IN SUCH A SITUATION, IT WAS NECESSARY FOR THE ASSESSEE TO HAVE PRODUCED ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 6 THE DONOR BEFORE THE AO FOR EXAMINATION AND FOR VER IFICATION OF THE GENUINENESS OF THE GIFT IN THE MATTER. THE DEPOSIT OF THE CASH ON THE DATE OF THE GIFT IN THE BANK ACCOUNT AND TRANSFER F ROM THE PERSON RELATED WITH THE ASSESSEE (HUF) CREATES A DOUBT IN THE GENUINENESS OF THE GIFT IN THE MATTER. THE ASSESSEE HAS FAILED TO DISCHARGE ONUS TO PROVE GENUINE GIFT IN THE MATTER. IT IS ADMITTED FA CT THAT THE DONOR IS NOT RELATED TO THE ASSESSEE. THE ASSESSEE HAS FAILE D TO EXPLAIN THE NATURE AND PURPOSE OF THE GIFT. NO RELATIONSHIP, LO VE AND AFFECTION ARE PROVED. THE ASSESSEE FAILED TO PROVE THE CREDITWORT HINESS AND SOURCES OF THE GIFT IN THE MATTER. MERE FILING OF D ECLARATION OF GIFT WOULD NOT PROVE THE CREDITWORTHINESS OF THE DONOR AND SOU RCE OF MAKING THE GIFT. NO EVIDENCE OF REASON OR OCCASION OF GIFT HAS BEEN FILED ON RECORD. NO EVIDENCE OR MATERIAL SHOWING ANY LOVE AN D AFFECTION HAS BEEN FILED BEFORE THE AUTHORITIES BELOW. MERELY BEC AUSE GIFT WAS MADE THROUGH ACCOUNT PAYEE CHEQUE WOULD NOT PROVE G ENUINENESS OF THE GIFT IN THE MATTER. THUS, THE ASSESSEE FAILE D TO PROVE ALL THE BASIC INGREDIENTS OF GENUINE GIFT IN THE MATTER. SI NCE, NO SUFFICIENT EVIDENCE HAS BEEN FILED BEFORE THE AUTHORITIES BELO W TO PROVE GENUINENESS OF THE GIFT IN THE MATTER, THEREFORE, I T IS CLEAR THAT GIFT IN THE MATTER IS NOT GENUINE GIFT AND IS ARRANGED AFFA IRS OF THE ASSESSEE. IT MAY ALSO BE NOTED HERE THAT COPY OF THE ACKNOWLE DGEMENT OF RETURN OF INCOME OF THE DONOR IS FILED IN THE PAPER BOOK AT PAGE 5 WHICH SHOWS THAT THE DONOR HAS EARNED INCOME OF RS.70,092 /- BEING PROFIT FROM BHERU TRADERS AND INCOME FROM OTHER SOURCES I. E. INTEREST ETC. IN A SUM OF RS.27,427/-. THE MEAGER INCOME DISCLOSED B Y THE DONOR IN HER RETURN OF INCOME WOULD SHOW THAT SHE WAS NOT IN A POSITION TO GIVE THE GIFT OF RS.75,000/- TO THE ASSESSEE AND THAT TO O WITHOUT ANY ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 7 OCCASION OR REASONS AND THAT TOO TO THE PERSON WHO IS NOT RELATED TO THE DONOR. THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS ANIL KUMAR 292 ITR 552 HELD IN THE CASE OF GIFTS MERE IDENTIFICATION OF THE DONOR AND SHOWING THE MOVEMENT OF THE GIFT AMOU NT THROUGH BANKING CHANNELS IS NOT SUFFICIENT TO PROVE THE GEN UINENESS OF THE GIFT. SINCE THE CLAIM OF GIFT IS MADE BY THE AS SESSEE, THE ONUS LIES ON HIM NOT ONLY TO ESTABLISH THE IDENTITY OF THE PERSON MAKING THE GIFT BUT ALSO HIS CAPACITY TO MAKE SUCH A GIFT. IN ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 1995 -96 THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD RE CEIVED TWO GIFTS OF RS.10 LAKHS EACH FROM N. R. E. ACCOUNTS OF TWO DONORS, NAMELY V AND D. THE ASSESSING OFFICER FOUND THAT TH E ASSESSEE COULD NOT DISCHARGE HIS ONUS OF PROVING THE CREDIT- WORTHINESS OF THE DONORS AND HELD THAT THE AMOUNT OF RS.20 LAKHS WHICH HAD BEEN DECLARED BY THE ASSESSEE AS GIFT, WAS IN FACT HIS INCOME AND ADDED TO HIS TOTAL INCOME UNDER SECTION 68. THE ADDITION WAS DELETED BY THE COMMISSIONER (APPEALS) AND THIS WAS UPHELD BY THE TRIBUNAL. ON APPEAL TO THE HIGH COURT: HELD THAT THERE WAS NOTHING ON RECORD TO SHOW AS TO WHAT WAS THE FINANC IAL CAPACITY OF THE DONORS, WHAT WAS THE CREDIT-WORTHINESS OF TH E DONORS, WHAT KIND OF RELATIONSHIP THE DONORS HAD WITH THE A SSESSEE, WHAT WERE THE SOURCES OF FUNDS GIFTED TO THE ASSESS EE AND WHETHER THEY HAD THE CAPACITY OF GIVING LARGE AMOUN TS OF GIFT TO THE ASSESSEE. FURTHER, THE ASSESSEE WAS ASKED TO AP PEAR IN PERSON BEFORE THE ASSESSING OFFICER, BUT NEVER APPE ARED. THE ADDITION OF RS.20 LAKHS WAS JUSTIFIED. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS P. MOHANKALA 291 ITR 278 HELD THE ASSESSEE ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 8 RECEIVED FOREIGN GIFTS FROM ONE COMMON DONOR. THE P AYMENTS WERE MADE TO THEM BY INSTRUMENTS ISSUED BY FOREIGN BANKS AND CREDITED TO THE RESPECTIVE ACCOUNT OF THE ASSESSEES BY NEGOTIATION THROUGH A BANK IN INDIA. MOST OF THE CH EQUES SENT FROM ABOARD WERE DRAWN ON THE CITIBANK, N. A. SINGA PORE. THE EVIDENCE INDICATED THAT THE DONOR WAS TO RECEIVE SU ITABLE COMPENSATION FROM THE ASSESSEES. ON THIS MATERIAL T HE ASSESSING OFFICER HELD THAT THE GIFTS THOUGH APPARE NT WERE NOT REAL AND ACCORDINGLY TREATED ALL THOSE AMOUNTS WHIC H WERE CREDITED IN THE ACCOUNT BOOKS OF THE ASSESSEES AS T HEIR INCOME APPLYING SECTION 68 OF THE INCOME-TAX ACT, 1961. TH E ASSESSEES DID NOT CONTEND 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 BETWEEN T HE TWO MEMBERS OF THE APPELLATE TRIBUNAL AND THE MATER WAS REFERRED TO THE VICE PRESIDENT WHO CONCURRED WITH THE FINDINGS AND CONCLUSION OF THE ASSESSING OFFICER AND THE COMMISS IONER (APPEALS). ON APPEAL THE HIGH COURT RE-APPRECIATED THE EVIDENCE AND SUBSTITUTED ITS OWN FINDINGS AND CAME TO THE CO NCLUSION THAT THE REASONS ASSIGNED BY THE TRIBUNAL WERE IN T HE REALM OF SURMISES, CONJECTURE AND SUSPICION. ON APPEAL TO TH E SUPREME COURT: HELD, REVERSING THE DECISION OF HIGH COURT, THAT FINDINGS OF THE ASSESSING OFFICER, 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 BY WA Y OF BANK CHEQUES AND WAS PAID THROUGH THE PROCESS OF BANKING ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 9 TRANSACTION WAS NOT BY ITSELF OF ANY CONSEQUENCE. T HE HIGH COURT MISDIRECTED ITSELF AND ERRED IN DISTURBING TH E CONCURRENT FINDINGS OF FACT. HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF YASH PAL GOEL VS CIT 310 ITR 75 HELD THAT HELD, DISMISSING THE APPEAL THAT THE FINANCIAL POSITION O F M. SUGGESTED THAT HE NEITHER HAD THE CAPACITY TO MAKE THE GIFT N OR THE SOURCE FROM WHERE THE GIFT WAS MADE. NO REASON WHATSOEVER HAD BEEN ASSIGNED FOR GIFTING SUCH A HUGE AMOUNT BY M TO THE ASSESSEE. M NEVER VISITED THE HOME OF THE ASSESSEE AND HENCE THERE WAS NO LOVE AND AFFECTION. IT WAS NOTHING BUT A SUBTERF UGE TO AVOID INCOME-TAX. THE TRANSACTIONS WERE NOT GENUINE ONES . 6. CONSIDERING THE ABOVE DISCUSSIONS, IT IS CLEAR T HAT THE ASSESSEE FAILED TO PROVE ANY RELATION WITH THE DONOR AND HER CREDITWORTHINESS. NO SUFFICIENT EVIDENCE OR MATERIAL IS FILED ON RECO RD TO PROVE THE GENUINENESS OF THE GIFT IN THE MATTER. MERELY SHOWI NG GIFT WAS MADE THROUGH BANKING CHANNEL IS NOT SUFFICIENT TO PROVE GENUINENESS OF THE GIFT IN THE MATTER. THE HONBLE SUPREME COURT IN TH E CASE OF DURGA PRASAD MORE 82 ITR 540 AND IN THE CASE OF SUMATI DA YAL 214 ITR 801 HELD THAT COURTS OF TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HUMAN PROBABILI TIES. IF THE SAID TEST IS APPLIED IN THIS MATTER, IT IS CLEARLY ESTABLISHED THAT THE ASSESSEE HAS FAILED TO PROVE GENUINE GIFT IN THE MA TTER. WE ACCORDINGLY, DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE SAME IS ACCORDINGLY DISMISSED. ITA NO.950/AHD/2009 SHRI MAHENDRAKUMAR G. MEHTA (HUF) VS ITO, WARD -9(3 ), SURAT 10 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22-07-2011 SD/- SD/- (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 22-07-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD