Shri Mithun N.Kapadia, Surat V. The ACIT.,Cent.Circle-4, Surat

ITSSA 153/AHD/2011

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2863 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 12-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 09-01-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 22-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S SAMPATH
• Keywords: Unexplained investment; Gift; Opportunity of being heard; Peak credit; Deemed to accrue or arise in india; Revised return
• Section: 143(3); 153A; 69; 132; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD . . , , BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.(SS)(A)NO. 153/AHD/2011 ( / ASSESSMENT YEAR : 2004-05 ) SHRI MITHUN N. KAPADIA 3/1810, GHAMLAWAD, SHERI NO.1, GHAMLAWAD, SURAT. / VS. THE ASSTT. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-4, SURAT ./ ./ PAN/GIR NO. : AIEPK 8406 C ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S. SAMPATH, A.R. / RESPONDENT BY : SHRI SANJAY AGRAWAL, CIT D.R. / DATE OF HEARING 09/01/2017 / DATE OF PRONOUNCEMENT 12/01/2017 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)- II, AHMEDABAD, DATED 13/12/2010 FOR THE ASSESSMENT YEAR (AY) 2004-05 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: (I). THAT ON FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A)-II HAS ERRED IN- - CONFIRMING THE ADDITION MADE BY AO ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS.1,70,996/- MADE IN BANK ACCOUNT OF THE APPELLANT. ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 2 - - WITHOUT CONSIDERING THE FACT THAT THE AMOUNT DEPOSITED IN THE BANK ACCOUNT COMPRISES MAINLY OF GIFTS RECEIVED FROM RELATIVES. - AND THE DOCUMENTARY EVIDENCE OF WHICH HAS BEEN SUBMITTED TO THE LEARNED CIT(A)-II AS WELL AS THE AO DURING THE COURSE OF APPELLATE/ASSESSMENT PROCEEDINGS. (II). THAT ON THE FACTS AND CIRCUMSTANCES THE CIT(A)-II HAS ERRED IN SUSTAINING THE ACT OF THE AO OF NOT DOING TELESCOPING IN THE APPELLANTS CASE- - OF THE DISCREPANCY IF ANY REMAINING UNIDENTIFIED IN THE HANDS OF SHRI NAGINBHAI KAPADIA AND / OR SHRI ASHOKBHAI JARIWALA AS CATEGORICALLY MENTIONED BY THEM IN NOTES FILED WITH THEIR REVISED RETURN U/S. 153A STATING THAT- - THE CONDITIONAL DISCLOSER MADE THEREIN IS A FIRST HAND APPROXIMATION WHICH MAY VARY WITHIN THE OVERALL AMOUNT DECLARED AT THE TIME OF ASSESSMENT PROCEEDINGS OR APPELLATE OR REVISION PROCEEDINGS AND - THE AMOUNT OF CONDITIONAL DISCLOSURE REMAINING SPECIFICALLY UNIDENTIFIED MAY BE TELESCOPED AGAINST ANY ADDITION OR DISALLOWANCE OF ANY EXPENSES OR DEDUCTION OR OTHERWISE MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS OR APPELLATE OR REVISION PROCEEDINGS IN THE HANDS OF FAMILY MEMBERS OR ANY GROUP CONCERNS FOR THE PERIOD COVERED UNDER THE NOTICE ISSUED U/S.153A/153C OF THE ACT. (III). THAT THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO BE DIRECTED TO CARRY OUT APPEAL EFFECTS CONSEQUENT TO THE PRESENT APPEAL ALSO IN THE CASE OF SHRI ASHOKBHAI JARIWALA AND SHRI NAGINBHAI KAPADIA ON THE MATTER BEING FINALLY SETTLED. 2. THE FACTS OF THE CASE ARE THAT ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURE AND SALE OF ZARI KASAB AND WOVEN-SARI FABRICS. DURING THE PRE-SEARCH INVESTIGATIONS, IT WAS GATHERED BY THE DEPARTMENT THAT THE GROUP IS ENGAGED IN UNACCOUNTED PRODUCTION FABRICS AND UNACCOUNTED RENTAL RECEIPTS FROM UNDER-INVOICED EMBROIDERY MACHINES. THE MODUS OPERANDI OF THE GROUP IS TO SUPPRESS PRODUCTION AT MANUFACTURING UNITS ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 3 - AND ALSO HIDE SALES AND PURCHASES IN THE SECOND-STAGE PROCESSING AND RETAIL UNITS AND EVADE THE DUE TAX. 3. SEARCH OPERATION U/S 132 OF THE INCOME-TAX ACT, 1961 WERE CONDUCTED ON 14 TH DEC, 2005 AT THE RESIDENTIAL PREMISES OF THE ASSOCIATES OF THE ASSESSEE. DURING THE COURSE OF SEARCH AND SURVEY OPERATIONS, SEVERAL INCRIMINATING DOCUMENTS WERE FOUND AND SEIZED/IMPOUNDED. 4. IN LIGHT OF THE ABOVE FACTS AND CIRCUMSTANCES, AND AFTER CAREFULLY GOING THROUGH THE SEIZED MATERIALS AND RETURN OF INCOME, BOOKS OF ACCOUNTS AND OTHER DOCUMENTS FURNISHED BY THE ASSESSEE, THE ASSESSEE WAS REQUESTED VIDE LETTER NO.SRT/AC-CC4/SEARCH ASMT/MNK/FSCN/2006- 07, DATE: 18/12/2007, TO FURNISH THE SOURCE OF CERTAIN CREDIT IN ITS BOOKS OF ACCOUNTS AS UNDER: ..THE BANK ACCOUNTS AS MENTIONED BELOW HAVE NOT BEEN REFLECTED IN THE RETURN OF INCOME AND THE ACCOMPANYING BALANCE SHEET. ALSO THE INTEREST FROM THE BANK ACCOUNT HAS NOT BEEN OFFERED IN THE PROFIT & LOSS ACCOUNT OR THE COMPUTATION OF INCOME SHEET. ALSO THAT THE INTEREST FROM THE BANK ACCOUNT WAS NOT BEEN OFFERED IN THE COMPUTATION OF INCOME DURING THE RELEVANT A.Y.S OF HOLDING THE ACCOUNTS, WHICH ESTABLISHED THAT THE ACCOUNT WAS HELD IN AN UNDISCLOSED MANNER, AND INCOME THEREFROM AND INVESTMENT WERE CONCEALED. THEREFORE, IT IS EVIDENT THAT THE ACCOUNT HAS BEEN MAINTAINED AND OPERATED IN AN UNDISCLOSED MANNER AND THE TRANSACTIONS AND INVESTMENTS THERE IN HAVE NOT BEEN DISCLOSED OR EXPLAINED BEFORE THE DEPARTMENT. FURTHER, THE EXPLANATION TO SECTION 139 MANDATES THAT IN THE CASE OF A PROPRIETARY BUSINESS OR PROFESSION, RETURN OF INCOME MUST BE ACCOMPANIES BY THE PERSONAL ACCOUNT OF THE PROPRIETOR. THEREFORE, THE IMPUGNED BANK ACCOUNTS HAVE NOT BEEN DISCLOSED IN THE RETURN OF INCOME AND THE INTEREST THEREON HAS NOT BEEN OFFERED TO TAX, IT IS EVIDENT THAT THE BANK ACCOUNT HAS BEEN MAINTAINED AND OPERATED IN A CONCEALED MANNER. FURTHER, KINDLY NOTE THAT THERE HAS BEEN FAILURE TO EXPLAIN THE INVESTMENT MADE IN THIS BANK ACCOUNT IN RESPONSE TO NOTICE U/S 142(1), DATED 11.10.2007. ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 4 - THE DETAILS OF THE INVESTMENT MADE IN THESE BANK ACCOUNTS ARE AS UNDER:- NAME BANK NAME A/C NO. F.Y. 2005-06 F.Y. 2004-05 F.Y. 2003-04 F.Y. 2002- 03 MITHUN N. KAPADIA CENTURION BANK OF PUNJAB 94207 1125 20144 1585 405000 MITHUN NAGINDAS PANCHSHEEL CO-OP BANK LTD. 4922 19 36 171027 MITHUN N. KAPADIA STATE BANK OF SAURASTRA 3247 81 72 77 2153 MITHUN N. KAPADIA CENTURION BANK OF PUNJAB 0041- 097690- 020 501000 MITHUN NAGINDAS CENTURION BANK OF PUNJAB 0041- 097734- 020 1001000 MITHUN N. KAPADIA CENTURION BANK OF PUNJAB 0041- 094207- 001 16,076 19,914 5499 406000 MITHUN N. KAPADIA CENTURION BANK OF PUNJAB 0041- 097715- 051 553587 TOTAL 813153 INCREMENTAL PEAKS TOTAL F.Y.05-06 1125 19 81 501000 1001000 16076 553587 2072888 F.Y.04-05 19019 17 22874 F.Y.03-04 170991 5 0 0 0 170996 F.Y.02-03 403415 2076 0 0 400501 0 805992 TOTAL 3072750. HENCE, THESE PEAK CREDIT INVESTMENTS ARE AMOUNTS WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT AND HENCE ARE LIABLE TO BE DEEMED TO BE THE INCOME FOR RELEVANT FINANCIAL YEARS U/S 69 OF THE INCOME-TAX ACT 1961. SECTION 69 OF THE INCOME-TAX ACT, 1961 PROVIDES THE FOLLOWING: ..WHERE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR THE ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT, IF ANY, MAINTAINED BY HIM FOR ANY SOURCE OF INCOME, AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVESTMENTS OR THE EXPLANATION OFFERED BY HIM IS NOT, IN THE OPINION OF THE [ASSESSING OFFICER, SATISFACTORY, THE VALUE OF THE INVESTMENTS MAY BE DEEMED TO BE THE INCOME OF THE ASSESSEE OF SUCH FINANCIAL YEAR. THUS, THE AGGREGATE OF INCREMENTAL PEAK CREDIT AMOUNTS ARE ADDED U/S.69 OF THE INCOME-TAX ACT, 1961 AS UNEXPLAINED INVESTMENT. THEREFORE, THE PEAK AMOUNT IS LIABLE TO BE TREATED AS DEEMED INCOME U/S69 OF THE INCOME TAX ACT, 1961 FOR THE RELEVANT ASSESSMENT YEARS. IN THIS CASE, THE REQUIREMENTS OF THE PROVISIONS OF SECTION 69 ARE CLEARLY SATISFIED. THUS, IT IS EVIDENT THAT SUMS OF RS.20,72,888/- OR A.Y. 2006-07, RS.22,874/- FOR A.Y. 2005-06, RS.1,70,996/- FOR A.Y. 2004-05 AND RS.8,05,992/- FOR A.Y. 2003-04 HAVE ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 5 - BEEN HELD IN UNACCOUNTED MANNER FOR WHICH NO SOURCE HAS BEEN SPECIFIED . THEREFORE, YOU ARE REQUESTED TO SHOW CAUSE WHY SUCH AMOUNTS SHOULD NOT BE ADDED U/S 69 OF THE INCOME-TAX ACT, 1961.. THERE WAS REPLY TO THE ABOVE-SAID SHOW-CAUSE NOTICE BY THE ASSESSEE BY WAY OF EXPLANATION SUBMITTED THROUGH LETTER NO. NIL, DATED 27.12.2007. THE RELEVANT PORTION OF THE REPLY IS AS UNDER: YOUR HONOUR HAD ASKED ME TO SHOW CAUSE WHY AGG. INCREMENTAL PEAK OF VARIOUS BANK ACCOUNTS SHOULD NOT BE TREATED AS TAXABLE INCOME IN ABSENCE OF DETAILS OF TRANSACTIONS WHICH HAD TAKEN PLACE IN THE SAID BANK ACCOUNT AND IN THIS REGARD, I WOULD LIKE TO SUBMIT HEREWITH AS ANNEXURE-12, THE COMPLETE DETAILS OF ADDITION MADE TO FOLLOWING BANK ACCOUNTS AS ASKED BY YOUR HONOUR WITH DOCUMENTARY EVIDENCES OF THE SAME: 1. BANK ACCOUNT NO. 0041-097690-051 WITH CENTURIAN BANK 2. BANK ACCOUNT NO. 0041-097734-020 WITH CENTURIAN BANK 3. BANK ACCOUNT NO. 0041-094207-001 WITH CENTURIAN BANK 4. BANK ACCOUNT NO. 0041-097715-051 WITH CENTURIAN BANK 5. BANK ACCOUNT NO. 4922 WITH PANCHSHEEL CO-OP. BANK 6. BANK ACCOUNT NO. 3247 WITH STATE BANK OF SAURASHTRA ON GOING THROUGH THE SAME, YOUR HONOUR WILL APPRECIATE THAT THE NATURE AND SOURCE OF ADDITION STAND FULLY EXPLAINED AND IT IS NOT IN THE FORM OF UNACCOUNTED SALES WHOSE INCREMENTAL PEAK BE ADDED AS TAXABLE INCOME AND HENCE YOUR HONOUR MAY FEEL JUSTIFY IN NOT ADDING THE SAME AS UNEXPLAINED INVESTMENT. 5. BUT WITH THE EXPLANATION GIVEN BY THE ASSESSEE, LD. A.O. WAS NOT SATISFIED AND HELD THAT ASSESSEE HAS MADE INVESTMENTS WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNTS. THE EXPLANATION ABOUT THE NATURE AND SOURCE OF THE INVESTMENTS OFFERED BY ASSESSEE IS NOT SATISFACTORY IN THE OPINION OF THE ASSESSING OFFICER. 6. IN THE INSTANT CASE, THE FUNDS INVESTED IN THE BANK ACCOUNTS IS NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND THE EXPLANATION OFFERED BY THE ASSESSEE, IN CONSIDERED OPINION, IS NOT SATISFACTORY. THUS ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 6 - THE BOOKS OF ACCOUNTS PRODUCED BY THE ASSESSEE ARE REJECTED, BEING INCOMPLETE AND UNRELIABLE, FOR THE PURPOSE OF BRINGING THE UNEXPLAINED INVESTMENT TO TAX. RELIANCE IS PLACED ON THE CASE OF UNIT CONSTRUCTION CO.LTD. V. JT. CIT [2003] 260 ITR 189 (CAL). 7. IN LIGHT OF THE ABOVE, THE AGGREGATE OF INCREMENTAL PEAK CREDIT AMOUNTS ARE LIABLE TO BE DEEMED TO BE THE INCOME FOR RELEVANT FINANCIAL YEAR U/S 69 OF THE INCOME TAX ACT, 1961 AS UNEXPLAINED INVESTMENT. THEREFORE, THE PEAK AMOUNT TO BE TAKEN AS DEEMED INCOME U/S 69 OF THE INCOME TAX ACT, 1961 FOR THE RELEVANT FINANCIAL YEAR. THEREFORE, SUCH AMOUNT OF RS. 20,72,888/- IS ADDED TO TAXABLE INCOME U/S 69 OF THE INCOME TAX ACT 1961. THUS FROM THE ABOVE DISCUSSION IT IS EVIDENT THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS UNDER-REPORTING THE INVESTMENT IN BANKS AND ON ACCOUNT OF INCOME DEEMED TO HAVE ACCRUED/ARISEN TO HIM. THE ENSURING INCOME HAS BEEN UNDER- REPORTED BY THIS FURNISHING OF INACCURATE PARTICULARS AND HENCE THERE HAS BEEN RESULTANT CONCEALMENT OF INCOME. THEREFORE, SATISFIED ON ACCOUNT OF THESE REASONS AS ABOVE, PENALTY PROCEEDINGS U/S. 271(1)(C) IS BEING INITIATED FOR FURNISHING INACCURATE PARTICULARS OF INCOME AND THEREBY LEADING TO CONCEALMENT OF INCOME. ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT RS. 1,70,996/- WITH THE ABOVE DISCUSSION OF THE FACTS AND AFTER CAREFULLY SCRUTINIZING THE DETAILS FILED, THE TOTAL INCOME OF THE ASSESSEE IS RE-COMPUTED AS UNDER:- PARTICULARS IN RS. TOTAL INCOME AS PER COMPUTATION OF INCOME 2,94,046/- ADD: DISALLOWANCE/ADDITION AS DISCUSSED ABOVE: ADDITION ON ACCOUNT OF UNEXPLAINED 1,70,996/- ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 7 - INVESTMENT TOTAL DISALLOWANCE/ADDITION 1,70,996/- TOTAL INCOME 4,65,042/- TOTAL INCOME ROUNDED OFF U/S 288A 4,65,040/- 8. ASSESSED UNDER SECTION 143(3) R.W.S 153 C OF THE INCOME TAX ACT, 1961. ISSUE NOTICE U/S. 274 R.W.S. 271(1)(C) OF THE I.T. ACT FOR INITIATING PENALTY PROCEEDINGS. GIVE DUE CREDIT FOR PREPAID TAXES, IF ANY, AFTER PROPER VERIFICATION. ISSUE DEMAND NOTICE AND CHALLAN. INTEREST U/S. 234A IS CHARGED FOR LATE FILING OF RETURN OF INCOME AND DUE INTEREST U/S. 234 B OF THE INCOME TAX ACT, 1961 IS CHARGED FOR DEFAULT IN PAYMENT OF ADVANCE TAX AS PER ITNS 150 ENCLOSED. THIS ORDER IS ISSUED WITH THE PRIOR APPROVAL OF THE ADDL.C.I.T., CENTRAL RANGE, SURAT, OBTAINED VIDE LETTER NO. SRT/ADDL. CIT/153D/2007-08, DATE: 31/12/2007. FINALLY THE TOTAL INCOME INCLUDING INTEREST WAS ASSESSED RS.76,359/- 9. AGAINST THE SAID ASSESSMENT ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD.CIT(A), WHO PARTLY ALLOWED THE APPEAL AND NOW ASSESSEE IS BEFORE US. BEFORE THE LD. CIT(A) ASSESSEE HAS MADE FOLLOWING SUBMISSION: FOR A.Y.2003-04, THE ASSESSING OFFICER HAS ERRED IN COMPUTING THE FIGURE OF RS.8,05,992/-BY MAKING DOUBLE ADDITION OF THE AMOUNT DEPOSITED IN BANK ACCOUNT NUMBER 94207 MAINTAINED WITH CENTURIAN BANK LIMITED. HE HAS TAKEN THE FIGURE OF RS.4,03,415/- AGAINST ACCOUNT NUMBER 94207 AND AGAIN TAKEN AN AMOUNT OF RS.4,00,501/- AGAINST THE ACCOUNT NUMBER 0041-094207 OF CENTURIAN BANK OF PUNJAB WHICH IS THE SAME ACCOUNT. SIMILARLY FOR A.Y. 2005-06, AN AMOUNT OF RS.19,019/- AND AN AMOUNT OF RS.3,838/- IS TAKEN FOR SAME ACCOUNT ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 8 - NUMBER 94207 OF CENTURIAN BANK. IT WAS FURTHER SUBMITTED THAT FOR A.Y.2003-04, GIFT OF RS.2,00,000/- WAS RECEIVED FROM SHRI HARILAL ATMARAM JARIWALA AND GIFT OF RS.2,00,000/- AND RS.70,000/- WAS RECEIVED FROM SHRI DEEPAK KUMAR JETHALAL AND THEIR CONFIRMATION AND COPY OF I.T. RETURN WERE FILED. HENCE, NO ADDITION IS CALLED FOR AND THE ADDITION SHOULD BE DELETED. 10. I HAVE CONSIDERED THE FACTS AND THE SUBMISSIONS. I FIND THAT THE ASSESSING OFFICER HAS TAKEN TWICE THE AMOUNT FOR THE SAME BANK ACCOUNT NUMBER 94207 OF CENTURAIN BANK HENCE, TO THIS EXTENT; THE ADDITION IS NOT JUSTIFIED BEING THE DUPLICATE ADDITION. ACCORDINGLY, THE ADDITION OF RS.4,00,501/- FOR A.Y. 2003-04 AND RS.3,838/- FOR A.Y. 2005-06, IS DELETED. HOWEVER, FOR THE BALANCE AMOUNT, IT IS HELD THAT THE APPELLANT HAS NOT PROVED THE DEPOSITS SATISFACTORILY. THE COPY OF THE INCOME-TAX RETURN FILED IN RESPECT OF HARILAL ATMARAM JARIWALA AND DEEPAK KUMAR JETHALAL SHOWS THAT THEY WERE EARNING VERY LOW INCOME AND ALSO COPY OF THEIR BANK ACCOUNT HAS NOT BEEN FILED FROM WHICH THE AMOUNTS WERE GIVEN. HENCE, THE CREDIT WORTHINESS IS NOT PROVED. ACCORDINGLY, THE ASSESSING OFFICER WAS JUSTIFIED IN MAKING THE ADDITION FOR THE BALANCE AMOUNTS WHICH IS UPHELD. 11. THE SECOND GROUND IS THAT THE A.O. HAS NOT GIVEN PROPER OPPORTUNITY OF BEING HEARD. THIS GROUND IS REJECTED AS I FIND THAT THE A.O. HAS ALREADY GIVEN ADEQUATE OPPORTUNITY OF BEING HEARD BEFORE PASSING THE ASSESSMENT ORDER. 12. THE NEXT GROUND IS THAT TELESCOPING SHOULD BE ALLOWED WITH THE INCOME OF THE APPELLANT WITH SHRI NAGINBHAI KAPADIA AND/OR SHRI ASHOKBHAI JARIWALA OF THE CONDITIONAL DISCLOSURE FOR THE PERIOD COVERED U/S.153A/153C OF THE ACT. ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 9 - THIS PLEA OF THE APPELLANT IS NOT ACCEPTABLE AS EACH ASSESSEE IS DIFFERENT AND EACH ASSESSMENT YEAR IS DIFFERENT AND TELESCOPING CANNOT BE ALLOWED UNLESS SPECIFIC NEXUS IS SHOWN. HENCE, THIS GROUND OF APPEAL IS REJECTED. 13. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGNED ORDER AND WRITTEN SUBMISSION FILED BY THE ASSESSEES REPRESENTATIVE AND SYNOPSIS FILED BY THE DEPARTMENT, WE ARE OF THE CONSIDERED OPINION THAT GIFTS IN UNRECORDED BANK ACCOUNT AND KEPT THE TRANSACTION UNDER WRAP. ASSESSEE HAS MADE INVESTMENT, WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNTS. THEORY OF GIFT IS AN AFTERTHOUGHT. LOW INCOME OF DONORS-CREDITWORTHINESS NOT PROVED AS IT HAS BEEN HELD IN THE CASE OF SANDEEP KUMAR HUF VS. CIT 293 ITR 294(DEL): THE DONOR AND SHOWING MOVEMENT OF THE GIFT AMOUNT THROUGH BANKING CHANNELS IS NOT SUFFICIENT TO PROVE THE GENUINENESS OF THE GIFT. SINCE THE CLAIM OF THE GIFT IS MADE BY THE ASSESSEE, THE ONUS LIES ON HIM TO ESTABLISH NOT ONLY THE IDENTITY OF THE PERSON MAKING THE GIFT BUT ALSO HIS CAPACITY TO MAKE SUCH A GIFT. HONBLE DELHI HIGH COURT DISMISSING THE APPEAL, THAT THERE WAS NOTHING ON RECORD TO SHOW THE FINANCIAL CAPACITY OF THE DONOR, THE CREDITWORTHINESS OF THE DONOR, RELATIONSHIP OF THE DONOR WITH THE ASSESSEE, WHAT WERE THE SOURCES OF FUNDS GIFTED TO THE ASSESSEE AND WHETHER THEY HAD THE CAPACITY OF GIVING LARGE AMOUNT OF GIFT TO THE ASSESSEE. THEREFORE, THE GIFTS RECEIVED BY THE ASSESSEE FROM THE DONOR COULD NOT BE HELD TO BE GENUINE GIFTS AND THE AUTHORITIES BELOW WERE FULLY JUSTIFIED IN TREATING THE AMOUNT RECEIVED AS GIFTS AS REPRESENTING THE CONCEALED INCOME OF THE ASSESSEE AND ADDING IT TO THE INCOME OF THE ASSESSEE AS BEING THE ASSESSEES INCOME FROM UNDISCLOSED SOURCE. 14. FOLLOWING THE HONBLE HIGH COURT JUDGMENT, WE ARE NOT INCLINE TO INTERFERE WITH THE ORDER PASSED BY THE LD.CIT. HOWEVER, TELESCOPING AMONG DIFFERENT ASSESSEES AND FOR DIFFERENT YEARS IS NOT PERMISSIBLE. ITA NO.IT(SS) APPEAL NO.153/AHD/2011 SHRI MITHUN N. KAPADIA VS. ASSTT. COMMISSIONER OF INCOME TAX. ASST.YEAR 2004-05 - 10 - 15. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 12/01/2017 SD/- SD/- . . ( ) ( ) ( N.K. BILLAIYA ) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 12/01/2017 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-II, AHMEDABAD. 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY