Income Tax Appellate Tribunal - Agra
Lalji Gupta, Mainpuri vs Assessee on 7 August, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL,
AGRA BENCH, AGRA
BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND
SHRI A.L. GEHLOT, ACCOUNTANT MEMBER
ITA No. 680/Agra/2008
Asstt. Year : 2004-05
Shri Lalji Gupta, vs. Income-tax Officer,
Kharagjeet Nagar, Ward-1, Mainpuri.
Mainpuri.
(PAN : AEDPG 5315 H)
(Appellant) (Respondent)
Appellant by : Shri R.C. Tomar, I.T.P.
Respondent by : Km. Anuradha, Jr. D.R.
Date of hearing : 07.08.2012
Date of pronouncement of order : 23.08.2012
ORDER
Per Bhavnesh Saini, J.M.:
This appeal by the assessee is directed against the order of ld. CIT(A), Ghaziabad dated 18.08.2008 for the assessment year 2004-05.
2. The assessee has raised 8 grounds of appeal. On ground No. 1 to 3, the assessee challenged the reopening of the assessment u/s. 147 of the IT Act. On grounds Nos. 4 to 7, the assessee challenged addition of Rs.5,00,000/- on account of unexplained gifts. On ground No. 8, the assessee challenged the addition of Rs.13,100/- for low household withdrawals.
2 ITA No. 680/Agra/2008
3. According to the office, the appeal of the assessee is time barred by 8 days, though the assessee claimed in column No. 9 of form-36 that the impugned order is served upon him on 06.10.2008 and as such, the appeal is filed within the period of limitation on 03.12.2008. The assessee filed application for condonation of delay stating that due to illness of assessee, the delay has happened in filing the appeal. Considering the explanation of the assessee and the facts noted in the appeal papers, the nominal delay, if any, is condoned in filing the appeal.
4. We have heard the ld. representatives of both the parties, perused the findings of the authorities below and considered the material available on record.
5. The facts of the case are that the return of income was filed on 13.08.2004 on an income of Rs. 1,19,590/-. Subsequently, notice u/s. 148 was issued on 28.10.2005. In reply to this notice, the assessee has stated that once the assessment is completed u/s. 143(1), the notice u/s. 148 cannot be issued. The AO rejected the objection of the assessee because when there is escapement of income, proceedings u/s. 148 could been initiated even if the return was processed u/s. 143(1). During the course of scrutiny, it was found that the assessee had received gifts of Rs.5,00,000/- from three persons and perhaps money was raised for investment in purchase of plots. The gifts were received from the donors Sarv Shri Surendra Nath Dubey Rs.2,00,000/-, Sanjeev Kumar Mishra Rs.1,00,000/- and Ram Sanehi 3 ITA No. 680/Agra/2008 Lal Parasar Rs.2,00,000/- on 09.09.2003. The assessee was required to prove these gifts. The assessee filed confirmations from these donors and copies of their bank passbooks. Two of the donors, i.e., Shri Surendra Nath Debey and Shri Ram Sanehi Lal Parasar are not assessed to tax who have allegedly given Rs.2,00,000/- each to the assessee. Shri Sanjeev Kumar Mishra is assessed to tax, but the other parameters of genuine gifts were not fulfilled, i.e., relationship with the doneee, occasion of gift and source of gift. The AO discussed each gift separately in the assessment order as under :
(i). Shri Surendra Nath Dubey :- A gift of Rs.2,00,000/- has been claimed to have been received from this donor. Copy of his bank account shows that Rs.2,00,000/- was deposited in this account in cash on 09.09.2003 and on the same day cheque was issued in favour of the assessee for gift. He was examined by the AO and he has stated his agricultural income of about Rs.80,000/- per annum and Rs.30,000/- from practice as an Advocate. He could not explain any occasion for which the money was gifted. There is no relationship with him and he could not tell the names of assessee's children. He does not have any vehicle. He could not explain why he was so generous to gift such a huge amount to the assessee and no satisfactory explanation was given for depositing the cash in his bank account on the date of gift. The AO, therefore, found that no source of bank deposit is proved and it was a bogus gift and the money belongs to the assessee, which was earned 4 ITA No. 680/Agra/2008 from undisclosed sources. Accordingly, the genuineness of the gift was not proved and the addition was accordingly made.
(ii). Shri Sanjeev Kumar Mishra : He has given Rs.1,00,000/- as gift to the assessee. He is assessed to tax and filed return of income of Rs.52,800/-. Copy of bank account not filed. He has no relation with the assessee and could not tell the date of birth of the assessee's children. He has not given any gift to others. It was stated that gift was given at the time of marriage anniversary of the assessee, which was on 5th September, but he could not explain why gift was given on 9th September after marriage anniversary function was over. The AO, therefore, treated it to be a bogus gift and it was treated as income of assessee from undisclosed sources.
(iii). Shri Ram Sanehi Lal Parasar : He has also given gift of Rs.2,00,000/- to the assessee out of his income from pension and agriculture. He was having money in his bank account, which was received from retirement benefits. The cheque of Rs.2,00,000/- was issued on 09.09.2003 and after clearance of the cheque, Rs.2,00,000/- was deposited in cash in his bank account, for which he has not given any explanation. The AO, therefore, observed that it was money of the assessee, which was given to the donor for making a gift. The donor is 65 years old and the assessee is very young and no source of his income was filed. In 5 ITA No. 680/Agra/2008 his statement, he has admitted that he has not given any gift to other persons, even to the relatives and family members. He also could not give the date of birth of assessee's children and full address of the assessee. He claimed that Rs.2,00,000/-
was received by him from his niece working in Abu Dhabi, but no evidence was given to support such statement. It was, therefore, held that gift is not genuine and it was income of the assessee from undisclosed sources. Addition was, accordingly, made.
5.1 The assessee has shown withdrawals for household expenses at Rs.46,900/-, i.e., Rs.28900 + Rs.18,000/- as tuition fees. His two daughters are studying in Vasanthali, Jaipur and has also one small son. Considering the family members, education expenses, traveling expenses etc. and social status of the assessee household expenses were estimated at Rs.60,000/- and addition of Rs.13,100/- was made for low withdrawals for household expenses. The AO further added that household expenses are estimated besides any contribution made by his wife. 5.2 All the above additions were challenged before the ld. CIT(A) along with reopening of assessment. It was briefly explained before the ld. CIT(A) that the assessee has given information of movable and immovable properties along with the gift and there is no fresh information available with the AO to invoke the provisions of section 147 of the IT Act. For the gifts, the assessee explained that 6 ITA No. 680/Agra/2008 the gifts are received through banking channel and confirmations have been filed and one of the donor is assessed to tax for several years. Therefore, the identity of the donors has been proved along with occasion of gift being the marriage anniversary ceremony. Therefore, no addition should be made. With regard to the household expenses, it was submitted that wife of assessee is assessed to tax and has made withdrawals of Rs.34,600/-. Therefore, total withdrawals made by the assessee and his wife comes to Rs.80,500/-. Therefore, no further addition is justified. The AO in the remand report reiterated the facts stated in the assessment order. The ld. CIT(A) confirmed all the additions and also confirmed reopening of assessment in the matter. The findings of the ld. CIT(A) in para 6 to 10 are reproduced as under :
6. The submissions of the learned AR have been considered. I have also considered the facts stated by the AO in the assessment order as well as in the remand report.
7. The first issue is against the initiation of proceedings U/s 147/148 of the Act. On perusal of the facts as brought out by the AO in the assessment order, there appears no illegality in the action taken by the AO U/s 147 of the LT. Act. The ground taken by the appellant on this score is therefore dismissed.
8. The next issue is against the addition made by the AO at Rs.5,00,000/- under the head income from undisclosed sources. During the year, the appellant has shown to have been received gifts of Rs.5,00,000/- from the following three persons, which the AO treated as bogus gifts and made the addition accordingly:
i. Shri Surendra NathDubey Rs.2,00,000/-
ii. Shri Sanjeev Kumar Kmishra Rs.l,00,000/-
iii. Sh. Ram Sanehi Lal Parasar Rs.2,00,000/-
7 ITA No. 680/Agra/2008
In case of gift of Rs.2,00,000/- by Shri Surendra Nath Dubey, the AO noticed from the copy of bank of the said donor that a cash of Rs.2,00,000/-was deposited on 9.9.2003 and the cheque was issued to the assessee which was cleared on 10.9.2003. The AO has observed that the source of deposit of Rs.2,00,000/- in cash in the bank a/c of the donor has not been proved. The AO has pointed out that the donor has not been able to give the occasion for which the gift was made. The AO also noted that there is no close relation with the donor & donee. All the facts brought out by the AO in the assessment order as well as in the remand report clearly shows that the gift stated to have received by the appellant from Shri Surendra Nath Dubey of Rs.2,00,000/- is a bogus gift. During appellate proceedings also the appellant has not been able to furnish any corroborate evidence to controvert the findings of the AO.
As regards the gift of Rs.l ,00,000/- by Shri Sanjeev Mishra, the AO has pointed out that from the return filed by Shri Mishra revealed income declared by him at Rs.52,800/-. The AO has also pointed out that the assessee has not filed copy of bank account of Shri Mishra. From the return filed by Shri Sanjeev Mishra for assessment year consideration shows that Shri Mishra has no creditworthiness to make a gift of Rs.l ,00,000/-. From the facts brought out by the AO in the assessment order as well as in the remand report also shows that Shri Mishra is not a close relation of the appellant. The AO also pointed out that Shri Mishra stated the occasion of gift as the marriage anniversary of the appellant but the AO has noted that the marriage anniversary of the appellant is 5th September while the gift was made on 9th September. All the above facts clearly establish that this is not a genuine gift. During appellate proceedings also the appellant has not been able to furnish any evidence to controvert the AO's findings.
As regards the gift of Rs.2,00,0001- by Shri Ram Saheni Lal Parasar, the AO has noted that Shri Parasar has income from pension and agriculture. From the copy of bank. A/c of Shri Parasar, the AO noted that Shri Parasar issued a cheque of Rs.2,00,000/- to the assessee on 9.9.2003 and on the same date i.e. after clearance of cheque, Rs.2,00,000/- was deposited in cash in the said bank account of the donor. When asked by the AO the source of deposit of Rs.2,00,000/- in cash on 9.9.2003, Shri Parasar has no explanation except stating that the money was available with him in cash which 8 ITA No. 680/Agra/2008 was deposited in his bank a/c. As has been rightly observed by the AO, the above events clearly show that the sum of Rs.2,00,000/- is the money given by the appellant Shri Lalji Gupta to Shri Parasar in cash after receipt of money through bank a/c. The AO has also pointed out that Shri Parasar is a pensioner having limited source of earning. The entire facts as brought out by the AO clearly show that this gift is also not a genuine gift. During appellate proceedings also the appellant has not been able to furnish any evidence to controvert the AO's finding.
Considering the entire facts and circumstances of the case, the addition made by the AO at Rs.5,00,000/- under the head income from undisclosed sources is hereby confirmed.
9. The next issue is against the addition of Rs.13,100/- on a/c of low household withdrawals. The AO has made the addition by observing as under :-
"The assessee has shown withdrawals for household expenses at Rs.28,900/- + Rs.18,000/- as tuition fee totaling to Rs.46,900/-. It is gathered that his two daughters are studying in Vanasthali, Jaipur. He has one small son. Keeping in view the expenditure on study of daughters and other expenses on their traveling, books etc. and the social status of the assessee, his share for house hold expenses is estimated at Rs.60,000/-. Thus, their will be an addition of Rs.13,l00/- for low withdrawals for house hold expenses. The household expenses as estimated above are besides any contribution made by his wife."
During appellate proceedings, it has been submitted that the total withdrawals made by the appellant and also his wife were Rs.81,500/- which were sufficient to meet his household expenses for the entire year. The learned AR has argued that the AO has made the addition based on mere estimate without bringing any material on record to justify such an estimate. The submissions of the learned AR have been considered along with the material available on record. Looking into the quantum of withdrawal and also the fact brought on record by the AO that two of his daughters are studying in Vanasthali, 9 ITA No. 680/Agra/2008 Jaipur, I hold that there is sufficient material for enhancing the withdrawal by Rs.13,100/-. The addition made by the AO at Rs.13,100/- on a/c of low withdrawals is, therefore, hereby confirmed.
10. In the result, the appeal is dismissed."
6. The assessee has also filed application for admission of additional grounds of appeal. Before proceeding further, it would be relevant to decide the additional grounds as under :
7. Additional ground No. 1 : It is stated on additional ground No. 1 that the AO has erred on facts and in law in invoking the provisions of section 68 of the IT Act, particularly when the assessee has not maintained any books of account. The ld. counsel for the assessee reiterated the same facts. The ld. DR, however, stated that no such ground was raised before the authorities below and the same is not arising out of the impugned orders and it is a question of fact, which requires re-appreciation and as such, the same nay not be admitted for hearing. 7.1 On consideration of the above, we are not inclined to admit this additional ground of appeal. The assessee never raised this plea before the authorities below and nothing is coming up from the record whether the assessee did not maintain any books of account. It is a question of fact which requires re-appreciation and at this stage, same cannot be admitted. Further, the ITAT, Delhi Bench in the case of DCIT vs. Smt. Phoolwati Devi, 314 ITR (AT) 1 (Delhi) held -
10 ITA No. 680/Agra/2008
"Where it is seen that the assessee is in receipt of monies, then notwithstanding that he does not maintain books of account in which such monies are recorded, it is his burden, when called upon, to point out the nature and source of the money and if his explanation in this behalf is not found satisfactory, it is open to the Assessing Officer to add the same as his income. For this purpose, it is not necessary for the Assessing Officer to rely on section 68 of the Act."
7.2 Hon'ble Punjab & Haryana High Court in the case of Balbir Singh vs. CIT, 334 ITR 287 held that when the assessee made a claim of gift, which the assessee could not prove, assessment u/s. 68 is valid. Further, the assessee received the gifts in question through banking channel and deposited in his bank account, therefore, apart from the provisions of section 68, the provision of section 69A would also be attracted in the case of the assessee. In view of the above, we are not inclined to admit additional ground of appeal. Same is, accordingly, dismissed.
8. Additional ground No. 2 : The assessee on additional ground No. 2 stated that notice u/s. 143(2) was issued after lapse of 12 months, i.e., the time limit prescribed under proviso to said section and the assessment framed u/s. 143(3)/147 is void. The ld. counsel for the assessee submitted that the assessee filed original return of income on 13.08.2004 and notice u/s. 143(2) has been issued on 15.05.2006 (PB-8) for 26.11.2006. Therefore, the assessment is bad in law. The ld. counsel for the assessee, however, admitted that the assessee did not file any return of income in response to notice u/s. 148 of the IT Act. The ld. DR 11 ITA No. 680/Agra/2008 submitted that the assessee has raised incorrect additional ground of appeal. No return was filed in response to notice u/s. 148. There was no reason to issue notice u/s. 143(2) as per proviso to section 143(2) of the Act.
8.1 On consideration of the rival submissions, we are not inclined to admit this additional ground of appeal. It is admitted fact that the assessee did not file any return of income in response to notice u/s. 148 of the IT Act. Thus, the AO passed the order u/s. 147 without filing of the return by the assessee. The proviso to section 143(2) provides " Provided that no notice under clause (ii) shall be served on assessee after expiry of 12 months from the end of the month in which return is furnished". Therefore, for applying the proviso to section 143(2), it is necessary that the return should be filed in accordance with law. Otherwise, the period of 12 months could not be reckoned as provided in the above proviso. Admittedly, the assessee did not file any return of income in response to notice u/s. 148 of the IT Act. Therefore, there is no question of issuing any notice u/s. 143(2) of the Act. Further, this issue was also not raised before the authorities below at any stage. The assessee filed objection to the reopening of assessment before the AO (PB- 3 & 4), but such an objection was never raised. It is also raised for the first time which is not arising out of the orders of the authorities below and as such, we are not inclined to admit this additional ground of appeal of the assessee. The same is, accordingly, rejected.
12 ITA No. 680/Agra/2008
9. Now we decide all the three issues raised in the appeal of the assessee as under :-
10. Issue No.1 : The assessee challenged the reopening of assessment u/s. 147 of the IT Act. The ld. counsel for the assessee referred to reasons for reopening of assessment (PB-5 & 6) and submitted that the AO reopened the assessment for investment made in the property in a sum of Rs.10,34,000/- and since the investment was shown in the return at Rs.4,50,700/- only, therefore, the balance investment of Rs.5,84,000/- was considered as escaped income. He has submitted that ultimately, the AO did not make any addition on the reasons, on which reopening of the assessment was considered against the assessee. He has relied upon the decision of Hon'ble Rajasthan High Court in the case of CIT vs. Sri Ram Singh, 306 ITR 343, in which it was held that once the AO came to the conclusion that the income with respect to which he had entertained the reason to believe to have escaped assessment, was found to have explained, his jurisdiction came to a stop at that, and he did not continue to possess jurisdiction, to put to tax any other income, which subsequently came to his notice in the course of reassessment proceedings, which were found by him to have escaped assessment. He has also relied upon the decision of Hon'ble Bombay High Court in the case of CIT vs. Jet Airways (I) Ltd., 331 ITR 236, in which it was held -
13 ITA No. 680/Agra/2008
"AO may assess or reassess the income in respect of any issue which comes to his notice subsequently in the course of proceedings though the reasons for such issue were not included in the notice, however, if after issuing a notice under s. 148, the AO accepted the contention of the assessee and hold that the income which he has initially formed a reason to believe had escaped assessment, has as a matter of fact not escaped assessment, it is not open to him independently to assess some other income."
10.1 He has submitted that the assessee has shown gifts in computation of income (PB-2). Therefore, there was no material before the AO to have reason to believe that the income chargeable to tax has escaped assessment. On the other hand, the ld. DR submitted that whatever objections are now raised against reopening of assessment, were never raised either before the AO or before the ld. CIT(A). Therefore, the assessee has made a new case and as such, this ground of appeal of the assessee may be dismissed.
11. We have considered the rival submissions. There is no dispute that whatever contentions are now raised by the ld. counsel for the assessee, were never raised before the authorities below. The assessee raised objection to the reopening of assessment before the AO (PB-3) in which the assessee mainly submitted that the assessee has explained purchases of immovable property and as such, there is no reason to believe that the income has escaped assessment. No further contentions have been raised either before the AO or ld. CIT(A) on the points now raised before the Tribunal. Further, the ld. CIT(A), considering this issue merely noted in 14 ITA No. 680/Agra/2008 para 7 as reproduced above, that there appears no illegality in the action of the AO u/s. 147 of the IT Act. The ld. CIT(A) did not pass any speaking order on this issue. Further, the contentions of the assessee now raised have not been raised before the authorities below. Therefore, there is no finding given by the authorities below on this point. We are, therefore, of the view that since it is a legal issue and new contentions are raised for the first time and the authorities below have no occasion to consider the same, therefore, the matter requires reconsideration at the level of the ld. CIT(A). We, accordingly, set side the order of the ld. CIT(A) and restore this issue to his file with the direction to re-decide this issue in accordance with law by passing speaking order. The ld. CIT(A) shall give reasons for decision on this issue by giving reasonable and sufficient opportunity of being heard to the assessee. In the result, ground No. 1 to 3 of appeal of the assessee are allowed for statistical purpose.
12. Issue No. 2 : The assessee challenged addition of Rs.5,00,000/- u/s. 68 of the IT Act. The ld. counsel for the assessee reiterated the submissions made before the authorities below and submitted that all the donors were produced before the AO, who have stated in their statements that gifts were given to the assessee. Therefore, no addition should be made. He has relied upon the decision of Hon'ble Rajasthan High Court in the case of CIT vs. Hiralal Chagan Lal Tank, 257 ITR 281, in which it was held that once the identity of the creditor is 15 ITA No. 680/Agra/2008 established and he has confirmed giving of loan to the assessee and the finding of the Tribunal accepting the genuineness of loan and deleting the addition could not be said to be perverse. He has also relied upon the order of ITAT Amritsar Bench in the case of ACIT vs. Manoj Kumar Sekhri, 3 SOT 166, in which it was held that where nothing is shown to prove that money received by the assessee by way of gift is, in fact, assessee's own money, which was routed through his account by way of gifts, no addition could be made. On the other hand, the ld. DR relied upon the orders of the authorities below.
13. We have considered the rival submissions and do not find any justification to interfere with the orders of the authorities below. The AO has examined each and every gift in detail which have been confirmed by the ld. CIT(A) with reasoned order. It was found that two of the donors are not assessed to tax and they have only meager income. In the case of Shri Surendra Nath Dubey, he has deposited cash in his bank account of Rs.2,00,000/- for giving gifts to the assessee. He could not prove source of his agricultural income and being an advocate, his income was Rs.30,000/- only. He could not explain name of assessee's children and from where he brought the cash for depositing the same in the bank account on the date of gift. In the case of Shri Sanjeev Kumar Mishra, though he has not filed the copy of bank account before the AO, but the copies filed now in the paper book at page 16 to show that he also deposited cash before issuing the gift to the 16 ITA No. 680/Agra/2008 assessee. He could not tell the date of birth of assessee's children and did not give any gift to any of his relatives. Gift was given after marriage anniversary was over. He filed return of income only at Rs.52,800/-. In the case of Ram Sanehi Lal Parasar, after giving cheque of Rs.2,00,000/- as gift to the assessee, Rs. 2,00,000/- have been deposited in his account in cash after clearance of the gift cheque. He could not give any evidence of receipt of cash from his niece. It would, therefore, prove that the donors have no taxable income and have only meager source of income. Thus, no source of income is proved. No source of cash deposited in the account of the donors on the date of gifts or subsequent to the date of gift have been explained or proved. No reasons or occasion of gifts have been explained. Whatever explanation was given was found to be incorrect and false. No evidence or material showing any love and affection has been filed before the authorities below. Merely because the gifts were made through account payee cheques, would not prove the genuineness of the gifts in the mater. Thus, the assessee failed to prove all the basic ingredients of genuine gift in the matter. Therefore, it is clear that the gifts are not genuine and are arranged affairs of assessee and would lead to irresistible conclusion that it was money of the assessee in cash, which was deposited in the accounts of the donors for the purpose of arranging the so called gifts. The Hon'ble Delhi High Court in the case of CIT Vs Anil Kumar 292 ITR 552 held -
17 ITA No. 680/Agra/2008
"In the case of gifts mere identification of the donor and showing the movement of the gift amount through banking channels is not sufficient to prove the genuineness of the gift. Since the claim of gift is made by the assessee, 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 received two gifts of Rs.10 lakhs each from N. R. E. accounts of two donors, namely V and D. The Assessing Officer found that the 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 financial capacity of the donors, what was the credit-worthiness of the donors, what kind of relationship the donors had with the assessee, what were the sources of funds gifted to the assessee and whether they had the capacity of giving large amounts of gift to the assessee. Further, the assessee was asked to appear in person before the Assessing Officer, but never appeared. The addition of Rs.20 lakhs was justified.
13.1 The Hon'ble Supreme Court in the case of CIT Vs P. Mohankala 291 ITR 278 held -
"The assessee received foreign gifts from one common donor. The payments 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 cheques sent from aboard were drawn on the Citibank, N. A. Singapore. The evidence indicated that the donor was to receive suitable compensation from the assessees. On this material the Assessing Officer held that the gifts though apparent were not real and accordingly treated all those amounts which were credited in the account books of the assessees as their income applying section 68 of the Income-tax Act, 1961. The 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 the two Members of 18 ITA No. 680/Agra/2008 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 Commissioner (Appeals). On appeal the High Court re-appreciated the evidence and substituted its own findings and came to the conclusion that the reasons assigned by the Tribunal were in the realm of surmises, conjecture and suspicion. On appeal to the 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 not on any conjectures and surmises. That the money came by way of bank cheques and was paid through the process of banking transaction was not by itself of any consequence. The High Court misdirected itself and erred in disturbing the concurrent findings of fact."
13.2. Hon'ble Punjab and Haryana High Court in the case of Yash Pal Goel Vs CIT 310 ITR 75 held -
"Held, dismissing the appeal that the financial position of M. suggested that he neither had the capacity to make the gift nor 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 subterfuge to avoid income-tax. The transactions were not genuine ones".
Considering the facts of the case and the material brought on record by the AO and above discussion, it is clear that the assessee failed to prove any relation with the donors and their creditworthiness. No sufficient evidence or material is filed to prove genuineness of the gift in the matter. Hon'ble Supreme Court in the case of CIT Vs Shri Durga Prasad More, 82 ITR 540 and in the case of Smt. Sumati Dayal Vs CIT 214 ITR 801, held that "the Courts and Tribunals have to judge the 19 ITA No. 680/Agra/2008 evidences before them by applying the test of human probabilities after considering the surrounding circumstances." If the said test is applied to the facts of the case, it is clearly established that the assessee has failed to prove genuine gifts in the matter. We, therefore, do not find any merit in these grounds of appeal. The same are, accordingly, dismissed.
14. Issue No.3 : The assessee challenged the addition on account of low withdrawals. The ld. counsel for the assessee submitted that the withdrawals of wife of assessee have not been considered. The ld. DR, however, pointed out that the AO has estimated the household expenses of assessee after considering the contribution made by the assessee's wife. In view of the above, we do not find any merit in ground No. 8 of appeal of the assessee. The AO has taken into consideration the household withdrawals of wife of assessee at the time of considering the issue of estimating the household expenses. Considering the size of the family, educational expenses etc. we do not find any infirmity in the orders of the authorities below in making small addition of Rs.13100/-. Ground No. 8 of appeal of the assessee is, accordingly, dismissed.
15. No other point is argued or pressed.
20 ITA No. 680/Agra/2008
16. In the result, the appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court.
Sd/- Sd/-
(A.L. GEHLOT) (BHAVNESH SAINI)
Accountant Member Judicial Member
*aks/-
Copy of the order forwarded to :
1. Appellant
2. Respondent
3. CIT(A), concerned By order
4. CIT, concerned
5. DR, ITAT, Agra
6. Guard file Sr. Private Secretary
True copy