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1 - 10 of 34 (0.27 seconds)Section 254 in The Income Tax Act, 1961 [Entire Act]
The Income Tax Act, 1961
Commissioner Of Income Tax vs P. Mohanakala on 15 May, 2007
In the case of CIT v. P.
Mohanakala [2007] 291 ITR 278, the Supreme Court considered the
expression "the assessee offers no explanation" and observed that what it
means is that the assessee offers no proper, reasonable and acceptable
explanation in the opinion of the Assessing Officer, formed objectively with
reference to the material available on record. We find that the assessee has
failed to furnish explanation as required in this regards.
Section 256 in The Income Tax Act, 1961 [Entire Act]
T. S. Balaram, Income Tax ... vs M/S. Volkart Brothers, Bombay on 5 August, 1971
In T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526,
the Court held that "any mistake apparent from the record" "is undoubtedly not
more than that of the High Court to entertain a writ petition on the basis of an
"error apparent on the face of the record". It was, however, conceded in all leading
cases that it is very difficult to define an "error apparent on the face of the record"
Commissioner Of Income-Tax, West ... vs Durga Prasad More on 26 August, 1971
11.8 In the light of above law laid down by the Apex Court in the case of
CIT v Durga Prasad More 82 ITR 540 (SC), in the case of Commissioner of
Income-tax v. P Mohanakala 291 ITR 278 (SC) and other decisions as
discussed above If we consider the facts of the case under consideration and
the surrounding circumstances, prevailing practice/customs in the society,
we find that in the case under consideration claim of the assessee to receive
gift from younger sister which is against whole philosophy, tradition and
recognized social custom and religious. In India it is old age accepted fact
that elder brother never takes anything from his younger sister, even
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M.A. No.23/Agr/2012
drinking water from his younger sister. Relation of brother and sister is
holly relation and brother is always protecting sister an all aspect of the
matter including financial matter but gift from younger sister is an unusual
circumstances which is unbelievable. It may be an old customs but this
concept has to take into consideration for peaceful, and grace full running of
a civil society and If some has tried to demolish such accepted social custom
such action is required to quash at the first sage itself, otherwise existence of
civil society itself will be in danger. A consent of such action of a person
cannot be given while recording facts of the case for the purpose of even in
income tax proceeding. The contention of the Ld. Authorised Representative
was that the assessee has furnished necessary explanation and evidence
before the Assessing Officer, contrary to that, the Assessing Officer noted in
his order that no evidence was furnished. The CIT(A) surprised to note that
even such a simple explanation that the amount was gifted by the assessee's
sister was not pointed out to the Assessing Officer nor such explanation was
furnished before the Assessing Officer. Rule 10 of ITAT rules provides that
where a fact which cannot be borne out by, or is contrary to, the record is
alleged, it shall be stated clearly and concisely and supported by a duly
sworn affidavit. The assessee did not file such sworn affidavit stating that
the Assessing Officer has recorded contrary facts in his order. Not only this,
but it is also fact that the assessee failed to furnish any evidence to support
that these documents were filed before the Assessing Officer. However, in
the interest of justice, whatever papers were filed in Paper Book and pointed
out by the Ld. Authorised Representative, if we consider it on merit, on
perusal of copy of statement of Syndicate Bank account of Aligarh Main
Branch which has been placed at page no.8 of assessee's Paper Book, it has
been noticed that credit balance in the said account up to 09.07.2005 was
Rs.13,582/-. On 15.10.2005, it is mentioned as close Trf-VCC 42493
Rs.9,06,167/-. Next entry is dated 09.11.2005 narrating close Trf-VCC
42551 Rs.3,07,744/-. Next entry is dated 17.11.2005 CLG Rs.17,770/-, then
entry dated 19.11.2005 CLG Rs.2,96,949.26, then entry dated 02.01.2006 to
Alok Agarwal Cheque No.869326 Rs.15,40,000/- shown as debit amount.
After that debit amount of Rs.15,40,000/-, the balance amount remained in
the Bank account was Rs.2,212.82. On a perusal of page 11 of the Paper
Book where supporting document from Syndicate Bank in respect of Vikas
Cash Certificate has been placed, it has been noticed that the date of
maturity of the said VCC was 10.10.2005 for Rs.9,07,067/- which has been
credited in assessee's Savings Bank account on 15.10.2005 Rs.9,06,167/-.
The other VCC of which copy has been placed at page no.10 of assessee's
Paper Book which bearing no.33339 36160, the date of maturity of this VCC
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was 07.11.2004 for Rs.3,07,589/- whereas in bank account the entry is dated
09.11.2005 VCC 42551 for Rs.3,07,744/-.. In this entry, neither the date of
maturity nor the VCC or amount is tallied as per the entry in S.B. account
and a copy of VCC which has been placed in the Paper Book at page 10.
The assessee did not point out any explanation in respect of these
discrepancies. In respect of entry dated 17.11.2005 for Rs.17,770/-, it was
explained that it was income tax refund but no evidence has been furnished.
The assessee has failed to explain entry of Rs.2,96,949.26 dated 19.11.2005.
However, the assessee pointed out that this is out of maturity amount from
Unit Trust of India of which copy placed at page no.9 of assessee's Paper
Book. On perusal of page no.9 of Paper Book, we noticed that the unit
which was amounting Rs.96,949.26 of which issue date is 07.11.2005 and
valid upto 06.01.2006. Similarly, other unit of Rs.1,00,000/- of which issue
dated is 07.11.2005 and valid upto 06.01.2006. Dates and amounts of the
said units do not match with the entry shown in S.B. Account dated
19.11.2005. From the above facts noted and on perusal of relevant records,
we are of the considered view that the assessee has failed to explain the
source of Rs.15,40,000/- which was allegedly stated to be given as gift to the
assessee. The assessee has also failed to furnish the complete circle of all
these transactions that wherefrom original money came to the account of
Smt. Anjali Consul which was invested in units as well as in banks in the
form of fixed deposits and others. Unless the assessee furnishes the
complete chain of funds or money that the money received by Smt. Anjali
Consul, NRI, was in accordance with Reserve Bank of India procedures,
Smt. Anjali Consul being NRI and strict rules are to be complied with for
sending money to India by any NRI or others, the assessee has failed to point
out any single paper that the original investment made by Smt. Anjali
Consul in the units and F.D. in banks were came from out of India in
accordance with rules and regulations framed by the Reserve Bank of India.
In absence of such material, it cannot be held that the original amount
invested belongs to Smt. Anjali Consul and in fact the amount gifted was
from out of India. Even otherwise, considering the fact that this may be the
investment in units and FD out of income earned in India, such exemption or
explanation is also not acceptable. The Revenue Authorities has noted that
the donor Smt. Anjali Consul is filing return showing meager amount of
income. For example, in Assessment Year 2006-07, it was Rs.36,564/- only.
Thus, the gift of Rs.15,40,000/- cannot be said to be given by such meager
income. Can it believable fact that a younger sister received her old
investment on maturity and give entire money as gift her elder brother.
After the amount gifted, Rs.15,40,000/-, the balance amount remained in the
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Bank account was Rs.2,212.82thus there are reasons to believe that the gift
is not the real. The transactions though may be apparent but cannot hold to
be real. The assessee relied upon on a gift letter that too is in doubt full, it
will be very easy to make self-serving gift letter either executed or taken by a
party and rely on those recitals. The gift letter executed on a letter head of
hotel, Hotel Rajhans how donor and donee both were available on same
place in India on 15.12.2005, no relevant satisfactory explanation is on
record. Therefore, if all that an assessee who wants to evade tax is to have
some recitals made in a document either executed by him or executed in his
favour then the door will be left wide open to evade tax. A little probing was
sufficient in the present case to show that the apparent was not the real. The
taxing authorities were not required to put on blinkers while looking at the
documents produced before them. They were entitled to look into the
surrounding circumstances to find out the reality of the recitals made in
those documents. In such type of cases recipients made cash payments or
incurred expenditures on behalf of NRI while the NRI visited India and
against that amount received through DDs. or cheques in India. Under the
circumstances it is not unreasonable to take note of the common
phenomenon that gift received in this manner is common mode of money
laundering. Under the alleged circumstances gift received by the assessee is
not a genuine gift. When gift is not genuine, the addition u/s 68 is warranted.
Further, as said above those two elements are essential in the gift, 'giving'
and 'taking. In the case under consideration, the assessee has failed to
establish second part of that element i.e. giving any love and affection to
donor as discussed above. One of the aspects of the gift is that unless it is in
favor of a relative, a disposition can be said to operate as a gift only if it can
be shown to contain some element of bounty. The burden is on the assessee
to prove some element of bounty. But the assessee has failed in this regard.
The burden is on assessee that not only must the assessee establish the
identity of the donor and his capacity to make the gift, but he must also
establish that the amount received by him was in fact a gift. The assessee
failed to discharge his duty in this regards.
Section 35 in The Income Tax Act, 1961 [Entire Act]
Cit vs Itat And Ors. on 2 June, 2006
We are unable to agree with this submission of Mr. Syali. One
instance of a mistake apparent from the record is indicated in rule 24 of the
Income-tax Appellate Tribunal Rules and that mistake is permissible to be
corrected by recalling the order. However, in order to invoke the power
under section 254(2) the mistake would have to be shown to be a mistake
apparent from the record. The Tribunal, in the present case records in para
5 of the impugned order dated 10-9-2003 that admittedly, a decision of the
Co-ordinate Bench was cited and placed on record but the same has
escaped the attention of this Bench. We have already held this can hardly be
construed as a mistake apparent from the record. As pointed out by this
Court in CIT v. ITAT [2006] 155 Taxman 378 this might be a good ground
for an appeal but not for a rectification. A distinction as rightly been drawn
in several decisions of this Court between the scope of the power of review
and recall and that of rectification. In the circumstances we are, with
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respect, unable to subscribe to the broad-brush approach of the Gujarat
High Court.
Sh. Yash Pal Goel vs The Commissioner Of Income Tax ... on 20 January, 2009
Here it is to
relevant to refer observation of Punjab & Haryana High Court in the case
of Yash Pal Goel v. CIT(A), 310 ITR 75 (P&H) where the court observed
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that the so-called gift set up by the appellant was not bona fide transaction.
The unscrupulous use every gimmick to avoid paying income-tax. If the
State exchequer is made the target of deceit and the revenue comes down,
the development of the country will be a casualty. It is reprehensible that
same citizens spend on litigation and unnecessarily bring matters before
courts than to pay tax on their income. The tendency needs to be
discouraged and curbed. The court is constrained to feel that the
Department of Income-tax has unnecessarily been dragged in this litigation
and the time of the court has also been wasted .The above observation of the
court is fully applicable to the facts of the case under consideration. In the
light of above discussions and under the circumstances of the case we are of
the considered view that the AO has rightly made the addition u/s 68 of the
Act as gift was not a genuine gift and the CIT(A) rightly confirmed the
action of the AO in this regards."