TaxTMI 
TaxTMI 
2012 (9) TMI 251
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....on, on being called upon to explain the nature and source of the same, the assessee submitted the copy of a letter dated 10-01-2004 by his late father, Shri Guru Prasad Awasthi, stating that he is gifting the said sum in cash, which he had kept aside for his old age/hospitalization, to the assessee, his only son. The AO, however, did not find the same acceptable. There was, firstly, no independent material to evidence the gift. Secondly, there was no material to evidence the source of the money with the father, the donor. There was also considerable time gap between the date of gift (Jan. 10, 2004) and the deposit of the cash received in the assessee's bank account (end June, 2005). The said deposit was therefore considered as unexplained, and deemed as the assessee's income u/s. 69A of the Act. 2.2 In appeal, the assessee was not able to improve his case in any manner. The money was, vide gift letter dated 10-01-2004, stated to be the sale proceeds of a land at his father's (donor's) home town, Gopalpur (near Itawa) in Uttar Pradesh (U.P). However, no evidence toward the same had been furnished. Also, there was no explanation as to why the money was kept in cash for such a l....
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....2004), and which amount has been accepted by the Revenue. How could it then take a different stand as far as the cash of Rs. 10.00 lacs deposited in bank account is concerned? The gift being only from the assessee's father, there cannot possibly be any issue as regards the genuineness of the transaction. Further, the gift letter itself states of the money having been kept aside by the father for his old age and medical expenses, and which cannot be doubted considering his advanced age and illness, and on which again no doubt has been expressed. However, as the entire expenditure on his father's medical treatment was incurred by the assessee, his son, the entire sum of Rs. 10.00 lacs was available with the assessee. Further, with regard to the Revenue's stand of the gift being not evidenced, an affidavit dated 17-03-2010 from the assessee's wife is being produced (PB page 13 and 14), averring that the money was given in her presence. The indulgence of the court for admission thereof as an additional evidence was also prayed for. 3.2 On being queried with regard to incurring the medical/hospitalization expenses by the assessee, the ld. AR expressed his inability to exhibit the ....
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....onus to that extent stands satisfied. That is, the principle of jurisprudence, to press which decision is being pressed come into play when the assessee has met the primary onus on it. Reference, in this context, is also drawn to our observations/findings at paras 4.2 to 4.6 of this order, upon examining the assessee's explanation, as well as those at para 4.7, issued in sum, on conclusion of the said exercise. In our view, the ratio of the aforesaid decision lies in that, that there has to be a nexus between the facts found and the conclusions drawn. Merely because the explanation by `X', in whose name the money is found deposited, is found to be false, it cannot by itself lead to the conclusion that the said amount belongs to `Y'. The said ratio is again clearly inapplicable in the facts of the present case. This is as the amount has been found to be deposited in the assessee's own bank account, i.e., the ownership thereof is proved as well as admitted. The only question, thus, is whether it represents the assessee's unexplained income, or he has furnished a satisfactory explanation with regard to its nature and source. Reference in this context, clarifying the law in the matt....
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....us, his capacity. No doubt, the assessee claims to have met the entire medical expenditure on his father's treatment, but the same is again only a bald statement, de hors any material. If the assessee has incurred the expenditure, he could furnish the relevant details; the money in any case would have only been withdrawn from his bank account/s or from other accounted source/s. We state this aspect, not only for the reason that the ld. DR raised the same, but as the same flows directly from the assessee's explanation of no amount of Rs. 10.00 lacs, specifically set aside by the father for his illness and old age, was actually spent and remained completely intact despite his prolonged illness/treatment. There are thus serious gaps in the assessee's explanation, which also impinge on the genuineness aspect of the transaction/s. Also, we may clarify that in requiring the assessee to evidence the stated source (gift), the assessee is only being called upon to establish the source, the onus for which is on him, and not the source of the source, as he claims. If, for example, the money is stated by the assessee to have been received by him by way of a gift, the same is only acceptable....
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....h an illness normally entails, it was only required to be parked in a savings bank account. Likewise, by the assessee. It is common knowledge and experience that money in bank is much safer, besides would yield some interest income. In fact, this becomes all the more incumbent, i.e., apart from being normal, preferable and prudent, considering the assessee's explanation that the medical expenditure was to be incurred only by him. The time lag of eighteen (18) months in depositing the cash in bank is, under the circumstances, inexplicable. 4.6 The assessee's statement of the Revenue having accepted the gift for another sum of Rs. 13.75 lacs, also vide the same letter, and which would thus estopp it from impugning the bank deposits under reference, as well as from seeking proof of capacity of his father, i.e., by implication, only needs to be stated to be rejected. Firstly, the capacity is not something absolute, but only relative. One may have capacity, or may be shown to have capacity, for, say, Rs. 10 lacs, while another for Rs. 1 lac, and yet another for Rs. 100 lacs, and so on. Two, the amount of Rs. 13.75 lacs has been reflected nowhere, i.e., either in the assessee's accoun....
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....uineness aspect of the transaction, reveals no such substantiation. The said evidence is, in the main, in the form of an affidavit by the assessee's wife, and the bank account statement reflecting the deposits. The fact of bank deposit/s is an admitted fact, while the assessee's wife only reiterates what the assessee has said in the matter. The question is not of doubting the same, or of having not issued an explanation per se, but one which could be regarded as so in law, i.e., a proper, reasonable and acceptable explanation as regards the nature and source of the money found deposited in his bank account [refer: CIT v. P. Mohanakala (2007) 291 ITR 278 (SC)]. And, even as we are prepared to make an allowance for the gift as having been made, under the peculiar circumstances of the case, by an ailing father to his son, in private, and within the four walls of the house, the lack of factual and circumstancial evidence/s in support of the same is overwhelming, and the veracity of what stands stated totally unproved. 4.8 We may also advert to the decisions cited by the assessee. The decision in the case of Dy. CIT vs. Prakash H. Shroff, 3 SOT 171 (Ahd.); rather, assists the Revenue....
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....e stands appointed in an advisory capacity by the State Government - as being of `technical consultancy', which is among the professions specified by the said provision, the income from his profession admittedly exceeding Rs. 1.20 lacs, the same would stand to be covered u/s. 44AA(2) of the Act. Now, if an assessee maintains books of account, which are found to be defective, in the sense that they are not correct and complete, for true income to be deducible there-from, so that the same are liable to be rejected and income estimated, there is no reason that it should not be so when the assessee admittedly does not maintain books of account, or though maintains them, does not produce them before the assessing authority. The power of estimation under such circumstances with the AO thus cannot in law be denied. A different view in the matter would imply that the assessee is free not to maintain the books of account or, where maintained; the same being required for several other purposes as well, not produce them before the AO, who would be precluded from making an estimate of the income, and which clearly cannot be. 7.2 So, however, it is again trite that there has to be some basis....