TaxTMI 
TaxTMI 
TaxTMI 
2015 (10) TMI 2047
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed u/s 153(A) is without jurisdiction, bad in law and be quashed." 4. Learned A.R. of the assessee submitted in course of hearing before us that he has filed brief synopsis dated 03/08/2015 available on pages 29 to 32 of the paper book and the issue involved in additional ground of appeal may be decided as per these brief synopsis. Regarding the merit of the addition made by the Assessing Officer as per grounds raised in the memo of appeal, he submitted that reliance is placed on the Tribunal decision rendered in the case of DCIT vs. Raj Kumar Arora in I.T.A. No.290/Lkw/2009 dated 28/04/2015, copy available on pages 51 to 57 of the paper book. 5. Learned D. R. of the Revenue supported the orders of the authorities below. 6. We have considered the rival submissions. We find that the issue in dispute was decided by learned CIT(A) as per Para 3.2 to 3.2.5 of his order, which are reproduced below for the sake of ready reference:- "3.2 Discussion and Decision: 3.2.1 Generally, the gifts may involve biological relatives, sociologically connected or unconnected persons; or politically or spiritually reverend individuals, etc. in cases where the gifts involve the biological relativ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ifts. In the circumstances of such failures, the adverse opinion of the Assessing Officer about the genuineness of the transaction of the impugned gift in itself constitutes evidence against the assessee. Further, the factum of transactions effected through the banking channels would not come to the rescue of the assessee. The genuineness of the gifts could not simply be accepted by merely banking on the transactions effected through the banking channels. 3.2.2 Under the provisions of section 68 what is to be seen are the aspects of the identity, creditworthiness, genuineness of the transaction and the discretion of the Assessing Officer. In the instant case, even the identity of the donor has not been convincingly established. Though a copy of the passport of the alleged donor has been given to the department, that is not an ample a proof to establish that it is the same person who had allegedly gift/sent the money. The alleged donor is a British passport holder whereas the alleged gift deed (dated 29.01.2003) has been signed in India by the donor. On perusal of the extract of the passport of the alleged donor, it is not ascertainable if the alleged donor was in India on that da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l love and affection between the donor and donee. A love and affection would be presumed to be natural between natural siblings, close friends for many years, or between blood relations. If it is established that donors and donee are closely related by blood or very close friends for many years then presumption of love and affection can be raised. An assessee/donee can show the existence of love and affection with donors by showing long standing acquaintance/relationship, frequent visits, and family photographs on different occasion and at different time intervals, mutual help at the time of need, deep knowledge about family and finance of each other, how the blood relation of donee knows the donor and vice versa etc. For a love and affection to be natural, the bondages must be time tested. In this case, the appellant has failed to bring anything on record to indicate that such bondage existed between the appellant and the alleged donor. 3.2.5 In this connection, the appellant has cited various case laws, which I have perused carefully. This is essentially a factual tissue and needs to be dealt with as such. However, while coming to the conclusions, I have kept in mind the princi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....igh Court in that case that even where the warrant of authorization has been issued jointly, the assessment can be made individually. 7. Now, we are left with the judgment of the Hon'ble Apex Court rendered in the case of CIT vs. Madhu Chawla (Supra) in course of deciding the SLP filed by the Revenue against the judgment of the Hon'ble Allahabad High Court rendered in the case of Madhu Chawla (Supra). We find that as per this judgment of the Hon'ble Apex Court, the SLP of the Revenue was dismissed without any discussion and this is by now a settled position of law that when the SLP is dismissed by the Hon'ble Apex Court without any discussion, such judgment of Hon'ble Apex Court is binding in the case in which it was rendered but does not lay down a law of land. Moreover, the Division Bench judgments of the Hon'ble Allahabad High Court in the case of CIT vs. Vandana Verma (Supra) and Madhu Chawla (Supra) were rendered prior to insertion of Section 292CC in the Income Tax Act by Finance Act, 2012 with retrospective effect from 01.04.1976 and both the judgments were rendered prior to this amendment in I.T. Act. It does not come out that the subsequent retrospective amendment in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is a person of means as supported by the financial documents of the business/institution run by him and on page No. 25 of the paper book is a list of companies stated to be owned by Mr. J. S. Pawar but that is meaningless because the assessee could not prove that the money in question has been transferred from the bank account of the said donor Mr. J. S. Pawar or of the entities owned by the said donor. The assessee has not brought on record the bank statement of the said donor or the concerned entity owned by the said donor. Copy of the affidavit cum gift deed of Mr. J. S. Pawar is available on page No. 15 of the paper book as per which he is residing at Kent U.K. and it is stated therein that in consideration of natural love and affection, he has gifted a sum of Pounds 7,000 to the assessee but in this affidavit cum gift deed also, it is nowhere stated that he is friend or relative of the assessee. This is also not stated in the affidavit cum gift deed that the money has been transferred from the bank account of the said donor. In view of this position noted by learned CIT(A) that as per the details of the transfer of the money as submitted by the assessee, it is seen that it do....