2017 (11) TMI 320

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....e Learned Commissioner") erred in law in recording that the Appeal is instituted against the Order passed by ITO - 13(1)(3), u/s 143(3) of the I. T. Act, 1961 on 31/12/2010. 2. The Learned Commissioner erred in law in upholding the Order of the Assessing Officer of adding the Cash Gift amount of Rs. 11,00,000.00 given by the Assessee's Sister to him as his income. He ought not to have done so. 3. The Learned Commissioner erred in law in rejecting the Affidavit and Declaration of Gift by Mrs. Badamiben N. Jain, Sister of the Appellant and doubting her creditworthiness. He ought not to have done so. 4. The Learned Commissioner erred in law in holding that neither there was any occasion nor purpose or reason to g....

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.... the taxable limit. The age of the donor was around 49 years. The source of the money for giving gift to her brother was explained to be gift of Rs. 3,00,000/-, Rs. 3,50,000/- and Rs. 2,80,000/- received by the donor from her two daughters and son respectively and out of her opening cash balance. As regards the details of the children of the donor, it has been submitted that the two daughters had finished 1st year B. Com (Payal Kumar NJain) and 2nd yr. B.Com(Reena Kumari N.Jain) and were not studying further. They were giving tuitions at home. Son, Shri Parag Kr.Jain was a graduate and was working for a company during the period 17/12/2004 to 10/04/2008. None of the above children were filing their returns of income in view of their incomes....

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....ive such huge amount of Rs. 11,00,000/- as gift. No social occasion for giving of the gift has also been brought on record. It appears that the assessee is much better off than the sister economically. In the Indian culture, normally it is the brother who gives gifts to his sisters. This is not to say that sisters do not or never give gifts to their brothers. However, in this case, we are talking of an amount of Rs. 11,00,000/- which is claimed to have been received as gift. The donor undisputably does not have so much money. She has claimed to have received gifts of Rs. 9.30 lakhs from her children to in turn given the alleged gift to her brother. It has not been shown as to why and on what occasion the children have gifted Rs. 9.30 lakhs ....

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.... the credit of money in the form of alleged gift and has failed to prove the genuineness of the transaction as well as the creditworthiness of the alleged donor. Although, the assessee has claimed that the gift was given by his sister, all facts and circumstances clearly show that no such gift, in fact, could have been given by his sister. Rather, the assessee has only tried to route his unaccounted money in his books by claiming that such money was a gift from his sister. 4. The affidavit and gift declaration filed by the donor would not be of any help to the assessee as these are only self-serving documents which is clear from the discussions hereinabove. 4.1 In case of Ashok Mahindru & Sons (HUF) 173 Taxman 178 (Del), it has bee....

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....in the case Smt Sumati Dayal 214 ITR 801(SC). In case of J S Parker 94 ITR 616 (Bom) it has been" held that "the tax liability under the Income tax Act is of civil nature. To fasten a tax payer with such a liability, it is not necessary that the evidence should be in the nature of "beyond doubt" as is required to fix a criminal liability. Tax liability can be fastened on the basis of preponderance of probabilities". Perusal and examination of the facts in the case of the assessee clearly show that the donor did not have the creditworthiness to gift away the amount of Rs. 11,00,000/- to the assessee and even the genuineness of the transaction has not been proved by the assessee. All the transactions relating to the alleged gift are in cash a....

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.... that the gift has rightly been added in the hands of the assessee as undisclosed income. 10. We have carefully considered the submissions and perused the records. We find that in this case the assessee has claimed to have received a gift of Rs. 11 lacs from his elder sister. The sister had shown statement of income of Rs. 93,112/- for assessment year 2007-08. No return of income was filed. The source of gift in the hands of the sister has been further explained as gift from her two daughters and son at Rs. 3,00,000/-, Rs. 3,50,000/- and Rs. 2,80,000/- respectively. Rest amounts have been claimed to have come from the opening balances in the hands of the assessee. The daughters are still students and the son has just taken up a job. Thes....