Case Law Details

Case Name : Kailash A. Kothari Vs ITO (ITAT Mumbai)
Appeal Number : ITA No. 2334/Mum/2012
Date of Judgement/Order : 01/11/2017
Related Assessment Year : 2007-08
Courts : All ITAT (4773) ITAT Mumbai (1543)

Kailash A. Kothari Vs ITO (ITAT Mumbai)

Learned departmental representative submitted that it is abundantly clear that the said donor has no capacity to give the said gift. He submitted that in absence of the cogency of the capacity, mere declaration of gift cannot be accepted as sufficient. He further submitted that the bank statement of the donor was never produced before the authorities below. The income declared by the donor was very meagre. Hence, the learned counsel submitted that the gift has rightly been added in the hands of the assessee as undisclosed income.

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. These persons are not filing the return of income. No statement of bank account of the said donor has been produced. No detail of the working of the opening balance in her hand has been produced. The husband of the sister is an accountant without much income. In this factual scenario, we find that it is abundantly clear that the said donor did not have the capacity to grant the gift of Rs. 11 lacs to the assessee. Hence, as the assessee has failed to discharge the onus regarding cogently proving the capacity of the donor to give the gift. Hence, we do not find any infirmity in the order of learned Commissioner -A.

FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-

This Appeal by the assessee is directed against the Order by the Commissioner (Appeals)-24, Mumbai (‘Commissioner (Appeals)’ for short) dated 20-1-2012 and pertains to the assessment year (assessment year) 2007-08.

2. The grounds of appeal read as under :–

1. The Learned Commissioner (Appeals) 24, Mumbai (hereinafter referred to as “the Learned Commissioner”) erred in law in recording that the Appeal is instituted against the Order passed by ITO–13(1)(3), under section 143(3) of the Income Tax 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 give gift by sister to her brother the Appellant.

5. The Learned Commissioner erred in law in not dealing with Ground No. 2 of the Grounds of Appeal, which read as follows;

“2. The Learned Income Tax Officer has erred in levying Interest under section 234 which is not in accordance with law.”

3. Brief facts of the case are that the assessee, during the year under consideration had received a gift of Rs. 11,00,000 from his elder sister in cash. It was noted by the assessing officer that the sister was not a regular income tax assessee and had no return of income for the assessment year 2007-08 was filed. The financial status of the sister was not so good so as to give a gift of such a big amount. She has three children and her husband was an accountant. No cash flow statement of the sister had been provided to prove the cash gift. The assessing officer, therefore, did not believe that the sister could give gift of such a huge amount. In view of the same, the assessing officer treated the gift claimed to have been received from the sister in cash as the income of the assessee for the year.

4. Against the above order, the assessee appealed before the learned Commissioner (Appeals).

5. The learned Commissioner (Appeals) noted the following submissions before him :–

2.2 In the appellate proceedings, learned Authorised Representative of the assessee submitted that the sister of the assessee had given the gift to him. She filed her return for the first time for the assessment year 2007-08 since her income in the earlier assessment years was below 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 10-4-2008. None of the above children were filing their returns of income in view of their incomes being below taxable limit.

6. Considering the above, the learned Commissioner (Appeals) by a very reasoned order upheld the action of the assessing officer. The learned Commissioner (Appeals) held as under :–

2.3 I have considered the facts of the case and the submissions made by the assessee. It is settled position of law that whenever cash is found credited in the books of the assessee, the onus is upon the assessee to prove the source of the same. For this purpose, the assessee is not only to prove the identity of the person from whom the money is claimed to have been received, the assessee is also required to prove the genuineness of the transaction as well as the creditworthiness of the person, in this case, the donor. It is clear from the facts on record that other than claiming that the money/cash had been gifted to him by his sister, the assessee has failed to prove the genuineness of the transaction and the creditworthiness of the donor.

3. As regards genuineness of the transaction, it is an undisputed fact that the alleged gift was received in cash. There is no evidence to show that the cash, in fact and in reality was received from the sister. It cannot be doubted that there would normally be love and affection between a brother and a sister. However, it defies all logic as to how and why a sister, who does not appear to be well off economically, whose husband is an accountant and whose children are still very young and are claimed to be earning some income by giving tuitions, would give 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 to their mother and what was the source of the said alleged gifts to the mother. The claim is unbelievable and cannot be accepted. Further, no other occasion has been shown by the assessee that they were in the habit of giving or receiving such huge amounts of gifts, either prior to the gift in question or later. Hence, the genuineness of the transaction is not established.

3.1 The above facts also prove that the sister who is alleged to have given gift to the assessee does not have the creditworthiness to give the gift of Rs. 11 lakhs. She has just been used to lend her name to give-some sort of authenticity as to the source of alleged gift. It has not been established in the case that the donor, in fact, had the capacity to give the gift. In fact, all facts and circumstances clearly show that she did not have the capacity and creditworthiness to give Rs. 11,00,000 to the assessee as gift. For one, it has not been shown that she or her children had earnings and savings of the amount of the alleged gift. Secondly, the donor is shown to the gift in cash and the children are also in turn shown to have ti£ Rs. 9.30 lakhs to their mother in cash. Undisputably, the donor and her family members are not well off economically. It is unacceptable that they would be keeping money amounting to such a huge amount as Rs. 11 lakhs in the form of cash.

3.2 From the above, it is clear that the assessee has not been able to discharge the onus cast upon him with regard of 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 been held that if there is enough material to raise a strong suspicion regarding nature of transaction, the authorities can reject the documents and require the assessee to show that the transaction is above board. There can be no meters to judge truth. The same has to be culminated out of the surrounding circumstances and have to be inferred. There may not be clinching evidences but if at various places the circumstances are doubtful, the natural corollary is that such transaction was only paper transaction and cannot accord acceptability of such make belief transactions. In case of Smt Vasantibai N. Shah 213 ITR 805 (Bom), the Hon’ble High Court observed that the Income Tax Officer is entitled to take into consideration the totality of the facts and circumstances of the case and to draw his own inference on the basis thereof and circumstantial evidence in such cases is not impermissible. In cases like this, it is only the circumstantial evidence which will be available. No direct evidence can be expected…….. In case of Durga Prasad More 82 ITR 540 (SC), the Hon’ble Supreme Court observed that the taxing authorities are not required to put on blinkers while looking at the documents produced before them. They are entitled to look into the surrounding circumstances to find out the reality of the recitals made. The proceedings under the Income Tax Act are civil proceedings and the liability therefore can be fastened on the basis of circumstantial evidence also, as held 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 and the facts show that neither was there any occasion to give the gift nor was there any purpose or reason to give the alleged gift.

5. In view of the aforesaid reasons, the action of the assessing officer of assessing the above amount of R.s.11,00,000 as the income of the assessee is upheld. The ground of appeal filed by the assessee is dismissed.

7. Against the above order, the assessee is in appeal before us.

8. We have heard both the counsel and perused the records. Learned counsel of the assessee submitted that the assessee has all the necessary documentary evidence. The authorities below have erred in not accepting the veracity of the same. He further submitted that no material has been brought on record that the said gift is false. He further referred to following case laws :–

1. ITA Nos. 6,8,9,10 and 39/Vizag/2015 in the case of Dr.Vempala Bala Manohar v. ITO; and

2. Hon’ble Delhi High Court decision in the case of CIT v. Sudhir Budhraja (in ITA No. 59/2003, dt. 13-10-2015).

9. Per Contra, the learned departmental representative submitted that it is abundantly clear that the said donor has no capacity to give the said gift. He submitted that in absence of the cogency of the capacity, mere declaration of gift cannot be accepted as sufficient. He further submitted that the bank statement of the donor was never produced before the authorities below. The income declared by the donor was very meagre. Hence, the learned counsel submitted 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. These persons are not filing the return of income. No statement of bank account of the said donor has been produced. No detail of the working of the opening balance in her hand has been produced. The husband of the sister is an accountant without much income. In this factual scenario, we find that it is abundantly clear that the said donor did not have the capacity to grant the gift of Rs. 11 lacs to the assessee. Hence, as the assessee has failed to discharge the onus regarding cogently proving the capacity of the donor to give the gift. Hence, we do not find any infirmity in the order of learned Commissioner -A.

11. The case laws relied upon by the learned counsel of the assessee are not applicable on the facts of the case. In none of those cases, it was emanating that gifts should be allowed when it is abundantly clear that the donor had no capacity to give the gift.

12. Accordingly, in the background of aforesaid discussion and precedent, we do not find any infirmity in the order of learned Commissioner -A. Accordingly we uphold the same.

13. In the result, this appeal filed by the assessee stands dismissed.

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