22. Applying the ratio of the judgment of Hon’ble Supreme Court and jurisdictional Delhi High Court and judgment of High Court of Punjab & Haryana in above referred cases to the present case before us, the position of law applicable to the present case, in our opinion, would be as under:-
(i) Mere identification of donor and showing movements of gift amount through banking channels is not sufficient to prove the genuineness of the gift,
(ii) Since the claim of the gift is made by the assessee, the onus lies on him not only to establish the identity of the person making the gift but also his capacity to such a gift. The assessee has to prove that the money has actually been received as a gift from donor,
(iii) It is the burden of the assessee to showrf and demonstrate what kind of relationship or what kind of love and affection the donor has with the assessee, and to explain circumstances in which gift were made.
(iv) If the explanation as regards the claim of the gift offered by the assessee is not proper, reasonable and acceptable one, an inevitable conclusion would be drawn that the assessee has not offered any explanation, as the expression “the assessee offers no explanation” means the assessee offers no proper, reasonable and acceptable explanation (see P. Mohanakala 291 ITR 278 (SC).
(v)The opinion of the A.O. for not accepting the explanation offered by the assessee as not satisfactory or proper or reasonable or acceptable is required to be based on proper appreciation of material and other attending circumstances available on record. The opinion of the A.O. is required to be formed objectively with reference to the material available on record. Application of mind is the sine qua non for forming the opinion by the A.O.
(vi) In cases where the explanation offered by the assessee about the nature and source of the money received by the assessee is not satisfactory, there is, prima facie, evidence against the assessee, viz, the receipt of money. The burden is on the assessee to rebut the same, and, if he fails to rebut it, it can be held against the assessee that it was a receipt of an income nature,
(vii) The burden is on the assessee to prove and establish that, even if the explanation offered by the assessee is not acceptable, the material and attending circumstances -available on record do not justify the money received by the assessee being not treated as a receipt of income nature. In the present case, it is the assessee who has made a claim that he had received the sum of Rs. 3,00,000/- and Rs. 3,92,672/- by way of gift from two persons viz; (1) Shri J.B. Malik and (2) Shri Y.P. Malik respectively. Thus, the onus lies on the assessee not to establish the identity of the aforesaid persons making the gift but their capacity to make such a gift, that the amount has actually been received as a gift from said donors, what kind of relationship or love and affection these donors had with the assessee, and in what circumstances the alleged gifts were made. It is only after the assessee discharges his aforesaid burdens, the AO shall be required to rebut the assessee’s case in case he intends to treat the gift as of income nature.
29. As already stated above, mere receipt of the amount through banking channels is by itself not sufficient to prove the genuineness of the gift. Here, we are concerned with the genuineness of the gift and not about the mode of payment. Here, we are concerned with the question as to whether the payment received by the assessee represents a genuine gift. It was the assessee’s burden to prove and establish the capacity of the donor and what kind of relationship assessee had with the donor so that the donor had given an irrevocable gift of Rs. 3,00,000/- to the assessee, and till the assessee discharges his initial and primary burden, it is not for the A.O. to prove or establish otherwise. Therefore, the assessee’s contention that A.O. should have rebut the assessee’s case by bringing on record any material to the contrary has no legs to stand.
30. Since the primary and initial onus lies on the assessee has not been discharged, the A.O. was very much justified in drawing a conclusion that the assessee has been unable to prove and establish that the amount of Rs. 3,00,000/- received by him was actually received as a gift from Shri Y.P. Malik, and the same is liable to be assessed as income of the assessee. Having regard to the totality of the facts and circumstances of the present case, we are therefore, of the considered opinion that the assessee has miserably failed to prove that the sum of Rs. 3,00,000/ transferred from bank account of Shri J.B. MAlik to the assessee’s account represents irrevocable gift give by Shri J. B. Malik to the assessee.