Shri Lilaben Labhubhai Lakhani, Surat v. The Income tax Officer, Ward-9(2),, Surat

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD A BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND T.K. SHARMA JUDICIAL MEMBER) ITA NO. APPELLANT RESPONDENT 2361/AHD/2005 [AY : 2002-2003] LAKHANI LABHUBHAI DHARMASHI BHAI 78 SADHNA SOCIETY VARACHHA ROAD SURAT. VS ITO WARD-9(2) SURAT. 2362/AHD/2005 [AY : 2002-2003] LAKHANI LILABEN LABHUBHAI 78 SADHNA SOCIETY VARACHHA ROAD SURAT. VS ITO WARD-9(2) SURAT. 2569/AHD/2006 [AY : 2003-2004] LABHUBHAI D. LAKHANI 78 SADHNA SOCIETY VARACHHA ROAD SURAT. VS. ITO WARD-9(2) SURAT. 373/AHD/2007 [AY : 2003-2004] LAKHANI LILABEN LABHUBHAI 78 SADHNA SOCIETY VARACHHA ROAD SURAT. VS. ITO WARD-9(2) SURAT. 2835/AHD/2007 [AY: 2003-2004 LAKHANI MEHUL LABHUBHAI 78 SADHNA SOCIETY VARACHHA ROAD SURAT. VS. ITO WARD-9(2) SURAT. ASSESSEE BY : SHRI DIVYAKANT PARIKH REVENUE BY : SHRI A.K.KHANDELWAL O R D E R PER G.D. AGARWAL VICE-PRESIDENT : THESE ARE FIVE APPEALS BY THE ASSESSEE AGAINST THE ORDERS OF THE CIT(A) SURAT AR ISING OUT OF THE ORDERS OF THE AO PASSED UNDER SECTION 143(3) OF THE INCOME TAX AC T 1961. ITA NO.2361/AHD/2005 2. IN THIS APPEAL BY THE ASSESSEE SEVERAL GROUNDS A RE RAISED IN THE MEMORANDUM OF APPEAL. HOWEVER AT THE TIME OF HEAR ING BEFORE US IT IS STATED BY THE LEARNED COUNSEL THAT THE ONLY ISSUE INVOLVED IN THIS APPEAL IS AGAINST THE ADDITION OF RS.7 65 000/- MADE BY THE AO ON ACCOUNT OF ALLEGED UNEXPLAINED GIFTS WHICH WAS SUSTAINED BY THE CIT(A). HE SUBMIT TED THAT DURING THE PAGE - 2 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -2- ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UND ER CONSIDERATION THE ASSESSEE HAS RECEIVED TOTAL GIFT OF RS.7 65 000/- A S UNDER: SR.NO. NAME OF DONOR AMOUNT (RS.) 1. SHRI DHARMASHIBHAI MAVJIBHAI LAKHANI 49 500 2. SHRI GHANSHYAMBHAI SAVJIBHIA LAKHANI 49 500 3. SHRI TULSHIBHAI SAVJIBHAI LAKHANI 32 500 4. SHRI SAVJIBHAI MAGANBHAI LAKHANI 49 500 5. SHRI JERAJBHAI SAVJIBHAI LAKHANI 49 500 6. SHRI SMT.DIWALIBEN D. LAKHANI 49 500 7. SHRI NARESH JIVRAJ DHAMELIYA 40 000 8. JIVRAJBHAI GOPALBHAI DHAMELIYA 35 000 9. SHRI DEVJIBHAI MAVJIBHAI LAKHANI 45 500 10. SHRI PURSHOTTAMBHAI DAYALBHAI SAWANI 49 000 11. SHRI HIRABHAI JIVRAJBHAI DHAMELIYA 35 000 12. SHRI ASHWINBHAI LALJIBHAI SAWANI 1 15 000 13. SHRI ASHWINBHAI LALJIBHAI SAWANI 70 000 14. SHRI DEVJIBHAI MAVJIBHAI LAKHANI 48 000 15 SHRI PURSHOTTAMBHAI DAYALBHAI SAWANI 47 500 TOTAL 7 65 000 THAT THE DONORS ARE MOSTLY RELATIVES OF THE ASSESSE E. THAT THE MAJORITY OF THE DONORS HAVE BEEN PRODUCED BEFORE THE AO DURING THE REMAND PROCEEDINGS AND THEY HAVE CONFIRMED HAVING GIVEN GIFTS TO THE ASSES SEE. THAT THE DONORS HAVE DISCLOSED THEIR SOURCE OF INCOME AND ALSO THE EVIDE NCES FOR AGRICULTURAL INCOME OR SALARY INCOME ETC. THUS THE ASSESSEE HAS DULY DISCHARGED ONUS OF PROVING THE GIFT. IN SUPPORT OF THIS CONTENTION HE RELIED UPON THE FOLLOWING DECISIONS: I) COMMISSIONER OF INCOME-TAX VS. ORISSA CORPORATION P . LTD. 159 ITR 78 (SC); II) MULIDHAR LAHORIMAL VS. CIT 280 ITR 512 (GUJ) III) AVNISH KUMAR SINGH VS. ITO 27 DTR AGRA (TM) 241 IV) ITO VS. SANJAY KUMAR GOEL 160 TAXMAN 169 V) A. RAJENDRAN & ORS. VS. ACIT 204 CTR 9 (MAD) VI) ITO VS. M.S.ADVANCE P. LTD. 93 TTJ (AMRISTAR) 778 VII) ITO VS. O.M. SHAHUL HAMEED 106 ITD 342 (CHENNAI). 3. HE ALSO SUBMITTED THAT THE AO AS WELL AS THE CIT (A) HAS WRONGLY RELIED UPON THE DECISION OF THE APEX COURT IN THE CASE OF COMMISSIONER OF INCOME- PAGE - 3 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -3- TAX VS. DURGA PRASAD MORE 82 ITR 540 AND SUMATI DA YAL VS. CIT 214 ITR 801 (SC). THE FACTS IN THE ASSESSEES CASE ARE A LTOGETHER DIFFERENT THAN THE FACTS IN THE ABOVEMENTIONED CASE. THEREFORE THE A BOVE TWO DECISIONS OF THE HONBLE APEX COURT ARE NOT APPLICABLE TO THE FACTS OF THE ASSESSEES CASE. HE THEREFORE SUBMITTED THAT THE ADDITION OF RS.7 65 00 0/- FOR ALLEGED UNEXPLAINED GIFT SHOULD BE DELETED. 4. THE LEARNED DR ON THE OTHER HAND HAS STATED THA T DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDER ATION THE ASSESSEE RECEIVED TOTAL GIFT OF RS.7 65 000/- FROM TWELVE DONORS TH REE DONORS HAVE GIVEN THE GIFT TWICE DURING THE SAME YEAR. TOTAL GIFTS RECEI VED BY THE ASSESSEE AND HIS FAMILY MEMBERS WAS AMOUNTING TO RS.37 74 571/-. CO MPLETE DETAILS OF WHICH ARE GIVEN AT PAGE NO.6 TO 8 OF THE ASSESSMENT ORDER . OUT OF LARGE NUMBER OF THE DONORS ONLY ONE DONOR IS ASSESSED TO TAX. THE GIF T IS CLAIMED TO HAVE BEEN GIVEN BY WAY OF DEMAND DRAFTS TAKEN BY SEVERAL PERS ONS. ALL DEMAND DRAFTS ARE PURCHASED BY CASH EVEN THOUGH SOME OF DONORS WERE H AVING THE BANK ACCOUNT. THAT THE DDS. WERE PURCHASED FROM THE SAME BRANCH O F THE BANK HAVING CONSECUTIVE SERIAL NUMBERS. THE STAMP-PAPERS FOR T HE GIFTS DEEDS WERE PURCHASED AT SURAT WHEN MOST OF THE DONORS ARE RESI DING OUT OF SURAT. THE STAMP PAPER IS PURCHASED NOT BY THE DONOR OR THE DO NEE BUT BY SOME THIRD PARTY. THAT NONE OF THE DONOR HAS BEEN ABLE TO PROVE THE C REDIT-WORTHINESS FOR MAKING GIFTS TO THE ASSESSEE. THE GIFT WAS ONLY ONE WAY T RAFFIC I.E. IT WAS THE ASSESSEE WHO RECEIVED THE GIFT FROM SO MANY PERSONS WITHOUT RECIPROCATING A SINGLE GIFT TO ANYBODY. HE THEREFORE SUBMITTED THAT IN THIS CA SE NEITHER THE CREDIT WORTHINESS OF THE DONOR NOR THE GENUINENESS OF THE TRANSACTION IS PROVED. HE RELIED UPON THE DETAILS RECORDED BY THE AO IN THE A SSESSMENT ORDER AND REMAND REPORT. HE FURTHER RELIED UPON THE FOLLOWING JUDIC IAL PRONOUNCEMENTS: I) ORIENTAL WIRE INDUSTRIES P. LTD. VS. COMMISSIONER O F INCOME- TAX 131 ITR 688 (CAL) PAGE - 4 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -4- II) COMMISSIONER OF INCOME-TAX VS MANSURALI VALIBHAI DU DHANI (GUJ) 148 ITR 526 (GUJ) III) COMMISSIONER OF INCOME-TAX VS MOTOR GENERAL FINANCE LTD. (DEL) 254 ITR 449 (DEL) IV) COMMISSIONER OF INCOME-TAX VS P. MOHANAKALA (SC) 291 ITR 278 V) SAJAN DASS AND SONS VS COMMISSIONER OF INCOME-TAX (DEL) 264 ITR 435 (DEL) VI) D.C. RASTOGI (HUF) VS. ASSISTANT COMMISSIONER OF IN COME-TAX 87 ITD 295 (DEL) HE ALSO DISTINGUISHED THE VARIOUS CASES RELIED UPON BY THE LEARNED COUNSEL AND STATED THAT THE FACTS OF THE CASE ARE ALTOGETHER DI FFERENT THAN THE FACTS IN THE CASES RELIED UPON BY THE LEARNED COUNSEL. HE ALSO STATED THAT ON THE ABOVE FACTS THE DECISIONS RELIED UPON BY THE AO IN THE C ASE OF DURGA PRASAD MORE AND SUMATI DAYAL (SUPRA) WOULD BE SQUARELY APPLICAB LE. HE THEREFORE SUBMITTED THAT THE ORDER OF THE CIT(A)SHOULD BE SUS TAINED. 5. IN THE REJOINDER IT IS STATED BY THE LEARNED CO UNSEL THAT THE RECIPROCAL OF THE GIFT BY THE ASSESSEE IS NOT NECESSARY TO ESTABL ISH THE GENUINENESS OF THE GIFT RECEIVED BY THE ASSESSEE. HE FURTHER SUBMITTED THAT THE CONTENTION OF THE LEARNED DR WITH REGARD TO PURCHASE OF STAMP-PAPERS BY THE OTHER PERSONS OR THE MAKING OF THE DRAFTS IN CASH MAY AT THE MOST RAISE SUSPICION BUT THE SUSPICION CANNOT TAKE PLACE OF EVIDENCES. THE EVIDENCE ON RE CORD IS THAT THE DONORS WHO ARE THE RELATIVES OF THE ASSESSEE HAVE GIVEN THE GI FT BY DD/CHEQUES TO THE ASSESSEE. THEY HAVE CONFIRMED THE GIFT BY WAY OF G IFT DEEDS DULY EXECUTED ON THE STAMP-PAPERS AND MOST OF THE DONORS APPEARED BE FORE THE AO AND HAVE ALSO CONFIRMED THE GIFT THEREFORE THE ASSESSEE HAS DUL Y DISCHARGED THE ONUS WHICH LIES UPON HIM. HE THEREFORE SUBMITTED THAT THE ADD ITION OF RS.7 65 000/- MADE BY THE AO AND SUSTAINED BY THE CIT(A) MAY BE DELETE D. 6. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIALS PLACED BEFORE US. DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESS EE HAS CLAIMED TO HAVE PAGE - 5 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -5- RECEIVED GIFT OF RS.7 65 000/-. THE GIFT WAS FROM TWELVE PERSONS. OUT OF WHICH THREE PERSONS HAVE CLAIMED TO HAVE GIFTED THE AMOUNTS TWICE. THE COMPLETE DETAILS OF WHICH ARE REPRODUCED IN PARA-2. DURING THE ASSESSMENT PROCEEDINGS THE AO ASKED THE ASSESSEE TO PRODUCE T HE DONORS AS WELL AS THE EVIDENCES IN SUPPORT OF THE GIFT. HOWEVER ON THE DATE OF HEARING NEITHER THE ASSESSEE NOR AUTHORIZED REPRESENTATIVE APPEARED BEF ORE THE AO. NO DETAILS WERE FURNISHED BEFORE THE AO AND THE DONORS WERE AL SO NOT PRODUCED. THEREFORE THE ASSESSING OFFICER TREATED THE GIFT O F RS.7 65 000/- AS UNEXPLAINED AND MADE ADDITION THEREFOR. DURING THE APPELLATE PROCEEDINGS BEFORE THE CIT(A) THE ASSESSEE CLAIMED THAT THE AO ALLOWED ONLY ONE OPPORTUNITY TO PRODUCE THE EVIDENCE AS WELL AS THE DONORS. THE TIME ALLOWED WAS ALSO NOT SUFFICIENT AND THEREFORE THE ASSESSEE COULD NOT PRODUCE THE EVIDENCE BEFORE THE AO. ON THIS GROUND THE ASSESS EE REQUESTED FOR THE ADMISSION OF THE ADDITIONAL EVIDENCE BEFORE THE CIT (A). THE CIT(A) ACCEPTED THE ASSESSEES CONTENTION AND ON THE ADDITIONAL EVI DENCES SUBMITTED BY THE ASSESSEE ASKED FOR THE REMAND REPORT FROM THE AO. DURING THE REMAND PROCEEDINGS FOLLOWING EIGHT DONORS WERE PRODUCED W HOSE STATEMENTS WERE RECORDED. 1 SHRI GHANSHYAMBHAI SAVJIBHAI LAKHANI 2. SHRI TULSIBHAI SAVJIBHAI LAKHANI 3. SHRI DEVJIBHAI MAVJIBHAI LAKHANI 4. SHRI HIRALAL JIVRAJBHAI DHAMELIYA 5. SHRI NARESH JIVRAJ DHAMELIYA 6. SHRI ASHWINBHAI LALJIBHAI SAVANI 7. SHRI PURSHOTTAMBHAI DIYALBHAI SAWANI 8. SHRI JAIRAJBHAI SAVJIBHAI LAKHANI THE FOLLOWING FOUR PERSONS WERE NOT PRODUCED. 1 SHRI SAVJIBHAI M. LAKHANI 2. SHRI DHARAMSHIBHAI MAVAJIBHAI LAKHANI 3. SHRI JIVRAJBHAI GOPALBHAI DHAMELIYA 4. DIWALIBEN D. LAKHANI PAGE - 6 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -6- 7. THE AO HAS DISCUSSED THE STATEMENT OF ALL THE EI GHT PERSONS IN THE REMAND REPORT AND ALSO THE EVIDENCES PRODUCED IN RE SPECT OF THE REMAINING FOUR PERSONS. THE CIT(A) HAS DISCUSSED THE SAME FROM PA GE NOS.3 TO 9 OF HIS ORDER. THE REMAND REPORT WAS ALSO GIVEN TO THE ASSESSEE FO R HIS COMMENTS AND AFTER CONSIDERING THE REMAND REPORT AS WELL AS THE CONTEN TION OF THE ASSESSEE ON THE REMAND REPORT THE CIT(A) HELD AS UNDER: 2.4 I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND THE OBSERVATION OF THE AO. THE APPELLANT HAS FAILED TO SHOW WHY THERE WAS SUCH GREAT DESIRE AND NEED WHICH THE APPELLANT'S RE LATIVE HAD GIVING GIFT TO THE APPELLANT APPELLANT'S WIFE SON AND DAUGHTE R. FURTHER IT IS SEEN THAT ALL THESE GIFTS HAVE BEEN MADE AGAIN AND AGAIN IN THE YEAR 1999 IN 2000 2002 AND IN 2003 AS CAN BE SEEN FROM PAGE 6 T O 8 OF THE ASSESSMENT ORDER. THE APPELLANT HAS FAILED TO GIVE REASON AS TO WHY THESE RELATIVES/DONORS WHO WERE HAVING ONLY TV. F RIDGE AND BULLOCK CART AT HOME WERE COMPELLED BY LOVE AND AFFECTION TO GIVE GIFT TO THE ASSESSEE WHO WAS HAVING CAR MOTORCYCLE T.V. FRE EZE AND WHOSE ANNUAL INCOME WAS MUCH MUCH GREATER THAN THE ANNUAL INCOME OF THE DONOR. THE APPELLANT HAS FAILED TO EXPLAIN AS TO WH Y THE STAMP PAPER ON WHICH GIFT DEED HAS BEEN PREPARED ARE IN THE NAME O F SOME THIRD PARTY AND NOT IN THE NAME OF THE DONORS. IN ALL THE CASES THE DONORS HAVE FAILED TO PRODUCE THE COPY OF BANK STATEMENT TO SHOW THE G ENUINENESS OF TRANSACTION AND CREDITWORTHINESS. IN ALL THE CASES THE DONORS HAVE STATED THAT THEY HAD CASH AVAILABLE WITH THEM WHICH WAS DE POSITED IN THE BANK ACCOUNT FROM WHICH THE D.D. WAS MADE. THEY FAILED T O EXPLAIN WHY SUCH HUGE MONEY WAS KEPT AT HOME IN CASH AND NOT IN BANK . THE MAJOR CONTRADICTION FOUND IS THAT AT A SINGLE DATE TWO DI FFERENT DONORS CLAIMED TO HAVE GIVEN GIFTS AT TWO DIFFERENT PLACES. FOR EX AMPLE THE FOUR DONORS STATED THAT ON 22.3.2002 THEY HAVE GIFTED AMOUNT AT SURAT AND ONE DONOR NAMELY SHRI PURSHOTTAMBHAI D. LAKHANI STATED THAT H E HAS GIFTED AMOUNT AT BHAVNAGAR. THE SAME CONTRADICTION FOUND F OR THE GIFTS DATED 26.3.2002 AS MENTIONED ABOVE. THE OTHER MATTER RELA TES TO THE MONTHS OF GIFTS RECEIVED. HOW ALL THESE DONORS INSPIRED TO GI VE GIFT ONLY IN THE MONTHS OF FEBRUARY AND MARCH OF 2002 ONLY AND THAT IS ALSO ON THE SAME DAY. UNDER THE CIRCUMSTANCES I AM OF THE OPINI ON THAT THE ASSESSEE HAS FABRICATED ALL THESE GIFTS. IN VIEW OF THESE RE ASONS I AGREE WITH THE A.O. THAT THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SRILEKHA BANERJEE VS. CIT 49 ITR 112 CIT WEST BENGAL-II VS . DURGA PRASAD MORE 82 ITR 540 AND SUMATI DAYAL VS. CIT 214 ITR 80 1 ARE APPLICABLE. AS PER THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF SRILEKHA BANERJEE VS. CIT 49 ITR 112 THE BURDEN OF PROOF WAS ON THE ASSESSEE WHICH HAS NOT BEEN DISCHARGED. THE SUPREME COURT IN THE CASE PAGE - 7 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -7- OF CIT WEST BENGAL-II VS. DURGA PRASAD MORE 82 ITR 540 HAS STATED THAT 'IT IS TRUE THAT THE APPARENT MUST BE CONSIDER ED REAL UNTIL IT IS SHOWN THAT THERE ARE REASONS TO DISBELIEF AND THE TAXING AUTHORITIES ARE ENTITLED TO LOOK INTO THE SURROUNDING CIRCUMSTANCES TO FIND OUT THE MATTER HAS TO BE CONSIDERED BY APPLYING THE TEST OF HUMAN PROBABI LITIES. IN THE CASE OF SUMATI DAYAL VS. CIT 214 ITR 801 THE HONBLE SUPR EME COURT STATED THAT THE CLAIM OF THE ASSESSEE WINNING JACKPOTS SEV ERAL TIMES WAS CONTRARY TO THE STATISTICAL THEORIES AND EXPERIENCE OF THE FREQUENCIES AND PROBABILITIES. IT IS AGAINST ALL HUMAN PROBABILITI ES THAT THE RELATIVES KEPT ON GIVING GIFT WHEN THEY WERE MUCH POORER THAN THE APPELLANT AND THEY GAVE GIFT TO THE ASSESSEE HIS WIFE SON AND DAUGHT ER YEAR AFTER YEAR ON 71 OCCASIONS AND OF SUCH HUGE SUMS AS RS.37 74 571. IN VIEW OF THESE REASONS THE GENUINENESS OF THE GIFTS ARE NOT PROVE D AND THE ADDITION MADE BY THE AO IS CONFIRMED AND THE GROUND OF APPEA LS ARE DISMISSED. 8. AT THE TIME OF HEARING BEFORE US THE LEARNED CO UNSEL FOR THE ASSESSEE WAS UNABLE TO CONTROVERT TO THE ABOVE FACTUAL FINDI NG RECORDED BY THE LEARNED CIT(A). IT IS A SETTLED LAW THAT ONUS TO PROVE THE GIFT CLAIMED TO HAVE BEEN RECEIVED BY THE ASSESSEE IS UPON THE ASSESSEE. TO DISCHARGE SUCH ONUS THE ASSESSEE HAS TO ESTABLISH (I) IDENTITY OF THE DONOR (II) CREDIT-WORTHINESS OF THE DONOR AND (III) GENUINENESS OF THE GIFT. IN THIS C ASE THE IDENTITY OF THE DONORS IS NOT IN DISPUTE BUT THE CREDIT-WORTHINESS OF THE DON OR AS WELL AS THE GENUINENESS OF THE GIFT IS SERIOUSLY DISPUTED BY THE AO WHICH IS SUSTAINED BY THE CIT(A). OUT OF TWELVE DONORS ONLY ONE DONOR IS CLAIMED TO BE ASSESSED TO TAX. REMAINING ELEVEN DONORS ARE NOT ASSESSED TO TAX AND MOST OF THEM HAVE CLAIMED TO BE HAVING AGRICULTURE INCOME ONLY. HOWE VER EVEN IN SUPPORT OF THE AGRICULTURE INCOME NO OTHER EVIDENCE EXCEPT EXTRACT OF 7/12 (WHICH IS THE LAND REVENUE RECORD SHOWING THE OWNERSHIP OF THE AGRICUL TURE LAND) IS FURNISHED. NO EVIDENCE OF AGRICULTURE ACTIVITY ACTUALLY CARRIED O N BY THE DONORS AND EXTENT OF AGRICULTURE INCOME IS PRODUCED. NO SALE BILLS FOR SALE OF AGRICULTURE PRODUCE AND THE PURCHASE BILLS FOR PURCHASE OF SEEDS FERTI LIZERS ETC. IS PRODUCED. OUT OF TWELVE DONORS EIGHT DONORS WERE PRODUCED IN THE RE MAND PROCEEDINGS HOWEVER EVEN IN THEIR STATEMENT THOUGH THEY CLAIM OF HAVING AGRICULTURE INCOME NO DOCUMENTARY EVIDENCE IN SUPPORT OF AGRICU LTURE INCOME IS PRODUCED. IN THE REMAND REPORT THE AO HAS POINTED OUT THAT T HE CLAIM OF AGRICULTURE PAGE - 8 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -8- INCOME IS DISPROPORTIONATE TO THE AGRICULTURE LAND POSSESSED BY THEM. THE REMAND REPORT IS REPRODUCED BY THE CIT(A) FROM PAGE NOS.3 TO 9 OF HIS ORDER. NO DONOR HAS POSSESSED AGRICULTURE EQUIPMENTS LIKE TRACTOR ETC. FOR PROPER CULTIVATION OF LAND. MOST OF THEM HAVE CLAIMED TO POSSESS BULLOCK CART AND OTHER SMALL INSTRUMENTS FOR THE PURPOSE OF AGRICULT URE. THE LAND HOLDING OF THE MOST OF THE DONORS IS SMALL ONE THAT TOO UN-IRRIGAT ED. ONE DONOR VIZ. SHRI HIRABHAI JIVRAJBHAI DHAMELIYA CLAIMED TO HAVE INCOM E FROM ESTATE BROKERAGE. HOWEVER HE DID NOT FILE ANY RETURN OF INCOME AND G IFT CLAIMED TO HAVE BEEN MADE BY HIM TO THE ASSESSEE AND HIS WIFE IS RS.80 0 00/- (RS.35 000/- TO THE ASSESSEE AND RS.45 000/-) TO SMT.LEELABEN WIFE OF T HE ASSESSEE). IT IS ALSO IMPORTANT TO NOTE THAT THE GIFTS HAVE BEEN MADE BY DEMAND DRAFTS TAKEN FROM ONE BRANCH OF THE BANK WITH CONSECUTIVE SERIAL NUMB ERS OF THE DRAFT. MOST OF THE DONORS ARE RESIDING AT BHAVNAGAR BUT THE STAMP PAPERS FOR THE PURPOSE OF GIFT WERE PURCHASED AT SURAT THAT TOO MUCH IN ADVAN CE THAN THE DATE OF THE GIFT. THE ASSESSEE AND HIS FAMILY MEMBERS HAVE RECEIVED G IFTS YEAR AFTER YEAR ON SEVENTY ONE OCCASIONS AMOUNTING TO RS.37 74 571/- W ITHOUT RECIPROCATING A SINGLE GIFT TO ANYBODY. THE GIFT IS CLAIMED TO HAV E BEEN MADE BY THE PERSONS WHO POSSESS ONLY THE BULLOCK CART TO THE ASSESSEE W HO OWNS MOTOR CAR. THUS IT IS A CASE WHERE SO MANY POOR PERSONS CLAIMED TO HAV E GIFTED SUBSTANTIAL AMOUNT TO RICH PERSON. ONE DONOR VIZ. NARESH JIVARA JBHAI IS CLAIMED TO BE ASSESSED TO TAX. HOWEVER NO DETAILS WITH REGARD T O FILING OF THE INCOME TAX RETURNS AND WHETHER THIS GIFT IS SHOWN BY HIM IN HI S CAPITAL ACCOUNT/BALANCE SHEET IF ANY PREPARED BY THE ASSESSEE HAS BEEN FUR NISHED. EVEN COPY OF RETURN OR ACKNOWLEDGEMENT FOR FILING OF RETURN IS NOT PROD UCED. HE IS CLAIMED TO BE GOVERNMENT EMPLOYEE. BUT WHETHER ANY INTIMATION WI TH REGARD TO SUCH GIFTS IS GIVEN TO THE EMPLOYER IS ALSO NOT FURNISHED. THOU GH HE IS A GOVERNMENT EMPLOYEE AND MAINTAINING BANK ACCOUNT BUT HE CLAIM ED TO HAVE MADE THE GIFT BY WAY OF DD TAKEN IN CASH AND NOT BY CHEQUE. IT WA S EXPLAINED BY HIM THAT THE DRAFT WAS PREPARED BY HIM OUT OF PAST SAVINGS. THE TOTAL GIFT CLAIMED TO HAVE BEEN MADE BY HIM DURING THE YEAR UNDER CONSIDE RATION IS RS.75 000/- (I.E. PAGE - 9 LAKHANI LABHUBHAI DHARMAS HIBHAI & ORS VS. ITO SURAT -9- RS.40 000/- TO THE ASSESSEE AND RS.35 000/- TO THE SMT.LEELABEN WIFE OF THE ASSESSEE). AGAINST SUCH GIFT OF RS.75 000/- THERE IS NO SPECIFIC WITHDRAWAL FROM HIS BANK ACCOUNT. IN VIEW OF THE ABOVE WE HO LD THAT EVEN IN RESPECT OF SHRI NARESH JIVRAJ DHAMELIYA THE ASSESSEE HAS NOT ABLE TO DISCHARGE THE ONUS OF PROVING THE CREDIT WORTHINESS AS WELL AS GENUINE NESS OF THE TRANSACTION. THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED UPON SE VERAL DECISIONS IN SUPPORT OF HIS CLAIM. HOWEVER WE FIND THAT THE FACTS IN ALL THESE CASES ARE QUITE DIFFERENT THAN THE FACTS IN THE CASE UNDER APPEAL BEFORE US. 9. THE FIRST CASE RELIED UPON BY THE LEARNED COUNSE L IS THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ORISSA CORPORATIO N PVT. LTD.(SUPRA). HOWEVER WE FIND THAT IN THE ABOVE MENTIONED CASE A LL THE CREDITORS WERE ASSESSED TO INCOME-TAX AND THEIR PERMANENT ACCOUNT NUMBERS WERE SUPPLIED TO THE AO. IN THE CASE UNDER APPEAL BEFORE US ONLY O NE DONOR IS ASSESSED TO TAX AND ALL OTHER DONORS ARE NOT ASSESSED TO TAX. THER EFORE THE ABOVE DECISION WILL HAVE THE APPLICATION ONLY IN THE CASE OF GIFT FROM DONOR VIZ. NARESH JIVRAJ DHAMELIYA AND NOT IN RESPECT OF ANY OTHER DONORS. 10. NEXT CASE RELIED UPON BY THE LEARNED COUNSEL IS THAT OF JURISDICTIONAL HIGH COURT IN THE CASE OF MULIDHAR LAHORIMAL VS. CI T (SUPRA). FACTS OF THE CASE BEFORE THE HONBLE HIGH COURT WAS THAT THE ASS ESSEE AN INDIVIDUAL FILED A RETURN OF INCOME ACCOMPANIED BY A COPY OF HIS CAPIT AL ACCOUNT IN THE PARTNERSHIP FIRM WHERE HE WAS A PARTNER. THE CAPITA L ACCOUNT CONTAINED A CREDIT ENTRY SHOWING A SUM OF RS.50 000 AS GIFT RECEIVED. THE DONOR HAD FILED A RETURN OF GIFT IN RESPECT OF THE GIFT OF RS.50 000 AND THE ASSESSMENT CAME TO BE COMPLETED UNDER SECTION 15(3) OF THE GIFT-TAX ACT 1958. ASSESSMENT WAS MADE ACCEPTING THE GIFT BUT NOTICE WAS SUBSEQUENTLY ISSU ED UNDER SECTION 148 ON THE GROUND THAT THE GIFT WAS NOT GENUINE AND THE AMOUNT OF RS.50 000 WAS ASSESSABLE UNDER SECTION 68. THE TRIBUNAL FOUND THA T THE GIFT WAS GIVEN BY WAY OF BANK DRAFT ; THE DONOR APPEARED BEFORE THE ASSES SING OFFICER AND CONFIRMED PAGE - 10 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -10- THE FACT OF HAVING MADE THE GIFT. HE PRODUCED EVIDE NCE IN SUPPORT OF THE SOURCE FROM WHICH THE FUNDS FOR MAKING THE GIFT WERE AVAIL ABLE WITH HIM. THE TRIBUNAL HOWEVER HELD THAT THE MOTIVATION FOR MAKIN G THE GIFT WAS NOT ESTABLISHED. IT UPHELD THE ADDITION. ON A REFERENCE : HELD THAT THE TRIBUNAL FAILED TO NOTE THE FACT THAT THE IDENTITY OF THE DONOR WAS ESTABLISHED THE DONOR HAVING APPEARED IN PERSON BEFORE THE ASSESSING OFFICER TH E GENUINENESS OF THE TRANSACTION WAS ESTABLISHED NOT ONLY BY THE RECEIP T OF THE BANK DRAFT BUT ALSO BY THE FACT OF THE TRANSACTION HAVING BORNE GIFT TA X ONCE THE ASSESSMENT WAS FRAMED. THE PRIMARY ONUS WHICH RESTED WITH THE ASSE SSEE THUS STOOD DISCHARGED. THEREAFTER IF THE REVENUE WAS NOT SATI SFIED WITH THE SOURCE OF THE FUNDS IN THE HANDS OF THE DONOR IT WAS UP TO THE R EVENUE TO TAKE APPROPRIATE ACTION. THE TRIBUNAL CONSIDERED THE MOTIVATION FOR MAKING THE GIFT WHICH WAS NOT RELEVANT. THE ADDITION OF RS.50 000 WAS NOT JUS TIFIED. 11. HOWEVER WE FIND THAT IN THE ABOVE CASE THE DO NOR HAD FILED A RETURN OF GIFT AND THE ASSESSMENT OF WHICH WAS COMPLETED UNDE R SECTION 15(3) OF THE GIFT TAX ACT 1958. IN THE ABOVE CASE THE ASSESSEE HAD RECEIVED ONLY ONE GIFT FROM ONE DONOR THAT TOO WAS ACCEPTED IN THE ORIGINAL ASS ESSMENT AND THEREAFTER THE CASE WAS REOPENED SUBSEQUENTLY UNDER SECTION 148. IN THE CASE UNDER APPEAL BEFORE US THE ASSESSEE HAD RECEIVED GIFTS FROM SEV ERAL PERSONS AND APART FROM ASSESSEE HIS FAMILY MEMBERS I.E. WIFE SON AS WELL AS DAUGHTER RECEIVED THE GIFTS FROM LARGE NUMBER OF PERSONS. THEREFORE THE ABOVE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WOULD NOT BE APPL ICABLE TO THE CASE OF THE ASSESSEE. 12. NEXT DECISION RELIED UPON BY THE LEARNED COUNSE L IS THE DECISION OF THIRD MEMBER OF ITAT AGRA BENCH IN THE CASE OF AVNISH KU MAR SINGH VS. ITO WHEREIN THE ITAT HELD AS UNDER: THE FOLLOWING FACTS ARE NOT IN DISPUTE: (A) THE ID ENTITY OF THE DONOR IS NOT IN DOUBT: (B) GIFT IS BY A DECLARATION DEED: (C ) DONOR HAS GIVEN AN PAGE - 11 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -11- AFFIDAVIT AFFIRMING THE MAKING OF THE GIFT; (D) THE RE IS A CONFIRMATION THROUGH POST OF GIFT PER DEMAND DRAFT; (E) AFFIRMAT ION OF THE ASSESSEE IN EXAMINATION ON OATH RECORDED BY AO; (F) AFFIRMATION OF THE DONOR IN EXAMINATION ON OATH RECORDED: (G) DIRECT REPLY OF T HE DONOR TO THE AO CONFIRMING THE GIFT; (H) DONOR IS STATED TO BE A FR IEND OF ASSESSEES FATHER; (I) DONOR WAS DOING SOME FINANCE BUSINESS; AND (J) SOURCE OF THE GIFT IS THE RECEIPT THROUGH A CHEQUE OF RS.2 46 000 RECEIVED BY THE DONOR FROM BT AND A CASH AMOUNT OF RS.3 500. ALL THESE F ACTS ESTABLISH THE FACT THAT A GIFT WAS RECEIVED BY THE ASSESSEE AND T HE SOURCES THEREOF ARE SATISFACTORILY EXPLAINABLE AND PROVED PUTTING ITS G ENUINENESS BEYOND DOUBT. FROM THE ABOVE IT IS EVIDENT THAT THE SOURCE OF TH E GIFT WAS ESTABLISHED BEYOND DOUBT BECAUSE THE DONOR HAD RECEIVED RS.2 46 000/- BY CHEQUE FROM BALAJI TRADING CORPORATION WHICH AMOUNT WAS DEPOSITED EARL IER. THE TOTAL GIFT MADE BY THE DONOR WAS RS.2 50 000/- AND FOR MAKING THE A BOVE GIFT THE CASH DEPOSITS IN THE DONORS BANK ACCOUNT IS ONLY RS.3 500/-. AS WE HAVE MENTIONED EARLIER IN THE ASSESSEES CASE NONE OF THE DONORS HAVE GIV EN GIFT BY WITHDRAWING THE MONEY FROM THEIR BANK ACCOUNT. 13. NEXT DECISION RELIED UPON BY THE LEARNED COUNSE L FOR THE ASSESSEE IS IN THE CASE OF SANJAY KUMAR GOEL (SUPRA) WHEREIN THE A O HAD MADE ADDITION OF RS.11 LAKHS ON THE GROUNDS OF GIFTS BEING UNEXPLAIN ED WHICH WAS DELETED BY THE CIT(A). ON APPEAL THE ITAT UPHELD THE ORDER O F THE CIT(A) WITH THE FOLLOWING FINDINGS: FURTHER THE ASSESSEE BY HIS LETTER DATED 28-3-200 2 HAD CLEARLY MENTIONED THAT ENQUIRIES COULD BE MADE BY DEPUTING ANY PERSON OF THE DEPARTMENT FROM THE VARIOUS DONORS. APART FROM THE ABOVE THE DONOR HAD FILED AFFIDAVITS DULY NOTARIZED WHEREIN THEY H AD EXPLAINED THAT THEY WERE MAKING THE GIFTS OUT OF LOVE AND AFFECTION WH ICH THEY HAD TOWARDS THE ASSESSEE. THEY HAD ALSO EXPLAINED THEIR SOURCE OF FUNDS IN THEIR AFFIDAVITS. THE ASSESSING OFFICER HAD CONVENIENTLY IGNORED THE SAME. WITHOUT EXAMINING THE DONORS IT WAS NOT POSSIBLE T O COME A CONCLUSION AS TO WHY THE DRAFTS WERE PURCHASED ON THE SAME DAT ES OR AS TO WHY IN THE ABSENCE OF ANY OCCASION OR RELATIONSHIP WITH TH E DONEE GIFTS WERE MADE BY THE DONORS. IN OTHER WORDS THE CONCLUSION DRAWN BY THE AO PAGE - 12 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -12- WAS MERE SURMISE AND THE SAME COULD NOT BE SUSTAINE D IN THE ABSENCE OF EXAMINATION OF THE DONORS/CREDITORS IN QUESTION. WHERE THE DONORS COULD BE EXAMINED BY THE AO ANY I NFERENCE DRAWN BY THE AO WITHOUT EXAMINING THE DONORS WOULD BE ONLY A SURMISE. THEREFORE THE COMMISSIONER(APPEALS) WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER. HENCE THE APPEAL WAS TO BE DISMISSED. 14. IN THE ABOVE CASE THE SOURCE OF FUND WAS SATIS FACTORY EXPLAINED BY THE ASSESSEE AND THE AO HAS NOT DOUBTED THE CREDIT-WORT HINESS OF THE DONOR. IT IS NOT THE CASE IN THE PRESENT CASE OF THE ASSESSEE. THE REVENUE HAS DOUBTED THE CREDIT-WORTHINESS OF THE DONORS ALSO. IT HAS BEEN MENTIONED EARLIER THAT EXCEPT ONE DONOR VIZ. SHRI NARESH JIVRAJBHAI DHAMELIYA (N JD) WHO IS SALARIED EMPLOYEE IN BSNL NO OTHER DONOR IS ASSESSED TO INCO ME TAX. IN THE ABOVE CASE THE DONORS WERE NOT EXAMINED BY THE AO WHILE IN THE CASE UNDER APPEAL BEFORE US EIGHT DONORS OUT OF TWELVE WERE EXAMINED BY THE AO DURING THE REMAND PROCEEDINGS AND THE CIT(A)HAS CONFIRMED THE ADDITION AFTER CONSIDERING THEIR STATEMENT IN THE REMAND REPORT. 15. IN THE CASE OF A. RAJENDRAN & ORS. VS. ACIT (SU PRA) HONBLE MADRAS HIGH COURT HELD AS UNDER: ..THE BURDEN IS ON THE ASSESSEE TO SHOW THAT THE R ECEIPT IS NOT OF AN INCOME NATURE BY GIVING AN EXPLANATION. THE INCOME- TAX OFFICER IS NOT EXPECTED TO PUT BLINKERS AND ACCEPT IT AS IT IS ; I T IS OPEN TO HIM TO PROBE FURTHER AND FIND OUT WHETHER THE APPARENT IS REAL O R NOT AND TAKE A DECISION ON SUCH PROBING IN THE LIGHT OF HUMAN PROB ABILITIES. HOWEVER HE SHOULD NOT ACT UNREASONABLY. THE DONOR WAS WORTH ABOUT RS.20 CRORES AND DURING THE RELEVANT TIME HE HAD BROUGHT ABOUT US$ 61 60 000 INTO INDIA THROUGH PROPER CHANNELS. THE D ONOR HAD STATED THAT IN GRATITUDE FOR THE HELP RENDERED BY ONE OF T HE ASSESSEES TO HIS FATHER WHICH ENABLED HIM TO COME UP TO SUCH AN EXAL TED POSITION HE HAD MADE THE GIFTS. ALL THE GIFTS HAD COME THROUGH PROP ER BANKING CHANNELS. THE DONOR APPEARED ON SUMMONS BY THE INCOME-TAX DEP ARTMENT AND GAVE ALL THE DETAILS. THE SENIOR VICE PRESIDENT I N HIS CONCURRING ORDER WITH THE AM HAD STATED THAT AT LEAST BY THAT TIME THE DONOR HAD PAGE - 13 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -13- PRODUCED ALL THE MATERIALS IN PROOF OF HIS CLAIM. THEREFORE IT IS CLEAR THAT THE ASSESSEES HAVE ESTABLISHED THE IDENTITY OF THE DONOR NAMELY THE SOURCE THE SOLVENCY OF THE DONOR AND HIS LOVE AND GRATITUDE FOR THE FAMILY OF THE ASSESSEES WHICH MADE HIM TO MAKE THE GIFT. THERE IS NOTHING ON RECORD TO SHOW THAT THE GIFTS RELIEVED B Y THE ASSESSEES WERE SENT BY ANY PERSON OTHER THAN THE DONOR IN HIS OWN NAME. SIMPLY BECAUSE THE DONOR WRITES LETTERS IN HIS ALIAS NAME AND CANNOT MEAN THAT THERE IS A DISPUTE REGARDING THE IDENTITY OF THE DO NOR ESPECIALLY WHEN THE DONOR APPEARED PURSUANT TO THE NOTICE ISSUED BY THE IT AUTHORITIES AND AFFIRMED HIS GIFTS. THE DONOR IS SHOWN TO BE A N INCOME-TAX ASSESSEE NOT ONLY IN THE UNITED KINGDOM BUT ALSO IN INDIA. . . FROM THE ABOVE IT IS EVIDENT THAT THE FACTS IN THE CASE OF THE ASSESSEE ARE ALTOGETHER DIFFERENT THAN THE FACTS IN THE ABOVE ME NTIONED CASE. IN THE ABOVE CASE THE DONOR WAS ASSESSED TO TAX NOT ONLY IN UK BUT ALSO IN INDIA AND HIS WORTH WAS ABOUT RS.20 CORES. DURING THE RELEVANT T IME HE HAD BROUGHT ABOUT US $ 61 60 000 INTO INDIA THROUGH PROPER CHANNEL. THEREFORE THE RATIO OF THE ABOVE DECISION CANNOT BE APPLIED TO THE CASE OF THE ASSESSEE. 16. ANOTHER CASE RELIED ON BY THE LEARNED COUNSEL I S OF ITAT AMRISTAR BENCHS DECISION IN THE CASE OF ITO VS. M.S.ADVANCE P. LTD. 93 TTJ (ASR) 778 WHEREIN THE ISSUE BEFORE THE ITAT WAS RELATING TO THE LOANS TAKEN BY THE ASSESSEE AND NOT OF GIFT. THE ITAT ACCEPTED THE CR EDIT BECAUSE THE ASSESSEE HAS PRODUCED THE EVIDENCE THAT THE CREDITOR HAS SOLD AG RICULTURAL LAND FOR THE AMOUNT WHICH WAS MORE THAN THE LOAN GIVEN BY THEM. ONE CREDITOR WHO HAS GIVEN THE LOAN OF RS.97 000/- HAS SOLD AGRICULTURE LAND WORTH RS.1 50 000/-. THE OTHER CREDITOR HAS SOLD THE AGRICULTURE LAND WO RTH RS.3 00 000/-. THE PHOTO COPY OF THE SALE DEED WAS PRODUCED BEFORE THE ITAT. ON THE ABOVE FACTS THE ITAT ACCEPTED THE CREDIT AND DELETED THE ADDITION. THUS THE FACTS OF THE ABOVE CASE ARE CERTAINLY DIFFERENT THAN THE ASSESSEES CA SE. 17. IN THE CASE OF O.M. SHAHUL HAMEED (SUPRA) THE CHENNAI BENCH OF THE ITAT HELD AS UNDER: PAGE - 14 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -14- 19. CONSIDERING THE PRESENT CASE THROUGH THE PRISM OF AFORESAID WE FIND THAT FOR THE SUM OF RS. 2 18 000 RECEIVED FROM SHRI S. AHMED IBRAHIM THE ASSESSEE HAS DISCHARGED HIS ONUS. AS S HRI S. AHMED IBRAHIM WORKS ABROAD AND THE SAID AMOUNT IS SHOWN A S WITHDRAWAL IN HIS BANK STATEMENT AND HE HAS GIVEN A LETTER TO THE EFFECT THAT HE HAS GIVEN THE SAID SUM TO THE ASSESSEE. NOW THE BURDEN IS SHIFTED TO THE REVENUE TO PROVE THAT THE SAME IS NOT TRUE AND THAT THE AMOUNT ACTUALLY BELONGED TO THE ASSESSEE. THIS IN OUR OPINION HAS NOT BEEN DONE. AS SUCH GENUINENESS OF THIS CREDIT IS ACCEPTED. AS RE GARDS THE OTHER CREDITS IT IS SEEN THAT NEITHER THE SAID PERSONS APPEARED B EFORE THE ASSESSING OFFICER NOR ARE THEY INCOME-TAX ASSESSEES NOR ANY S OURCE OF THEIR INCOME HAS BEEN SHOWN. AS SUCH ADDITION ON THIS AC COUNT IS SUSTAINED. FROM THE ABOVE IT IS EVIDENT THAT OUT OF THE ADDIT ION OF RS.3 50 000/- THE ITAT HAS DELETED RS.2 18 000/- WHICH WAS THE AMOUNT RECE IVED FROM THE ASSESSEES BROTHER-IN-LAW AND THE SAID AMOUNT WAS SHOWN AS WIT HDRAWN FROM HIS BANK ACCOUNT. IN THE CASE UNDER APPEAL BEFORE US THE A SSESSEE HAS NOT SHOWN ANY AMOUNT OF GIFT HAVING BEEN WITHDRAWN BY ANY DONOR F ROM THEIR BANK ACCOUNT. 18. ON THE FACTS OF THE ASSESSEES CASE DECISION O F THE HONBLE APEX COURT RELIED UPON BY THE REVENUE IN THE CASE OF SUMATI DA YAL (SUPRA) WOULD BE SQUARELY APPLICABLE. IN THAT CASE THE ASSESSEE CL AMED TO HAVE RECEIVED A TOTAL AMOUNT OF RS.3 11 831/- IN THE ASSESSMENT YEAR 1971 -72 BYWAY OF RACE WINNING IN JACKPOT AND TREBLE EVENTS IN RACES AT TURF CLUBS IN BANGALORE MADRAS AND HYDERABAD. SHE ALSO CLAIMED TO HAVE RECEIVED A SUM OF RS.93 500/- FROM RACE WINNINGS IN TWO JACKPOTS AT BANGALORE AND MADRAS DU RING THE ASSESSMENT YEAR 1972-73. THE INCOME TAX OFFICER TREATED THIS AMOU NT AS INCOME FROM OTHER SOURCES AND THE ASSESSED THE SAME. THE SAME WAS S USTAINED BY THE APPELLATE ASSTT.COMMISSIONER. THE ASSESSEE REFERRED THE MATT ER TO THE SETTLEMENT COMMISSION. THE SETTLEMENT COMMISSION BY WAY OF MA JORITY VIEW HELD THAT THE EXPLANATION OF THE ASSESSEE WAS NOT GENUINE. T HE CHAIRMAN OF THE SETTLEMENT COMMISSION IN HIS DISSENTING OPINION HAS DECIDED IN FAVOUR OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS PRODUC ED THE EVIDENCE IN SUPPORT OF CREDITS IN THE FORM OF CERTIFICATES FROM RACE CL UBS GIVING PARTICULARS OF PAGE - 15 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -15- CROSSED CHEQUES FOR THE PAYMENT OF AMOUNTS FOR WINN ING OF JACKPOTS. AGAINST THE MAJORITY VIEW OF THE SETTLEMENT COMMISSION THE ASSESSEE FILED APPEAL BEFORE THE HONBLE APEX COURT WHICH SUSTAINED THE M AJORITY VIEW OF THE SETTLEMENT COMMISSION. THEIR LORDSHIP OF THE APEX COURT HELD AS UNDER AT PAGE NO.808 OF 214 ITR. THIS IN OUR OPINION IS A SUPERFICIAL APPROACH TO THE PROBLEM. THE MATTER HAS TO BE CONSIDERED IN THE LIGHT OF HUMAN P ROBABILITIES. THE CHAIR MAN OF THE SETTLEMENT COMMISSION HAS EMPHASIS ED THAT THE APPELLANT DID POSSESS THE WINNING TICKET WHICH WAS SURRENDERED TO THE RACE CLUB AND IN RETURN A CROSSED CHEQUE WAS OBTAIN ED. IT IS IN OUR VIEW A NEUTRAL CIRCUMSTANCE BECAUSE IF THE APPELL ANT HAD PURCHASED THE WINNING TICKET AFTER THE EVENT SHE WOULD BE HA VING THE WINNING TICKET WITH HER WHICH SHE COULD SURRENDER TO THE RACE CLU B. THE OBSERVATION BY THE CHAIRMAN OF THE SETTLEMENT COMMISSION THAT 'FRAUDULENT SALE OF WINNING TICKETS IS NOT AN USUAL PRACTICE BUT IS VE RY MUCH OF AN UNUSUAL PRACTICE' IGNORES THE PREVALENT MALPRACTICE THAT W AS NOTICED BY THE DIRECT TAXES ENQUIRY COMMITTEE AND THE RECOMMENDAT IONS MADE BY THE SAID COMMITTEE WHICH LED TO THE AMENDMENT OF THE A CT BY THE FINANCE ACT OF 1972 WHEREBY THE EXEMPTION FROM TAX THAT W AS AVAILABLE IN RESPECT OF WINNINGS FROM LOTTERIES CROSSWORD PUZZ LES RACES ETC. WAS WITHDRAWN. SIMILARLY THE OBSERVATION BY THE CHAIRM AN THAT IF IT IS ALLEGED THAT THESE TICKETS WERE OBTAINED THROUGH FR AUDULENT MEANS IT IS UPON THE ALLEGER TO PROVE THAT IT IS SO IGNORES TH E REALITY. THE TRANSACTION ABOUT PURCHASE OF WINNING TICKET TAKES PLACE IN SECRET AND DIRECT EVIDENCE ABOUT SUCH PURCHASE WOULD BE RARELY AVAILABLE. AN INFERENCE ABOUT SUCH A PURCHASE HAS TO BE DRAWN ON THE BASIS OF THE CIRCUMSTANCES AVAILABLE ON THE RECORD. HAVING REGAR D TO THE CONDUCT OF THE APPELLANT AS DISCLOSED IN HER SWORN STATEMENT A S WELL AS OTHER MATERIAL ON THE RECORD AN INFERENCE COULD REASONAB LY BE DRAWN THAT THE WINNING TICKETS WERE PURCHASED BY THE APPELLANT AF TER THE EVENT. WE ARE THEREFORE UNABLE TO AGREE WITH THE VIEW OF THE CHA IRMAN IN HIS DISSENTING OPINION. IN OUR OPINION THE MAJORITY O PINION AFTER CONSIDERING THE SURROUNDING CIRCUMSTANCES AND APPLY ING THE TEST OF HUMAN PROBABILITIES HAS RIGHTLY CONCLUDED THAT THE APPELLANT'S CLAIM ABOUT THE AMOUNT BEING HER WINNINGS FROM RACES IS N OT GENUINE . (EMPHASIS SUPPLIED) IT CANNOT BE SAID THAT THE EXPL ANATION OFFERED BY THE APPELLANT IN RESPECT OF THE SAID AMOUNTS HAS BEEN R EJECTED UNREASONABLY AND THAT THE FINDING THAT THE SAID AMO UNTS ARE INCOME OF THE APPELLANT FROM OTHER SOURCES IS NOT BASED ON EV IDENCE. PAGE - 16 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -16- IN THE CASE OF ASSESSEE ALSO THE ASSESSEE AND HIS FAMILY MEMBERS CLAIMED TO HAVE RECEIVED GIFTS YEAR AFTER YEAR ON SEVENTYONE O CCASIONS AND SUM TOTAL OF THE GIFTS WAS AMOUNTING TO RS.34 74 571/-. THE ASSESSE E HAS CLAIMED TO HAVE RECEIVED THE GIFTS FROM VARIOUS RELATIVES ON NUMBER OF OCCASIONS BUT DID NOT RECIPROCATE A SINGLE GIFT TO ANY OF THE DONORS. EX CEPT ONE NO OTHER DONOR IS ASSESSED TO TAX. THE FINANCIAL CONDITIONS OF THE D ONORS WERE SUCH THAT MOST OF THEM WERE OWNING BULLOCK CART WHILE THE ASSESSEE WA S OWNING MOTOR CAR. THE PERSONS OWNING BULLOCK CART IS CLAIMED TO HAVE GIVE N THE GIFTS TO THE PERSONS OWNING MOTOR CAR. IT IS AGAINST ALL HUMAN PROBABIL ITIES THAT THE RELATIVES WHO ARE MUCH POORER THAN THE ASSESSEE ARE GIVING GIFTS TO THE ASSESSEE AND HIS FAMILY MEMBERS NUMBER OF TIMES WITHOUT ANY RECIPROCAL GIFT S FROM THE ASSESSEES SIDE. IN VIEW OF THE ABOVE IN OUR OPINION THE DECISION OF HONBLE APEX COURT IN THE CASE OF SUMATI DAYAL (SUPRA) WOULD BE SQUARELY APPL ICABLE. RESPECTFULLY FOLLOWING THE SAME WE HOLD THAT THE ASSESSEE WAS U NABLE TO PROVE EITHER CREDIT- WORTHINESS OF THE DONORS OR THE GENUINENESS OF THE TRANSACTION. WE THEREFORE UPHOLD THE ORDER OF THE CIT(A) AND REJECT VARIOUS G ROUNDS RAISED BY THE ASSESSEE AGAINST THE ADDITION OF RS.7 65 000/-. ITA NO.2362/AHD/2005 AY : 2002-2003 - (LAKHANI IL ABEN LABHUBHAI) 19. THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS THEY ARE ALL AGAINST THE ADDITION OF RS.7 10 500/- MADE BY THE AO FOR UNEXPL AINED GIFT WHICH WAS SUSTAINED BY THE CIT(A). AT PAGE NO.4 OF THE ASSES SMENT ORDER THE AO HAS GIVEN THE DETAILS OF THE GIFTS RECEIVED BY THE ASSE SSEE DURING THE YEAR UNDER CONSIDERATION. THE SAME IS REPRODUCED BELOW: PAGE - 17 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -17- 20. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED BEFORE US. WHILE CONSIDERING THE CASE OF SHRI LAKHANI LAB HUBHAI DHARMASHIBHAI (LLD FOR SHORT) HUSBAND OF THE ASSESSEE WE HAVE CONSIDERED SIMILAR ISSUE. OUT OF THE ABOVE DONORS TO THE ASSESSEE EXCEPT TWO NAMELY DINESHBHAI PURSOTAMBHAI SAWANI AND SMT.VARSHABEN D. DHAMELIYA OUR FINDING IN THE CASE OF LLD IN RESPECT OF ALL THESE DONORS WOULD BE APPLICABLE IN THIS CASE ALSO. FIRST WE SHALL DISCUSS THE ISSUE RELATING TO THE NEW DONORS DINESHBHAI PURSOTTAMBHAI SAWANI (DPS) AND SMT.VARSHABEN D. D HAMELIYA (VDD). AS PER THE REMAND REPORT OF THE AO WHICH IS PLACED AT PAGE NO.16 OF THE ASSESSEES PAPER BOOK WE FIND THAT DPS IS NOT AS SESSED TO INCOME TAX. HIS ONLY SOURCE OF INCOME IS AGRICULTURE INCOME. HIS T OTAL LAND HOLDING IS ONLY 2.51 ACRES WHICH IS ALSO NOT IRRIGATED. AS PER TH E AO HIS INCOME FROM AGRICULTURAL WOULD BE ONLY RS.12 000/- PER ANNUM. THE ONLY INSTRUMENT HE OWNS FOR THE PURPOSE OF HIS AGRICULTURE ACTIVITY IS THE BULLOCK CART. THESE FACTS STATED IN THE REMAND REPORT HAVE NOT BEEN CONTROVER TED BEFORE US. CONSIDERING THESE IN OUR OPINION THE CREDIT WORTHINESS OF DP S FOR MAKING GIFT OF RS.91 500/- (RS.48 000/- ON 22-3-2002 AND RS.43 500 /- ON 26-3-2002) IS NOT PROVED. SR.NO. NAME OF DONOR AMOUNT (RS.) 1. SHRI SAVJIBHAI MAGANBHAI LAKHANI 45 000 2. SHRI DHARMASHIBHAI MAVJIBHAI LAKHANI 45 000 3. SHRI GHANSHYAMBHAI SAVJIBHIA LAKHANI 40 000 4. SMT.DIWALIBEN D. LAKHANI 45 000 5. SHRI JERAJBHAI SAVJIBHAI LAKHANI 48 000 6. SHRI NARESH JIVRAJ DHAMELIYA 35 000 7. SHRI JIVRAJBHAI GOPALBHAI DHAMELIYA 40 000 8. SHRI HIRABHAI JIVRAJBHAI DHAMELIYA 45 000 8. SHRI PURSHOTTAMBHAI DAYALBHAI SAWANI 47 500 9. SHRI DINESHBHAI PURSOTTAMBHAI SAWANI 48 500 10. SHRI PURSHOTTAMBHAI DAYALBHAI SAWANI 48 000 11. SHRI ASHWINBHAI LALJIBHAI SAWANI 90 000 12. SHRI DEVJIBHAI M. LAKHANI 46 000 13. SHRI DINESHBHAI P. SAVANI 43 500 14. SMT.VARSHABEN D. DHAMELIYA 44 000 TOTAL 7 10 500/- PAGE - 18 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -18- 21. IN THE CASE VDD SHE IS CO-OWNER OF 10 BIGHAS OF AGRICULTURE LAND. ANOTHER CO-OWNER IS HER HUSBAND. HER SHARE OF AGRI CULTURE LAND IS ONLY 5 BIGHAS WHICH IS LESS THAN ONE HECTARE. SHE HAS NO OTHER SOURCE OF INCOME AND NOT ASSESSED TO TAX. IN VIEW OF THE ABOVE WE AGREE WITH THE LOWER AUTHORITIES THAT THE CREDIT WORTHINESS OF SMT.VARSHABEN IS NOT PROVED. THE ISSUE OF GENUINENESS OF GIFT IS DISCUSSED AT LENGTH IN THE C ASE OF LLD WHICH WOULD BE EQUALLY APPLICABLE IN THE CASE OF THESE TWO DONORS. THE CASES OF ALL OTHER DONORS HAVE BEEN DISCUSSED AT LENGTH IN CASE OF LAKHANI LA BHUBHAI DHARMASHIBHAI AND FOR THE DETAILED DISCUSSION THEREIN WE HOLD TH AT THE ASSESSEE HAS NOT BEEN ABLE TO PROVE EITHER CREDIT WORTHINESS OF DONORS OR GENUINENESS OF TRANSACTION. IN VIEW OF THE ABOVE UPHOLD THE ORDER OF THE CIT(A ) AND DISMISS THE ASSESSEES APPEAL. ITA NO.2569/AHD/2006 - A.Y.2003-2004: SHRI LABHUBH AI D. LAKHANI 22. THOUGH THE ASSESSEE HAS RAISED SEVERAL GROUNDS HOWEVER THEY ARE ALL AGAINST THE ADDITION OF RS.4 68 720/- MADE BY THE A O ON ACCOUNT OF UNEXPLAINED GIFTS WHICH IS SUSTAINED BY THE CIT(A). DURING THE ACCOUNTING YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDER ATION THE ASSESSEE CLAIMED TO HAVE RECEIVED GIFT OF RS.4 68 720/- FROM THE FOL LOWING PERSONS: NAME DATE OF GIFT AMOUNT SHITAL P. GHELANI 28.11.2002 23 720 ASHVINBHAI L. SAVANI 13.03.2003 1 25 000 DEVRAJBHAI JIVRAJBHAI 24.03.2003 1 00 000 DEVRAJBHAI JIVRAJBHAI 25.03.2003 50 000 MANUBHAI CHHAGANBHAI SAVANI 26.03.2003 45 000 CHHAGANBHAI D. SAVANI 26.03.2003 45 000 ASHOKBHAI C. SAVANI 26.03.2003 35 000 NARSHIBHAI HARJIBHAI LAKHANI 26.03.2003 45 000 TOTAL 4 68 720/- 23. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATE RIAL PLACED BEFORE US. OUR FINDING WITH REGARD TO THE EACH DONOR IS AS UND ER: PAGE - 19 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -19- 24. SHITAL P. GHELANI IS THE DAUGHTER OF ASSESSEE S ETTLED IN USA. SHE HAS GIVEN THE GIFT OF US $ 500 EQUIVALENT TO INDIAN RUP EES OF 23 720/-. HER HUSBAND IS EMPLOYED WITH JP MORGANCHASE. CERTIFICA TE FROM THE EMPLOYER ABOUT THE EMPLOYMENT OF SHRI PIYUSH GHELANI HUSBAN D OF THE DONOR IS ANNEXED AT PAPER BOOK PAGE NO.17. AS PER THE CERTIFICATE SHRI PIYUSH GHELANI IS EMPLOYED WITH JP MORGANCHASE AS VICE-PRESIDENT AND HIS BASIC SALARY IS $108 150.00 PER ANNUM. CONSIDERING THE SALARY OF D ONORS HUSBAND BEING MORE THAN $ 100 000 PER ANNUM THE CREDIT WORTHINES S OF THE DONOR FOR A SMALL GIFT OF US $ 500 CANNOT BE DOUBTED. THE ASSESSEE H AS ALSO PRODUCED THE EVIDENCE THAT GIFT CHEQUE OF US $ 500 WAS ISSUED BY A USA BANK AND THE SAME WAS CREDITED IN ASSESSEES BANK ACCOUNT. THUS IN THIS CASE ASSESSEE WAS ABLE TO PROVE IDENTITY OF DONOR CREDIT WORTHINESS OF DONOR AND GENUINENESS OF TRANSACTION. 25. SHRI ASHVIN L. SAVANI HAS ALSO GIVEN THE GIFT T O THE ASSESSEE IN THE IMMEDIATELY PRECEDING YEAR AND WHILE DECIDING THE A SSESSEES APPEAL FOR A.Y.2002-2003 WE HAVE DISCUSSED THE ISSUE AT LENGT H AND FOR THE DETAILED DISCUSSION THEREIN WE HOLD THAT THE CREDIT WORTHIN ESS OF SHRI ASHVIN L. SAVANI IS NOT PROVED. 26. THE FACTS RELATING TO OTHER FIVE DONORS ARE MOR E OR LESS SIMILAR. THE ONLY EXPLANATION GIVEN WITH REGARD TO THE REMAINING FIVE DONORS BY THE ASSESSEE BEFORE AO READS AS UNDER: 3. DEVRAJBHAI JIVRAJBHAI: HE IS PURELY AN AGRICULTURIST. WE HAVE PRODUCED RE LEVANT DETAILS VIDE ON SUBMISSION DATED 18.11.2005. 4. MANUBHAI CHHAGANBHAI SAVANI: HE IS PRURELY AN AGRICULTURIST. WE HAVE PRODUCED R ELEVANT DETAILS VIDE ON SUBMISSION DATED 18.11.2005. PAGE - 20 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -20- 5. CHHAGANBHAI DIYALBHAI: HE IS PURELY AN AGRICULTURIST. WE HAVE PRODUCED RE LEVANT DETAILS VIDE ON SUBMISSION DATED 18.11.2005. 6. ASHOKBHAI CHHAGANBHAI: HE IS PURELY AN AGRICULTURIST. WE HAVE PRODUCED RE LEVANT DETAILS VIDE ON SUBMISSION DATED 18.11.2005. ALL THE ABOVE PERSONS AT (3) TO (6) ABOVE ARE NOT A VAILABLE WHEN CONTACTED. SO IN THE CIRCUMSTANCES WE ARE UNABLE T O PRODUCE THEM NOW BEFORE YOUR HONOUR AT THE APPOINTED DAY AN D DATE. 7. NARESHBHAI H. LAKHANI: HE RESIDES AT VALLABHIPUR AND UNABLE TO COME AT APP OINTED DAY. HE IS PURELY AN AGRICULTURIST AND VERY AGED MAN. R ELEVANT DETAILS WERE PRODUCED ON 18.11.2005. KINDLY ACCEPT THE ABOVE GIFTS AS FULLY EXPLAINED. THE SAME IS REJECTED BY THE AO WITH FOLLOWING FINDI NGS: SHRI DEVRAJBHAI JEVRAJBHAI: THE ASSESSEE HAS NOT PRODUCED HIM IN THIS OFFICE. PERSONAL IDENTITY HAS NOT BEEN ESTABLISHED. THE ASSESSEE HAS SUPPLIED ON LY 7/12 ABSTRACT WHICH HE HAS BEEN SHOWN TO HAVE LAND OF 1.61 HECTOR S (4 ACRES). THE ASSESSEE HAS NOT SUPPLIED ANY DOCUMENT WHICH SHOWS THE EARNING CAPACITY OF THE ABOVE DONOR. SHRI MANUBHAI CHAGANBHAI SAVANI: THE ASSESSEE HAS NOT PRODUCED HIM IN THIS OFFICE. PERSONAL IDENTITY HAS NOT BEEN ESTABLISHED. THE ASSESSEE HAS SUPPLIED ON LY 7/12 ABSTRACT. THE ASSESSEE HAS NOT SUPPLIED ANY DOCUMENT WHICH SHOWS THE EARNING CAPACITY OF THE ABOVE DONOR. SHRI CHHAGANBHAI DIYALBHAI: THE ASSESSEE HAS NOT PRODUCED HIM IN THIS OFFICE. PERSONAL IDENTITY HAS NOT BEEN ESTABLISHED. THE ASSESSEE HAS SUPPLIED ON LY 7/12 ABSTRACT. THE PAGE - 21 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -21- ASSESSEE HAS NOT SUPPLIED ANY DOCUMENT WHICH SHOWS THE EARNING CAPACITY OF THE ABOVE DONOR. SHRI ASHOKBHAI CHHAGANBHAI: THE ASSESSEE HAS NOT PRODUCED HIM IN THIS OFFICE. PERSONAL IDENTITY HAS NOT BEEN ESTABLISHED. THE ASSESSEE HAS SUPPLIED ON LY 7/12 ABSTRACT. THE ASSESSEE HAS NOT SUPPLIED ANY DOCUMENT WHICH SHOWS THE EARNING CAPACITY OF THE ABOVE DONOR. SHRI NARESHBHAI H. LAKHANI: THE ASSESSEE HAS NOT PRODUCED HIM IN THIS OFFICE. PERSONAL IDENTITY HAS NOT BEEN ESTABLISHED. THE ASSESSEE HAS SUPPLIED ON LY 7/12 ABSTRACT. THE ASSESSEE HAS NOT SUPPLIED ANY DOCUMENT WHICH SHOWS THE EARNING CAPACITY OF THE ABOVE DONOR. 27. FROM THE ABOVE IT IS EVIDENT THAT NONE OF THEM ARE ASSESSED TO TAX AND THEIR ONLY SOURCE OF INCOME CLAIMED TO BE IS AGRICU LTURE INCOME. THE ONLY EVIDENCE PRODUCED WITH REGARD TO THEIR AGRICULTURE INCOME IS THE 7/12 EXTRACTS I.E. THE EVIDENCE OF THE LAND HOLDING. NO OTHER EV IDENCE IS PRODUCED. NO OTHER EVIDENCE FOR CARRYING OUT AGRICULTURAL ACTIVITY SA LE BILL FOR SALE OF CROP IS PRODUCED. EVEN WHAT WAS THE AMOUNT OF AGRICULTURAL INCOME OF EACH DONOR IS NOT FURNISHED. THEY WERE NOT PRODUCED BEFORE THE AO DESPITE THE DIRECTION OF THE AO TO PRODUCE THEM. EVEN AT THE TIME OF HEARIN G BEFORE US NO FURTHER DOCUMENTARY EVIDENCES TO ESTABLISH THEIR CREDIT-WOR THINESS WAS FURNISHED. SO FAR GENUINENESS OF GIFT IS CONCERNED FACTS BEING S IMILAR TO AY 2002-2003 OUR FINDING IN AY 2002-2003 WOULD BE SQUARELY APPLICABL E. CONSIDERING THE FACTS OF THE CASE WE AGREE WITH THE FINDINGS OF THE LOWE R AUTHORITIES THAT THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THE CREDIT WORTHINES S OF THE DONORS AS WELL AS GENUINENESS OF TRANSACTION IN RESPECT OF GIFTS FROM VIZ. S/SHRI DEVRAJBHAI JEVRAJBHAI MANUBHAI CHAGANBHAI SAVANI CHHAGANBHAI DIYALBHAI ASHOKBHAI CHHAGANBHAI AND NRESHBHAI H. LAKHANI. THUS CONSID ERING THE TOTALITY OF THE FACTS THE ADDITION MADE BY THE AO IS REDUCED BY RS .23 720/- AND THE REMAINING ADDITION OF RS.4 45 000/- (RS.4 68 720 MINUS RS.23 720) IS SUSTAINED. PAGE - 22 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -22- ITA NO.373/AHD/2007 : LAKHANI LILABEN LABHUBHAI 28. SIMILARLY IN THIS APPEAL ALSO THE ASSESSEE HAS RAISED SEVERAL GROUNDS QUA ADDITION IN RESPECT OF UNEXPLAINED GIFTS OF RS.3 03 651/- WHICH WAS CONFIRMED BY THE CIT(A). THE DETAILS OF GIFTS RECEIVED BY TH E ASSESSEE FROM VARIOUS PARTIES ARE AS UNDER: NAME DATE AMOUNT SHITAL P. GHELANI 28.11.2002 23 651 ASHVINBHAI L. SAVANI 17.03.2003 1 60 000 MANUBHAI CHHAGANBHAI SAVANI 26.03.2003 40 000 CHHAGANBHAI D. SAVANI 26.03.2003 45 000 ASHOKBHAI C. SAVANI 26.03.2003 35 000 TOTAL 3 03 651 29. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATE RIAL PLACED BEFORE US. WE HAVE CONSIDERED SIMILAR ISSUE IN THE CASE OF SHR I LABHUBHAI D. LAKHANI HUSBAND OF THE ASSESSEE FOR A.Y.2003-2004 WHEREIN W E HAVE DISCUSSED THE CASE OF EACH AND EVERY DONOR. FOR THE DETAILED DIS CUSSION THEREIN WE DIRECT THE AO TO ACCEPT THE GIFT OF RS.23 651/- RECEIVED FROM SHITAL P. GHELANI AND CONFIRM THE ADDITION IN RESPECT OF GIFTS RECEIVED F ROM REMAINING PERSONS. ACCORDINGLY THE BALANCE ADDITION OF RS.2 80 000/- I S SUSTAINED. ITA NO.2835/AHD/2007 : LAKHANI MEHUL LABHUBHAI 30. IN THIS APPEAL ALSO THE ASSESSEE IS AGGRIEVED B Y THE ADDITION OF RS.1 90 000/- IN RESPECT OF UNEXPLAINED GIFTS AS BO GUS. THE ADDITION WAS CONFIRMED BY THE CIT(A) IN FIRST APPEAL. THE DETAIL S OF GIFTS MADE TO THE ASSESSEE ARE AS UNDER: NAME DATE AMOUNT ASHWIN L. SAVANI 14.03.2003 1 20 000 MANUBHAI CHHAGANBHAI SAVANI 27.03.2003 39 000 ASHOKBHAI CHHAGANBHAI SAVANI 27.03.2003 40 000 PAGE - 23 LAKHANI LABHUBHAI DHARMA SHIBHAI & ORS VS. ITO SURAT -23- 31. WE HAVE HEARD BOTH THE PARTIES AND CONSIDERED M ATERIAL PLACED BEFORE US. WE HAVE CONSIDERED THE ISSUE OF ALL THE ABOVE DONORS IN THE CASE OF LABHUBHAI LAKHANI FOR A.Y.2003-2004. FOR THE DETAI LED DISCUSSION THEREIN WE SUSTAIN THE ADDITION MADE BY THE REVENUE AUTHORITIE S IN RESPECT OF ALL THE ABOVE GIFTS. 32. IN THE RESULT APPEAL NOS. 2569/AHD/2006 AND 37 3/AHD/2007 ARE PARTLY ALLOWED AND THE REMAINING APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 14 TH MAY 2010. SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 14-05-2010 COPY OF THE ORDER FORWARDED TO: 1) : ASSESSEE 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR ITAT. BY ORDER AR ITAT AHMEDABAD PARA NO.1 TO 18 AT PAGES 1 TO 16 OF THE ORDER ARE FIT FOR PUBLICATION SD/- SD/- (T.K.SHARMA) (G.D.AGRAWAL) JM AM