* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 27.04.2010
+ ITA 128/2009
COMMISSIONER OF INCOME TAX ..... Appellant
versus
SURESH KUMAR KAKAR ..... Respondent
Advocates who appeared in this case:-
For the Appellant : Ms Rashmi Chopra For the Respondent : Mr Salil Aggarwal with Mr Ravi Pratap Mall CORAM: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR. JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed
to see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in Digest ?
BADAR DURREZ AHMED, J (ORAL)
1. The revenue is in appeal against the order dated 04.04.2008 passed by
the Income-tax Appellate Tribunal in ITA No.2479/D/07 relating to the
assessment year 2000-01. Two issues were raised before the Income-tax
Appellate Tribunal. One was concerning the validity of the proceedings
under Section 147 of the Income-tax Act, 1961 (hereinafter referred to as
‘the said Act’). The other was on the issue of merits with regard to the
addition of Rs 24,77,000/- made by the Assessing Officer under Section 68
ITA No.128/09 Page 1 of 4
of the said Act. The addition had also been confirmed by the Commissioner
of Income-tax (Appeals).
2. We have heard the counsel for the parties. At the outset, we may state
that we have not gone into the issue of the validity of the proceedings under
Section 147 of the said Act inasmuch as we find that the Tribunal has come
to a correct conclusion on the merits of the matter. On merits, we find that
the points in issue are gifts totalling to Rs 24.77 lakhs made by the mother of
the assessee in favour of the assessee during the financial year 1999-2000.
The Assessing Officer rejected the contention of the assessee that these were
gifts made by the mother and held the same to be unaccounted income of the
assessee and made an addition of Rs 24.77 lakhs under Section 68 of the said
Act. The Commissioner of Income-tax (Appeals) examined the matter and
agreed with the findings of the Assessing Officer with regard to the
genuineness of the gifts. According to the Commissioner of Income-tax
(Appeals), the gifts were not genuine. One of the reasons, and strangely so,
was that gifts are normally given on the eve of some occasion and since
these gifts were not given in relation to any occasion, the same were
doubtful. We fail to understand the logic adopted by the Commissioner of
Income-tax (Appeals). We must keep in mind that this is a case of gifts
made by a mother to a son. Such gifts do not require any occasion and the
mother can make a gift to her son at any time.
3. Insofar as the identity is concerned, that is an admitted position that
the gifts were made by the mother to the son. With regard to the
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creditworthiness, the assessee has been able to discharge the onus cast upon
him by furnishing the bank statement of his mother (donor) as also the
confirmation certificate from the mother confirming the said gifts. Once the
assessee has discharged the primary onus, which was cast upon the assessee,
it was incumbent upon the Assessing Officer to prove on the basis of a
cogent evidence that the transaction was not genuine. There is no such
evidence forthcoming. We find that the conclusions of the Assessing
Officer and the Commissioner of Income-tax (Appeals) with regard to the
genuineness of the transactions are merely conjectural and are based on
surmises and assumptions. Such conjectures and assumptions cannot take
the place of proof, once the assessee has discharged the primary burden
which had been cast upon him.
4. The Tribunal has correctly concluded that the authorities below had
ignored the fact that there was a blood relationship (mother-son) between the
donor and the donee; that the gifts are normally made by parents to children
through love and affection and do not necessarily require any particular
occasion; that the gifts in the present case were all made by cheques and
through banking channels. The Tribunal held that when the identity and the
capacity are proved beyond doubt and the source of the gifts was the mother,
there was no question of making the addition under Section 68 of the said
Act.
ITA No.128/09 Page 3 of 4
5. In the foregoing circumstances, the findings recorded by the Tribunal
do not suffer from any perversity. Consequently, no substantial question of
law arises for our consideration. The appeal is dismissed.
BADAR DURREZ AHMED, J
V.K. JAIN, J
APRIL 27, 2010
dutt
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