JUDGMENT
D.K. Jain, C.J.
1. This appeal, by the assessee, under Section 260A of the IT Act, 1961 (for short, ‘the Act’) is directed against order, dt. 27th Feb., 2006, passed by the Income-tax Appellate Tribunal, Chandigarh Bench ‘A’ (for short, ‘the Tribunal’) in ITA No. 977/Chd/2004, pertaining to the asst. yr. 2001-02.
2. Briefly stated, the background facts, giving rise to the present appeal are as follows :
During the course of assessment proceedings, for the relevant assessment year, the AO noticed that the assessee had received gifts of Rs. 9.5 lakhs from her husband and Rs. 11 lakhs from one Shri Ashwani Kumar Goel, a non-resident. The AO accepted the gift, stated to have been received from the husband. As regards the gift of Rs. 11 lakhs, it was stated by the assessee that the said Shri Ashwani Kumar Goel, a resident of Dubai, is her “Rakhi Bandh Bhai” and he had made the gift to her by means of a cheque dt. 22nd April, 2000 issued from a Non-resident External Account (for short, “NRE account’). Upon scrutiny of bank statement, summoned under Section 133(6) of the Act, the AO discovered that on 1st Jan., 2000, the opening balance in the said NRE account was Rs. 28,654.41; by credit entry of interest, the balance increased to Rs. 29,105.41; there was a credit entry of Rs. 10,98,800 on 20th April, 2000; on 22nd April, 2000, a cheque in the sum of Rs. 11 lakhs was issued from the account in favour of the assessee and in seven months, only one transaction had taken place in the said account. The statement of the assessee was recorded by the AO.
Inter alia, observing that the donor not being related to the assessee, it did not stand to any logic that he would gift an amount of Rs. 11 lakhs to her; the credentials and financial status of the donor remained unproved in the absence of his examination and the nature of transactions in the NRE account showed that it was only an accommodation entry, the AO held that the gift was not genuine. Since the said amount was utilised for purchase of the house, the AO treated the investment of the said amount as unexplained and added it in her total income as income from undisclosed sources.
3. Aggrieved, the assessee preferred appeal to the CIT(A). Inter alia, observing that the donor was a NRI, who had made the gift through account payee cheque and that the AO had not brought any material on record to prove that the gift was not genuine, the CIT(A) came to the conclusion that the identity of the donor as well as his capacity to make the impugned gift not being in doubt, the genuineness of the gift could not be doubted. Accordingly, he deleted the addition.
4. Not being satisfied with the decision of the CIT(A), the Revenue carried the-matter in further appeal to the Tribunal. By the impugned order, the Tribunal has allowed the appeal and remanded the case back to the AO for fresh adjudication in regard to the capacity of the donor. Hence, the present appeal.
5. We have heard Mr. Sanjay Bansal, learned Counsel appearing for the assessee.
6. It is vehemently submitted by the learned Counsel that the Tribunal has misdirected itself in law as well as on facts in remanding the matter back to the AO for fresh adjudication. It is urged that the onus, which lay on the assessee to prove the genuineness of the gift, stood discharged by filing a copy of the certificate of gift; affidavit and passport number of the donor including his complete address and telephone number and NRE account number and source of income of the donor. It is contended that the AO having failed to cross-examine the donor by summoning him, despite the fact that his complete postal address, e-mail address and telephone number had been furnished to the AO and in the absence of any incriminating material on record, the genuineness of the gift could not even be doubted. The stand of the learned Counsel is that at no stage of the assessment proceedings, the assessee was asked to prove the creditworthiness of the donor and therefore, the Tribunal acted illegally by reopening the issue of creditworthiness of the donor. In support of the proposition that the Tribunal cannot be permitted to make out a new case, reliance is placed on the decisions of the Andhra Pradesh, Calcutta and Bombay High Courts in CIT v. G.M. Chennabasappa , Indo-Burma Petroleum Co. Ltd v. CIT and J.B. Greaves v. CIT , respectively. Learned Counsel has also argued that without reversing the finding of the CIT(A) with regard to the identity of the donor as well as his capacity to make the impugned gift, the Tribunal could not remand the matter back to the AO for fresh adjudication on the same question, particularly in the absence of any fresh material. In support, reliance is placed on a decision of the Gujarat High Court in Rajesh Babubhai Damania v. CIT .
7. We are unable to persuade ourselves to agree with learned Counsel for the appellant. True that the Tribunal has observed that the assessee has proved that the donor is not a stranger and the gift was received through account payee cheque, issued from the NRE account. Nevertheless, the Tribunal has recorded a clear finding that the capacity of the donor to make the gift was not proved before the AO. The observation of the Tribunal that the AO was not confronted with fresh evidence, adduced by the assessee, before the CIT(A) in the form of pay slips of the donor for three months also assumes importance when considered in the context of the impugned direction to re-examine the issue. We do not find any merit in the contention of learned Counsel that the Tribunal has not reversed the finding recorded by the CIT(A) to the effect that the identity and the capacity of the donor stood proved. Having observed that the assessee had not explained the reason for not producing the donor before the AO, when asked to do so and that the assessee has failed to discharge the primary burden cast upon her to prove the genuineness of the gift, we find it difficult to accept the plea that the Tribunal was not in doubt about the capacity of the donor and yet it decided to remit the matter back to the AO for fresh adjudication. It is manifestly clear from the impugned order that one of the factors, which has weighed with the Tribunal to remand the case back to the AO is the admission of additional evidence by the CIT(A) without affording an opportunity to the AO to rebut the same.
8. Tested on the touchstone of the principles to be kept in view while determining whether or not the question raised in a case is a substantial question of law, as laid down by the apex Court in Santosh Hazari v. Purushottam Tiwari (Dead) By LRs , we are of the view that none of the questions proposed can be categorised as a substantial question of law. As noted above, the Tribunal, on a reappraisal of the entire evidence adduced by the assessee, has come to the conclusion that there was deficiency in the enquiry conducted by the AO in regard to the capacity of the donor to make a gift of Rs. 11 lakhs and therefore, the matter needs to be remanded back to him for fresh adjudication on this aspect. All the questions proposed by the appellant relate to the justification of the remand order made by the Tribunal which, in our opinion, cannot be said to constitute a question of law, much less a substantial question of law.
9. Resultantly, we decline to entertain the appeal. Dismissed.