{"id":125897,"date":"2006-03-29T00:00:00","date_gmt":"2006-03-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-rajendran-vs-the-assistant-commissioner-on-29-march-2006"},"modified":"2018-03-03T16:57:01","modified_gmt":"2018-03-03T11:27:01","slug":"a-rajendran-vs-the-assistant-commissioner-on-29-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-rajendran-vs-the-assistant-commissioner-on-29-march-2006","title":{"rendered":"A.Rajendran vs The Assistant Commissioner on 29 March, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Rajendran vs The Assistant Commissioner on 29 March, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 29\/03\/2006  \n\nCORAM   \n\nTHE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN            \nAND  \nTHE HON'BLE MR.JUSTICE P.P.S.JANARTHANA RAJA           \n\nT.C. (A) NO.74 of 2002\nand T.C. (A) Nos. 75, 76 & 78 TO 82 OF 2002 \n\nT.C.NO.74 OF 2002  \n\nA.Rajendran                                    ..Appellant\n\n-Vs-\n\nThe Assistant Commissioner  \nSpecial Investigation Circle III\nCoimbatore                              ..Respondent<\/pre>\n
        Prayer:   Appeal  against  the  order  of  the  Income  Tax  Appellate
\nTribunal, “C” Bench, Chennai upholding the order of the Commissioner of Income
\nTax (Appeals).\n<\/p>\n
!For Appellant  :  Mr.Aravind P Datar, SC for
\n                :  Mr.R.Sundaram<\/p>\n
^For Respondent :  Mr.N.Muralikumaran <\/p>\n
:COMMON JUDGMENT       <\/p>\n
(Judgment of the court was delivered by
\nJustice R.Balasubramanian) <\/p>\n
        Tax  Case  Nos.74 to 76\/2002 stand admitted on the following questions
\nof law:\n<\/p>\n
        “(a) Whether in the facts and circumstances, the Income-Tax  Appellate
\nTribunal  was  correct  in  law  to  accept  the principle of preponderance of
\nprobabilities in holding that the claim of  the  appellant  that  the  sum  of
\nRs.15,62,500\/- received by him by way of gifts through normal Banking Channels
\nwas  not genuine and that it was liable to be assessed under section 68 of the
\nIncome Tax Act, 1961?\n<\/p>\n
        (b) Whether in the light of the law established and based on the facts
\nand in the circumstances  of  the  case,  the  learned  Income  Tax  Appellate
\nTribunal  is  legally justified in concluding that the burden of proof cast on
\nthe appellant under section 68 of the Income Tax  Act,  19  61  has  not  been
\ndischarged  and the ingredients for invoking section 6 8 of the Income Tax Act
\nare present?\n<\/p>\n
        (c) Whether in the facts and circumstances of the case, the conclusion
\nof the Tribunal that the claim of gift is not genuine is reasonable and  based
\non relevant material and not perverse?”\n<\/p>\n
T.C.Nos.78 to 82\/2002 stand admitted on the following questions of law:\n<\/p>\n
        “(a)  Whether in the facts and circumstances, the Income Tax Appellate
\nTribunal was correct in law  to  accept  the  principle  of  preponderance  of
\nprobabilities  in  holding  that  the  claim  of the appellant that the sum of
\nRs.15,62,500\/- received by him by way of gifts through normal Banking Channels
\nwas not genuine and that it was liable to be assessed under section 68 of  the
\nIncome Tax Act, 1961?\n<\/p>\n
        (b) Whether in the light of the law established and based on the facts
\nand  in  the  circumstances  of  the  case,  the  learned Income Tax Appellate
\nTribunal is legally justified in concluding that the burden of proof  cast  on
\nthe  appellant  under  section  68  of the Income Tax Act, 19 61, has not been
\ndischarged and the ingredients for invoking section 68 of the Income  Tax  Act
\nare present?\n<\/p>\n
        (c) Whether in the facts and circumstances of the case, the conclusion
\nof  the Tribunal that the claim of gift is not genuine is reasonable and based
\non relevant material and not perverse?”\n<\/p>\n
        2.  The appellant in each of these appeals is an assessee  within  the
\njurisdiction of  the  respondent.    The  appellant  in T.C.No.75\/2002 and the
\nappellant in T.C.No.80\/2002 is one and the same.  He  is  the  father  of  the
\nappellant in T.C.No.76\/2002 and T.C.No.82\/2002 and husband of the appellant in
\nT.C.Nos.79\/2002 and  81\/2002.    The above referred to appellant in T.C.Nos.75
\nand 80\/2002 is the brother of the appellant in T.C.No.74\/2002.  The  appellant
\nin T.C.No.74\/2002  is  the  husband  of  the appellant in T.C.No.78\/2002.  The
\nassessment orders in the respective tax cases are as hereunder:\n<\/p>\n
                        T.C.No.74\/2002          - 1995-96\n                        T.C.No.75\/2002          - 1996-97\n                        T.C.No.76\/2002          - 1995-96\n                        T.C.No.78\/2002          - 1995-96\n                        T.C.No.79\/2002          - 1996-97\n                        T.C.No.80\/2002          - 1995-96\n                        T.C.No.81\/2002          - 1995-96\n                        T.C.No.82\/2002          - 1996-97\n\n<\/pre>\n
In respect of those “assessment orders”, there is a credit entry in favour  of
\nthe respective assessee as hereunder:\n<\/p>\n
        (a) Rs.15,63,600\/- credited as NRI gifts received (US$ 50000)\n<\/p><\/blockquote>\n
        (b) Rs.8,64,500\/- credited as NRI gifts received (US$ 25000)\n<\/p><\/blockquote>\n
        (c) Rs.21,85,604\/- credited as NRI gifts received (US$ 25000)\n<\/p><\/blockquote>\n
        (d) Rs.15,62,500\/- credited as NRI gifts received (US$ 50000)\n<\/p><\/blockquote>\n
        (e) Rs.15,50,000\/- received as gift  added as an income of the
\n        appellant  source being undisclosed.\n<\/p><\/blockquote>\n
        (f) Rs.26,47,647\/- NRI gift\n<\/p><\/blockquote>\n
        (g) Rs.21,82,847\/- received as a gift from NRI is added as an income
\n        of the assessee from undisclosed source.\n<\/p><\/blockquote>\n
        (h) Rs.8,64,500\/- received as a gift from NRI is added as an income
\n        of the assessee from undisclosed source.<\/p><\/blockquote>\n
        3.   The  assessing  officer did not accept the explanation offered by
\nthe respective assessee that the amount credited to their  respective  account
\nis  a gift from NRI and proceeded to add it as the income of the assessee from
\nan undisclosed source.  There were assessment orders for each of the  assessee
\nfor the  assessment  years  referred to earlier.  The assessment order in each
\ncase is dated  27.03.1998,  31.03.1999,  27.03.1998,  27.03.1998,  31.03.1999,
\n27.03.1998, 27.03.1998  and  31.03.1999  respectively.    Each of the assessee
\nfiled an appeal before the Commissioner of Income Tax (A), Coimbatore, who, by
\nseparate order dated 31.03.2000 passed in  each  case,  dismissed  the  appeal
\nthereby affirming  the  order  of  the  assessing  officer.   Thereafter, each
\nassessee filed a separate appeal before the  Income  Tax  Appellate  Tribunal,
\nChennai.  All the appeals were disposed of by a common order dated 03.08.2001.
\nThe  Accountant  Member affirmed the order of the lower authorities, while the
\nJudicial Member did not agree and  therefore,  wrote  a  dissenting  judgment.
\nTherefore,  the  points  in  controversy were referred by the President of the
\nAppellate Tribunal to the Senior Vice President  of  the  Appellate  Tribunal,
\nwho,  by  order  dated  20.02.2002,  agreed with the finding of the Accountant
\nMember.  As a result thereof, the impugned order dated 18.04.2002 came  to  be
\npassed affirming  the order of the lower authorities.  The effect of the above
\nproceedings is, the explanation offered by each assessee that the credit entry
\nin their respective account represents only a gift from NRI  stands  negatived
\nand  as  a  consequence thereof, the respective credit entry is treated as the
\nincome of  the  respective  assessee  from  an  undisclosed  source.     Heard
\nMr.Aravind  P  Datar learned senior counsel appearing for the appellant in all
\nthese appeals and Mr.N.Muralikumaran learned counsel appearing for the Revenue
\nin all these appeals.\n<\/p>\n
        4.  There is no dispute on the following facts:\n<\/p>\n
        “The donor is a person by name Sampath Kumar; he is the common  donor;
\nthe  donees are the respective assessees; the gifts from the donor, in respect
\nof which credit entries have been made, were during the period from 08.07.1992
\nto 19.10.1995; all the gift amounts have been channelised through bank namely,
\nthe payments were made by instruments issued by a foreign  bank  and  credited
\ninto  the  respective  assessee’s  account by negotiating it through a bank in
\nIndia; the donor’s father was working as a driver under  assessee  Srinivasan;
\nthe donor is a resident of the United Kingdom; the donor invested huge sums of
\nmoney  in  India  in  movable  and  immovable  properties,  including  opening
\nfactories in and around Coimbatore; the donor appeared in response to a notice
\nissued to him by the Income Tax Authorities  and  was  examined;  he  produced
\nmaterials  in  support  of  his  solvency;  proceedings against the donor were
\ninitiated for alleged violation of Foreign Exchange Regulation  Act;  however,
\nthe  said  proceedings were not taken to it’s logical end; in other words, the
\nproceedings initiated as referred to above were not continued at all; each  of
\nthe assessees have credited their books of account with the amount received by
\nthem  as  gifts;  besides  the donor giving a statement confirming that he had
\ngifted various sums of money to each of the assessee as found reflected in the
\ncredit entries made in their books of account, each of the assessees have also
\ngiven a statement admitting receipt of gift from the donor  and  crediting  it
\ninto  their  respective  accounts; the donor, in all, is shown to have brought
\ninto India, during the relevant time through proper channel, foreign  exchange
\nto the value of US$ 61,06,000, which includes the amounts made by way of gifts
\nin India.”\n<\/p>\n
        5.   Mr.Aravind  P  Datar  learned  senior  counsel  appearing for the
\nappellant in all these appeals would contend that the hierarchy of authorities
\nunder the Act had acted only on surmises  and  conjectures  in  rejecting  the
\nexplanation offered  by  the  assessee in each case.  According to the learned
\nsenior counsel, the assessee had established the following facts namely,  “who
\nthe donor is; what his capacity is; all the transactions are through bank; the
\nrespective  receipts  have  been  credited  into  the  books of account of the
\nassessee; the donor is an income tax assessee in United Kingdom as well as  in
\nIndia;  the  donor has every good reason to make gifts” and if these facts are
\nestablished, then the assessing officer has no right to  go  behind  this  and
\nprobe  further  as  to  why  the  donor  has  gifted  such  huge sum of money.
\nMotivation to make such a large gift would  be  totally  extraneous  when  the
\nexplanation offered  by  the assessee is found acceptable.  In considering the
\nexplanation, though the assessing officer and  the  hierarchy  of  authorities
\nhave  a  right to probe, such a probe should not go beyond a limit, especially
\nwhen the assessee had established the earlier  referred  to  facts.    In  any
\nevent,  the  assessing officer and the hierarchy of other authorities ought to
\nact reasonably and definitely not unreasonably.  In these batch of cases,  the
\nreasons given by the assessing officer and the higher authorities, in the face
\nof  the  materials  established by the assessee, in rejecting the explanation,
\nare purely on surmises  and  conjectures.    If  the  explanation  offered  is
\nrejected  arbitrarily  and  capriciously  thereby  refusing  to draw the legal
\nconclusions that can be drawn on the shown facts, then it would  itself  be  a
\nquestion of law which the court would be in a position to consider.  Therefore
\nthe  submission  made by the learned senior counsel is that an interference is
\ncalled for at the hands of this court.  Learned senior counsel brought to  the
\nnotice of this court the following judgments in support of his case:\n<\/p>\n
        (a) Commissioner of  Income  Tax  Vs.    Orissa  Corporation  P.  Ltd.
\n(1986) 159 ITR Pg.78;\n<\/p>\n
        (b) Rukmanand Vs.  State of Bihar (AIR 1971 SC Pg.746);\n<\/p>\n
        (c) Commissioner of Income Tax Vs.  Sibal  (2004)  269  ITR  Pg.429  (
\nDelhi);\n<\/p>\n
        (d) Deputy  Commissioner of Income Tax Vs.  Rohini Builders (2002) 256
\nITR Pg.360 (Guj.);\n<\/p>\n
        (e) Nemi Chand Kothari Vs.  Commissioner of Income Tax (2003) 264  ITR
\nPg.254 (Gau)  Head notes only.\n<\/p>\n
        (f) Muralidhar  Lahorimal  Vs.   Commissioner of Income Tax (2006) 280
\nITR Pg.512 (Guj.).\n<\/p>\n
Mr.N.Muralikumaran, learned counsel  appearing  for  the  Revenue,  while  not
\ndisputing the facts established on record by the assessee, would still contend
\nthat enormous amount of gift made itself probabilises that the receipts are in
\nthe nature of a income of the assessee from an undisclosed source.  Therefore,
\nthe  authorities have proceeded to consider the explanation on the touch stone
\nof human probabilities.\n<\/p>\n
        6.  Before proceeding to analyse the  merits  and  demerits  of  these
\nbatch  of cases, let us apply our mind to section 68 of the Income Tax Act and
\nthe decided case laws on that section.  Under section 68  of  the  Income  Tax
\nAct,  hereinafter referred to as “the Act”, “when any sum is found credited in
\nthe books of account of an assessee and the  assessee  offers  no  explanation
\nabout the nature and source thereof, or the explanation offered by him is not,
\nin  the  opinion  of  the  assessing  officer,  satisfactory,  then the sum so
\ncredited may be charged to income tax as the income of  the  assessee  of  the
\nprevious year”.    In  (19  63)  Vol.49  ITR (SC) Pg.112 (Sreelekha Banerjee &
\nOthers Vs.  Commissioner of Income Tax), the Supreme Court, while dealing with
\nsection 34 of the Income Tax Act, 1922 (which corresponds to section 68 of the
\ncurrent Act), held that “if the explanation shows that the receipt was not  of
\na  income  nature,  the  Department  cannot  act  unreasonably and reject that
\nexplanation to hold that it was  income.    If  however,  the  explanation  is
\nunconvincing  and one which deserves to be rejected, the Department can reject
\nand draw the  inference  that  the  amount  represents  income  etc.,……..”
\nTherefore,  the  principle  that can be deduced from the above judgment is, if
\nthe explanation of the assessee shows that the receipt was  not  of  a  income
\nnature,  the  Department cannot act unreasonably in rejecting the explanation.
\nIn (1995) Vol.214 ITR (SC) Pg.801 (Sumati Dayal Vs.   Commissioner  of  Income
\nTax),   the  Supreme  Court  again  reiterated  that,  while  considering  the
\nexplanation offered by the assessee for the amount credited  in  his  account,
\nthe Department  cannot, however, act unreasonably.  For such a conclusion, the
\nSupreme Court relied upon it’s earlier  judgment  namely,  (1963)  Vol.49  ITR
\nPg.112.   In  (1971)  Vol.82  ITR  (SC) Pg.540 (Commissioner of Income Tax Vs.
\nDurga Prasad More), the Supreme Court held as hereunder:\n<\/p>\n
        “It is true that an apparent must be considered real  only  if  it  is
\nshown  that  there  are  reasons to believe that the apparent is not the real.
\nThe Taxing Authorities were not required to put on blinkers while  looking  at
\nthe documents  produced  before  them.    They  are  entitled to look into the
\nsurrounding circumstances to find out the reality  of  the  recitals  made  in
\nthose documents.”\n<\/p>\n
The  Supreme  Court  again, in the judgment reported in (1995) 214 ITR Pg.801,
\nhad reiterated the law laid down in (1971) Vol.82  ITR  (SC)  Pg.540  that  an
\napparent must be considered real only if it is shown that there are reasons to
\nbelieve  that the apparent is not the real and that the Taxing Authorities are
\nentitled to look into the surrounding circumstances to find  out  the  reality
\nand   the  matter  has  to  be  considered  by  applying  the  test  of  human
\nprobabilities.  Therefore, it is clear  from  the  above  judgments  that  the
\nburden  is  on the assessee to show that the receipt is not of a income nature
\nby giving an explanation; the income  tax  officer  is  not  expected  to  put
\nblinkers  and  accept it as it is; it is open to him to probe further and find
\nout whether the apparent is real or not and take a decision on  such  probing,
\nin the light of human probabilities.  However, he should not act unreasonably.\n<\/p>\n
        7.   Let  us  now  examine  the  assessment  order  of  the  Assistant
\nCommissioner of Income Tax as affirmed by the various higher authorities.   In
\nso  doing,  we  should bear in mind the reasons which weighed with the various
\nauthorities in rejecting  the  explanation  offered  by  the  assessee,  which
\nincludes the  statement  given  by  the  donor  confirming  the  gifts.    The
\nCommissioner of Income Tax, in his appellate order, had extracted the  reasons
\nwhich  entered  the mind of the assessing officer in rejecting the explanation
\nand those reasons alone  found  favour  with  the  Accounting  Member  of  the
\nAppellate  Tribunal  (the  Judicial  Member  dissenting)  and  the Senior Vice
\nPresident of the Appellate Tribunal.  We extract those reasons as hereunder:\n<\/p>\n
        “The said Sampathkumar invested huge sums  in  India  in  movable  and
\nimmovable properties  including  factories  in  and  around Coimbatore.  While
\nexamined by the A.O., Shri.Sampathkumar promised to file  the  source  of  the
\nsame but has so far failed to do so.\n<\/p>\n
        The  statements  given  by  Shri.Srinivasan and his family members are
\ncontradictory.  Thus while Shri.Srinivasan stated  that  Shri.    Sampathkumar
\nused  to stay with him on his visits in India, his wife and son stated that he
\nused to stay in Hotel Surya.\n<\/p>\n
        Although  all  the  donees  claim  to  be  close  friends   of   Shri.
\nSampathkumar, none knows the name of his parents or the parents of his wife.\n<\/p>\n
        Shri.Rajendran  and  Shri.Sampathkumar  are  not related and belong to
\ndifferent communities.\n<\/p>\n
        Shri.Rajendran is not even aware of the  fact  that  Shri.Sampathkumar
\nhas  two  daughters while he stated that Shri.Sampathkumar has one son and one
\ndaughter.\n<\/p>\n
        The gifts received were in the name of Ariavan Thotan  or  Suprotoman.
\nOnly  after enquiry by the department, it transpires that they were aliases of
\nShri.Sampathkumar.\n<\/p>\n
        The nickname was Suprotoman or Toto.  Why the alias Ariavan Thotan was
\nused?\n<\/p>\n
        The letters of the donor express reciprocation from the donees  during
\nhis stay in India.\n<\/p>\n
        Hon’ble Supreme Court in Durgaprasad More’s case has observed that the
\nA.O.,  is  not  supposed to put on blinkers while examining documents produced
\nbefore him.\n<\/p>\n
        Although Sampathkumar has a brother, no gifts were made to him and  he
\nwas working as a driver in Indian Bank, Coimbatore.\n<\/p>\n
The  Commissioner  of  Income  Tax  (Appeals), after extracting the reasons as
\nreferred to above, referred to the case laws reported in  (1995)  Vol.214  ITR
\nPg.801  and (1971) Vol.82 ITR Pg.540; extracted the statement of the donor and
\ndisposed of the appeal by giving  his  conclusions  in  two  sentences.    The
\nconclusion is as hereunder:\n<\/p>\n
        “This is  rather  shallow  and  hard to believe.  The preponderance of
\nprobabilities, the common course of human events as discussed earlier point to
\nthe contrary.”\n<\/p>\n
In fact, we find that the Commissioner of Income Tax (Appeals)  had  not  even
\napplied  his mind independently to any of the materials which entered the mind
\nof the assessing officer, except concluding  on  the  lines  indicated  above.
\nThere is no discussion at all in his order as to how the transaction concerned
\nin this case is opposed to the common course of human events.\n<\/p>\n
        8.   In the further appeal, the Appellate Tribunal, after referring to
\nthe judgments of the Supreme Court in Durga Prasad  More’s  case  and  Sumathi
\nDayal’s  case  and  the principles laid down therein as to how the explanation
\noffered by the assessee should be considered, had referred to the judgment  of
\nthe  Delhi  High Court in Sumathi Vachani’s case (1990) Vol.184 ITR Pg.121 and
\nproceeded to discuss the case on merits in paragraph No.10 of it’s order.   In
\nthe  course  of  discussion,  the  Accountant Member of the Appellate Tribunal
\nfound that the transaction was through regular banking channels and the  donor
\nhad confirmed  the  same.    Then,  after  finding  fault  with  the donor not
\nproducing proof for the source of investment in India, the  Accountant  Member
\nsimply  adopted  the  same  reasons  which  entered  the mind of the assessing
\nofficer and thus confirmed the order.  The Judicial Member  of  the  Appellate
\nTribunal  had taken upon the trouble of addressing to himself each ground that
\nentered the mind of the assessing officer and had given excellent reasons  for
\nnot  taking  those  circumstances  as  acting against the explanation and then
\ndecided to agree with the explanation.  The Judicial Member also found, at the
\nend of paragraph 20 of his order, that in the  context  of  the  capacity  and
\nstatus  of  the  donor and when there is no adverse finding by the Revenue, it
\nmust be held that there is a valid gift.  In paragraph No.17 of his order, the
\nJudicial Member also found that the Revenue had not proved  any  consideration
\nfor the gift.\n<\/p>\n
        9.   The  Senior Vice President of the Appellate Tribunal  III Member
\nhad recorded in his order that, in the course of that  hearing,  the  assessee
\nhad given the details and filed copies of the bank drafts or cheques issued by
\nthe donor  on  various  dates.  However, it appears from his order that he had
\nstarted  the  discussion  with  a  pre-conceived   notion   that   clandestine
\ntransactions  in  a good number of cases had emerged out of Coimbatore namely,
\nby engaging agents, by paying them commissions for arranging remittances  from
\nforeign countries  to  India.    He  had  also  found  in  his  order that the
\nAccounting Member had noted that the donor is well placed financially;  he  is
\nan  industrialist  in Great Britain; established some industries in Coimbatore
\nand building properties.  Then, going by the reasons which entered the mind of
\nthe assessing officer, which again went into the mind of the  Commissioner  of
\nIncome  Tax  (Appeals) and the Accountant Member, the Senior Vice President of
\nthe Appellate Tribunal  III Member  also  agreed  with  the  finding  of  the
\nAccountant  Member  by  concluding that giving donation of such a large sum of
\nmoney does not sound to be an action of any reasonable man, especially when it
\nis viewed from the point that the assessee is in the  business  of  jewellery.
\nIn  other  words,  his  conclusion  is  on the application of preponderance of
\nprobabilities.\n<\/p>\n
        10.  In (1995) 214 ITR Pg.801, the assessee  had  explained  that  the
\ncredited amounts represent her winnings in races.  On facts, it was found that
\nthe explanation is unsatisfactory because of the following reasons:\n<\/p>\n
        “The  assessee  has  no expertise in races; to accept that a race goer
\nhad won jackpot events so many times in a short period of two years, is highly
\nimprobable; in the books of account of the assessee, the  amount  representing
\ntravelling  expenses of assessee to travel to Hyderabad and Bangalore have not
\nbeen debited at all; likewise, losses suffered by the assessee  in  the  races
\nhave  not  been shown at all in the books of account and lastly, from the year
\n1972 onwards, she had stopped going to races”.  It was noted  that  from  that
\nyear onwards,  winnings  in  races were brought within the tax purview.  Those
\nreasons were  found  to  be  cogent  and  convincing  reasons  to  reject  the
\nexplanation offered  by  the  assessee.  In (1971) Vol.82 ITR (SC) Pg.540, the
\nSupreme Court was considering the explanation offered  by  the  assessee  that
\n“the property, from which income is generated, is the trust property; the sale
\ndeed  in  favour  of  the  assessee  shows that he purchased the property as a
\ntrustee and there is a subsequent deed creating a trust which records a corpus
\nof Rs.2 lakhs left in the hands of the assessee”.  In that context  only,  the
\nexplanation,  for  the  various  reasons  stated  in  the  original order, was
\nrejected.\n<\/p>\n
        11.  Now let us apply our mind  to  the  explanation  offered  by  the
\nassessee in  each  case,  which  is  similar.    The donor is identified as an
\nindustrialist in the United Kingdom.  It is shown that the donor is the son of
\na poor driver, who was driving a car of one of the assessees.   The  assessees
\nare closely  related.    The  donor  was  an young boy at that time and having
\nregard to his family poverty, one  of  the  assessees  had  been  helping  the
\ndonor’s father to meet both ends, which enabled the donor’s father to give him
\ngood education.    The donor had declared in his statement that he climbed the
\nladder only with the help rendered by one of the assessees and from that stage
\nonwards, he did not look back.  It is on  record  that  the  donor  went  from
\nstrength  to  strength  and  spread  his  wings to Indonesia first and then to
\nUnited Kingdom, where he is now prominently settled.  The donor had obtained a
\nDegree in Bachelor of Engineering.  The orders impugned show that the donor is
\nworth about Rs.20 crores and during the relevant time, he  had  brought  about
\nUS$ 61,60,000 into India through proper channel.  The donor had stated that as
\na gratitude for the help rendered by one of the assessees to his father, which
\nenabled  him  to come up in life and that too, to such an exalted position, he
\nhad made the gift.  All the gifts have come through proper banking channel and
\nthere is no hanky panky about it.  In fact, the donor appeared on  summons  by
\nthe Income  Tax  Department  and  gave  all  the  details.    The  Senior Vice
\nPresident, in his concurring order with the Accountant Member, had stated that
\natleast by that time, the donor had produced all the materials in proof of his
\nclaim.  Therefore it is clear that the assessees have established the identity
\nof the donor namely, the source, the solvency of the donor and  his  love  and
\ngratitude  for  the  family of the assessees, which made him to make the gift.
\nIn fact, the  assessing  officer  himself  had  referred  to  a  letter  dated
\n08.12.1994  of  the  donor,  which  shows  that,  as  one of the assessees was
\nconstructing a new house and as it is in progress,  any  additional  resources
\nwill enhance the construction progress and that is why he is sending US$ 50000
\nas his gift.    Love knows no bounds.  It is seen from the materials available
\non record that the donor was brought up  by  the  assessees  as  their  family
\nmembers.   It  stands  established that the name Ariavan Thotan and Suprotoman
\nare the nick names of the donor and it is an alias name.  It has also come out
\non record that those names relate to the donor.  There is nothing on record to
\nshow that the gifts received by the assessees were sent by  any  person  other
\nthan the  donor  in  his own name.  Simply because the donor writes letters in
\nhis alias name namely, letters dated 08.12.1994 and  27.05.1994,  cannot  mean
\nthat  there  is a dispute regarding the identity of the donor, especially when
\nthe donor appeared pursuant to the notice issued by the Income Tax Authorities
\nand affirmed his gifts.  The donor is shown to be an income tax  assessee  not
\nonly in the United Kingdom but also in India.  In addition to the above, it is
\nnot  in  dispute  that  the  proceedings initiated against the donor under the
\nprovisions of the Foreign Exchange  Regulation  Act  was  not  taken  to  it’s
\nlogical end  by  the  Department.   This means, the donor had not violated any
\nprovisions of the Foreign Exchange Regulation Act.\n<\/p>\n
        12.  In (1990) 184 ITR Pg.121 (Delhi) (Commissioner of Income Tax  Vs.
\nSunita Vachani), a Division Bench of the Delhi High Court held as hereunder:\n<\/p>\n
        “Even  though  it  may be surprising as to how large sums of money are
\nreceived by a family in India by way of  gifts  from  strangers  from  abroad,
\nunless  there  is something more tangible than suspicion, it will be difficult
\nto regard the moneys received in India from abroad as representing the  income
\nof the assessee in India.”\n<\/p>\n
That was  a  case where the gift was from strangers.  But that is not the case
\nhere.  In (2004) 269 ITR Pg.429  referred  to  supra,  the  Delhi  High  Court
\naccepted the declaration of the donors that they had gifted the amounts to the
\nassessees on  account  of  their love and affection for them.  That is exactly
\nthe case here.  In (2003) 264 ITR Pg.254 referred to supra, the Guwahati  High
\nCourt held that in order to establish the receipt of a cash credit as required
\nunder  section 68 of the Income Tax Act, 1961, the assessee must satisfy three
\nconditions namely, (1)  identity  of  the  creditor  (2)  genuineness  of  the
\ntransaction and  (3)  credit  worthiness  of  the  creditor.    Once  this  is
\nestablished, then, it is held that the assessee  has  discharged  his  burden.
\nThe assessees  in the present appeals had done that.  Then, going by the Delhi
\nHigh Court judgment referred to supra, something more tangible than  suspicion
\nwould be necessary to reject the explanation offered by each of the assessees.
\nIn (2006) 280 ITR Pg.512 referred to supra, the Gujarat High Court found fault
\nwith  the  Tribunal,  after the assessee satisfactorily explained the reasons,
\nthat  motivation  for  making  the  gift  having  not  been  established,  the
\nexplanation must  be  rejected.    The  Gujarat High Court held that, once the
\nassessee discharges his burden of prooving the relevant facts, then motivation
\nfor making the gift is irrelevant.  As we have already noted,  in  this  case,
\nthe donor had shown his love and gratitude for the family of the assessees; he
\nwanted  to  reciprocate  by  showing  his gratitude by making the gift; he has
\nchannelised the transaction through banking channel and he  had  confirmed  in
\nhis declaration  that he had made the gifts.  In the said circumstances, it is
\nnot for the Income Tax Authorities to go one step further and read his mind as
\nto why he has decided to make  a  substantial  gift.    Simply  because  close
\nrelatives  are  not  shown  as the beneficiaries of such gift, the gift itself
\nwould not be invalidated in law, is the settled position in law.\n<\/p>\n
        13.  Now, if we apply our mind to the various reasons, which  we  have
\nextracted  in  the  earlier portion of this judgment and which had entered the
\nmind of the authorities under the Act to reject the explanation,  we  have  no
\ndoubt  at  all that the authorities were in the realm of imagination, surmises
\nand conjectures.\n<\/p>\n
        14.  On the facts of this case, when the  assessees  have  established
\nall the requirements of section 68 of the Income Tax Act as referred to above,
\nrejection   of   those   explanations  is  definitely  due  to  arbitrary  and
\nunreasonable exercise of power.  In (1986) 159 ITR Pg.78  referred  to  supra,
\nthe  Hon’ble  Supreme  Court  of  India  was  referring to one of it’s earlier
\ndecision reported in (1959) 37 ITR Pg.288  (Lalchand  Bhagat  Ambica  Ram  Vs.
\nCommissioner of Income Tax) wherein, the Supreme Court has held as hereunder:\n<\/p>\n
        “This  court held that when a court of fact arrives at its decision by
\nconsidering material which is irrelevant to the enquiry, or acts on  material,
\npartly  relevant  and  partly  irrelevant, and it is impossible to say to what
\nextent the mind of the court was affected by the irrelevant material  used  by
\nit  in arriving at its decision, a question of law arises, whether the finding
\nof the court is not vitiated by reason of its having relied upon  conjectures,
\nsurmises and suspicions not supported by any evidence on record or partly upon
\nevidence and partly upon inadmissible material.  On no account whatever should
\nthe  Tribunal  base  its  findings on suspicions, conjectures or surmises, nor
\nshould it act on no evidence at all or on improper rejection of  material  and
\nrelevant  evidence or partly on evidence and partly on suspicions, conjectures
\nand surmises.  In that case, the so-called hundi racket in which the  assessee
\nwas alleged  to  have been involved was not proved.  That was only a suspicion
\nof the Revenue.”\n<\/p>\n
The Supreme Court in (1986) 159  ITR  Pg.78  referred  to  supra,  once  again
\nreferred  to another earlier decision of that court reported in (19 61) 41 ITR
\nPg.135 (Homi Jehangir Gheesta Vs.  Commissioner of Income Tax) wherein, it was
\nheld as hereunder:\n<\/p>\n
        “It was further observed that in determining whether an order  of  the
\nAppellate  Tribunal  would give rise to a question of law, the court must read
\nthe order of the Tribunal as a whole to determine whether every material fact,
\nfor and against the assessee, had been considered fairly and  with  due  care;
\nwhether  the  evidence  pro  and con had been considered in reaching the final
\nconclusion; and whether the  conclusion  reached  by  the  Tribunal  had  been
\ncoloured by irrelevant considerations or matters of prejudice.”\n<\/p>\n
It  was further held in (1961) 41 ITR Pg.135 that in considering probabilities
\nproperly arising from the facts  alleged  or  proved,  the  Tribunal  did  not
\nindulge in conjectures, surmises or suspicions.\n<\/p>\n
        15.   In  the  light  of the facts available in this case; the reasons
\nwhich entered the mind of the authorities to reject the explanation offered by
\nthe assessee in each case and in the context of the case laws referred  to  by
\nus above, we have no doubt at all that the explanation offered by the assessee
\nin each case has been arbitrarily and unreasonably rejected.  All the reasons,
\nwe  have  no  doubt  at  all,  are  in  the realm of surmises, conjectures and
\nsuspicions, which approach stands totally prohibited by the decided case  laws
\nreferred to  above.  We are fully conscious that the Appellate Tribunal is the
\nfinal fact finding body.  But on the facts established, the authorities  under
\nthe  Act  have failed to draw the only conclusion that is possible legally and
\nlogically.  Therefore, such a decision definitely raises  a  question  of  law
\nwarranting consideration at our hands.  Accordingly, all the questions of law,
\non  which the tax appeals are admitted, are answered in favour of the assessee
\nand against the Revenue.\n<\/p>\n
To<\/p>\n
1.The Commissioner of Income Tax (Appeals)\n<\/p>\n
2.The Asst.  Commr., Special Investigation Circle  III, Coimbatore\n<\/p>\n
3.The Income Tax Appellate Tribunal, “A” Bench, Chennai <\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Rajendran vs The Assistant Commissioner on 29 March, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29\/03\/2006 CORAM THE HON’BLE MR.JUSTICE R.BALASUBRAMANIAN AND THE HON’BLE MR.JUSTICE P.P.S.JANARTHANA RAJA T.C. (A) NO.74 of 2002 and T.C. (A) Nos. 75, 76 & 78 TO 82 OF 2002 T.C.NO.74 OF 2002 A.Rajendran ..Appellant […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-125897","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Rajendran vs The Assistant Commissioner on 29 March, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-rajendran-vs-the-assistant-commissioner-on-29-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Rajendran vs The Assistant Commissioner on 29 March, 2006 - 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