COMMISSIONER OF INCOME TAX Vs. SURESH KUMAR KAKAR

JUDGEMENT

(1.) TO the asst. yr. 2000 -01. Two issues were raised before the Tribunal. One was concerning the validity of the proceedings under s. 147 of the IT 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 AO under s. 68 of the said Act. The addition had also been confirmed by the CIT(A).

(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 s. 147 of the said Act in as much 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 AO 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 s. 68 of the said Act. The CIT(A) examined the matter and agreed with the findings of the AO with regard to the genuineness of the gifts. According to the CIT(A), 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 CIT(A). 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 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 AO 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 AO and the CIT(A) 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.