Ita/47/2012 Commissioner Of Income Tax, Kolkata-Xii, Kolkata v. Sanjeev Jain

O-103 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITA/47/2012COMMISSIONER OF INCOME TAX, KOLKATA-XII, KOLKATAVS.SANJEEV JAIN BEFORE : THE HON’BLE JUSTICE T.S. SIVAGNANAM And THE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 20[th] February, 2023 Appearance :Mr. Amit Sharma, Adv.… for appellant The Court : This appeal filed by the revenue under Section 260A of theIncome Tax, 1961 (the Act) is directed against the order dated September 16,2011 passed by the Income Tax Appellate Tribunal, “B” Bench, Kolkata(Tribunal) in ITA No.887/Kol/2010 for the assessment year 2003-04. The appeal was admitted on 4[th] April, 2012 on the following substantialquestions of law :- i)Whether on the facts and in the circumstances of the case, the LearnedTribunal has arrived at a conclusion without considering relevantmaterials that resulted the findings of the learned Tribunal unreasonableand perverse in law ? ii) Whether on the facts and in the circumstances of the case, the LearnedTribunal has arrived at a conclusion by applying wrongly the principle oflaw laid down in the decision of the Hon’ble Apex Court in the case ofSumati Dayal –vs- CIT reported in 214 ITR 801 (SC) ? iii) Whether in the facts and circumstances of the case the Learned Tribunalwas justified in holding that the burden of proof lies on the revenue andnot on the assessee ? We have heard Mr. Amit Sharma, learned standing counsel appearing forthe appellant/revenue. The short issue which falls for consideration in this appeal is whether theassessee was able to establish the genuineness of the gift received by theassessee. In the earlier round of litigation the learned Tribunal had remandedthe matter to the Assessing Officer with a specific direction to consider thedocuments filed by the assessee which, according to the assessee, is sufficient toshow that they have discharged the initial burden of proof on them to show thatthe gift was genuine. The learned Tribunal notes that the Assessing Officer onremand did not comment upon the documents which were produced before theTribunal but proceeded to find fault with the assessee on the ground that thereturn of income of the donor Jatin Mehta was not produced. Therefore, thelearned Tribunal was of the view that the revenue has not made out any case forinterfering with the order passed by the Commissioner of Income Tax-XX,Kolkata [CIT(A)] dated 19[th] February, 2010. Mr. Amit Sharma, learned standing counsel for the appellant, wouldvehemently contend that the bonafides and genuineness of the gift have notbeen established and the Court should take into consideration the relationshipof the parties which will clearly show that there is no genuinity in the gifts. The CIT(A) considered the specific issue as to whether the assessee hasbeen able to establish the identity and creditworthiness of the donor. The CIT(A)in his order dated 19[th] February, 2010 records the fact that the donor had aNRE account in ING Vysya Bank and the said Bank directly addressed to theAssessing Officer confirming about the NRE account maintained by the donorand a cheque for Rs.25 Lacs in favour of the assessee was debited to the NREaccount. The CIT(A) also notes that the assessee has furnished his businessdetails directly to the Assessing Officer and on the other hand, the AssessingOfficer has failed to bring any positive material on record to show that the giftsare not genuine and there was no material brought on record by the revenue tosuggest any nexus between the assessee and the gift received by his wife. Thus,on appreciation of the facts the CIT(A) allowed the appeal. The learned Tribunal on its part re-appreciated the factual position andnoted that the identity of the donor has been well established by the documentsproduced and thus the assessee has discharged the initial onus cast upon theassessee to establish the identity, genuineness as well as the creditworthiness ofthe donor. In such circumstances, the burden shifts on the revenue to establishit otherwise. This having not been done by the revenue, we are of the view thatthe CIT(A) as well as the Tribunal rightly granted relief in favour of the assessee. In the result, the appeal is dismissed and the substantial questions of laware answered against the revenue. (T.S. SIVAGNANAM, J.) (HIRANMAY BHATTACHARYYA, J.) SN/S.Pal