ADITYA NATH MITTAL, J. - (1.) BOTH these appeals contain common questions of law regarding gifts to both the assessees by same donors, hence are taken together.
(2.) INCOME Tax Appeal No.124 of 2001 has been admitted on the following questions of law:- "(i) Whether on the facts and in the circumstances of the case, in view of the fact that the Assessing Authority has not found entries in the diary correct and reliable and, therefore, referred the matter to the departmental Valuation Officer for the value of the cost of construction and once, departmental valuer has estimated cost of construction at Rs.5,04,100.00 it was not open to the Assessing Authority to determine the cost of the construction on the basis of entry of diary which was rough and not reliable? (ii) Whether on the facts and in the circumstances of the case, once, matter has been referred to the departmental valuer for the determination of the cost of the construction and once, departmental valuer has determined the cost of construction which has not been objected by the Assessee, the valuer report was binding upon Assessing Officer and ought to have been accepted? (iii) Whether, in view of the fact that with regard to gift of Rs.50,000/- received from one Sri Ram Lal Kanodia, Nepal, appellant has filed confirmatory letter, income tax assessment order and copies of drafts by which payment was received, Tribunal as well as authorities below were justified in not accepting the gift merely on the ground that appellant could not produce Sri Ram Lal Kanodia for examination? (iv) Whether in view of the fact that by filing confirmatory letter, income tax assessment order, copy of two drafts, initial burden has been discharged by Assessee inasmuch as, there was any legal justification in treating a sum of Rs.50,000/- as unexplained deposit?" Income Tax Appeal No.136 of 2001 has been admitted on the following questions of law:- "(i) Whether in view of the fact that with regard to the gift of Rs.45,000.00 received from Sri Ramji Lal Kanodia, Sri Vishnu Prasad Kanodia and Sri Rajendra Kanodia, all resident of Krishna Nagar, Nepal and relatives, appellant has filed confirmatory letter, income tax assessment orders and copies of drafts by which payments were received, Tribunal as well as authorities below were justified in not accepting the gift merely on the ground that the appellant could not produce the donors? (ii) Whether in view of the fact that by filing confirmatory letters, Income Tax Assessment order, copies of two drafts, initially burden has been discharged by the Assessee inasmuch as, there was any legal justification in treating a sum of Rs.45,000.00 as unexplained deposit?" Both the appellants are doctors by profession and are husband and wife. On 5.3.1992, a search under Section 132(1) of the Income Tax Act, 1961 (the Act) was conducted at their residence and Nursing Home, in which certain documents regarding unexplained investments were found. The appellants house was under construction, in which they had shown the investments of Rs.4,45,000/- upto 31.3.1992, while as per rough diary found at the residence of the appellants during search, it showed investments of Rs.7,10,229/-. The matter was referred to Departmental Valuer, who valued the cost of construction at Rs.5,04,100/-. Apart from it, the assessees had claimed to have received following gifts from the following persons, who are citizens of Nepal:- Smt. Rashmi Agarwal Dr. Ram Autar Agarwal Sl. Name of the Donor Amount Name of the Donor Amount No. 1 Sri Ramji Lal Rs.50,000/- Sri Ramji Lal Kanodia, Rs.10,000/- Kanodia, Krishna Nagar, Nepal Krishna Nagar, Nepal 2 Sri Vishnu Prasad Rs.25,000/- Kanodia, Krishna Nagar, Nepal 3 Sri Rajendra Kanodia, Rs.10,000/- Krishna Nagar, Nepal In respect of the above gifts, the assessees were asked to furnish the following details:- "(i) To produce the person for cross examination to know the capacity and genuineness of transaction. (ii) To furnish the balance sheet of the donors. (iii) To produce the bank pass book from where the money has been withdrawn by the donor. (iv) Relationship with donor. (v) To how many persons assessee has made gift upto date. The assessee has stated in reply as under:- (i) No gift made to any person by the assessee upto date. (ii) No books of account maintained by the donor as he is citizen of Nepal. (iii) Not possible to produce bank pass book as the donor is citizen of Nepal. (iv) Donor can not be produced as he is citizen of Nepal. (v) The Donor is 'Uncle' of the assessee."
(3.) THE assessees replies were not accepted because the assessees did not produce the donors' bank pass book and the balance sheet. Accordingly, the amount of gifts were treated as unexplained money of the assessees and were added in their total income. The assessees filed appeals before the Commissioner of Income Tax (Appeals), Varanasi which were partly allowed. Against the order of Commissioner of Income Tax (Appeals), Varanasi, appeals to Income Tax Appellate Tribunal were filed by the assessees which were dismissed. These appeals have been filed under Section 260A of the Income Tax Act, raising the aforesaid questions of law. ;