- (1.) THE present appeal is filed by the department under Section 260 -A of the Income Tax Act, 1961 against the judgement and order dated 09.06.2005 passed by the Income Tax Appellate Tribunal, Delhi in I.T.A. No. 409/AGRA/2004 for the assessment year 2001 -02.
(2.) ON 07.02.2009, a Coordinate Bench has admitted the appeal on the following substantial questions of law : - (a) Whether the I.T.A.T. was right in deleting the addition of Rs. 42,00,000/ - in respect of the unexplained gifts, when the donee in his statement has categorically denied to have made the gifts. (b) Whether the I.T.A.T. was right in deleting the above addition of Rs. 42,00,000/ - for the reason that the Assessing Officer has not granted proper opportunity to the assessee to cross examine the donor, when the ITAT should have actually restored the matter to the file of the Assessing Officer for allowing proper opportunity to the assessee to cross examine the donor.
(3.) THE brief facts of the case are that the assessee is the partner in the Firm namely M/s Agrawal Fashion, another partner was the brother of the assessee namely, Shri Surendra Behari Agrawal. The assessee has two minor sons namely, Rajat Agrawal and Rohit Agrawal. While doing the scrutiny, the A.O. observed that the assessee has taken the loan of Rs. 21,00,000/ - each from his minor sons through their mother namely, Smt. Meenu Agrawal, wife of the assessee. The A.O. in its order, observed that the amount was given to Shri Surendra Bihari Agrawal, brother of the assessee on his retirement from the firm, out of which a cheque of Rs. 53 lacs was given to him. It is alleged that a sum of Rs. 11 lacs was given to each minor child of the assessee by their uncle Shri Surendra Bihari Agrawal. The minor children have given the gifts to father through mother. Thus, the total loan of Rs. 42 lacs was received by the assessee from his minor children. The A.O. found the said gifts was bogus and made the addition of Rs. 42,00,000/ -, which was confirmed by the First Appellate Authority. However, the Tribunal has accepted the gifts as genuine and deleted the addition. Being aggrieved, the Department has filed the present appeal.;