1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. INCOME TAX APPEAL (LODG.) NO.2725 OF 2009 The Commissioner of Income Tax-1 ..Appellant. Vs. Dr. Prabhu Santosh Kamlesh ..Respondent. .... Mr. Vimal Gupta for the Appellant. Mr. S.N. Inamdar for the Respondent. ..... CORAM : DR.D.Y.CHANDRACHUD & J.P.DEVADHAR, JJ. 7 June 2010. P.C. : The appeal by the Revenue under Section 260-A of the Income Tax Act, 1961 raises the following substantial question : “a. Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in law in deleting the addition made by the Assessing Officer amounting to Rs. 23,37,000/- as unexplained cash credit u/s. 68 being gift received by the Assessee in the form of Resurgent India Bonds, from a Non Resident Indian residing in Dubai – UAE even though the financial capability of the donor has not been proved at either the assessment stage or at the appellate stage;” 2 2. A pure finding of fact has been rendered by the CIT (A) which has been confirmed by the Tribunal. It may be noted that the Assessing Officer had held that he was satisfied about the identity of the donor and of the genuineness of the transaction by which certain bonds were gifted to the assessee on 1 January 2001. The Resurgent India Bonds were held by the donor since 31 October 1998 over two years prior to the gift that was effected to the assessee. The Assessing Officer purportedly relied upon a telephonic conversation which he had with the donor. The Tribunal was justified in holding that the transcript of the alleged telephonic conversation could not be used against the assessee since the conversation was recorded behind the back of the assessee and the assessee himself was not given an opportunity of cross examination. In any event in the course of the conversation the donor confirmed having furnished the gift. 3. Both the Commissioner (Appeals) and the Tribunal have concurrently held that the donor had a sufficient capacity to make the gift. The donor was related by marriage. In these 3 circumstances, having regard to the pure finding of fact which has been recorded by the Commissioner (Appeals) and by the Tribunal, no substantial question of law would arise. The appeal is accordingly dismissed. (Dr. D.Y. Chandrachud, J.) (J.P. Devadhar, J.)