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2014 (8) TMI 750 - AT - Income TaxAddition u/s 68 - justification for collection share premium - Opportunity of being heard – Burden to prove – Held that:- There has been complete non-discharge by the assessee of the burden of proof on it - The shares are subscribed to in private placement, and therefore not in response to a public offering - even with regard to the creditor-subscribers other than the six companies qua which representation was sought by the Revenue from the assessee, as it becomes clear, that they were subject to investigation consequent to a search action by the Revenue, no materials except, as it appears, confirmations and share certificates, have been furnished by the assessee, which rather confirm the factum of the credit and not of it being genuine - It is, given the prescription of s. 68, which is a rule of evidence, statutorily mandated, the truth of those documents or of the same as representing genuine transactions, that is to be established - But for s. 68, the principle that what is apparent is real would obtain, so that the onus to disprove it – with evidences - would be on the person alleging it as not so, i.e., the Revenue - The onus on the assessee – it of course cannot be required to prove a negative, would depend on the facts and circumstances of the case – the material is considered to be part of the record – relying upon Hukumchand Mills Limited Versus Commissioner Of Income-Tax, Central, Bombay [1966 (9) TMI 38 - SUPREME Court] – thus, the matter is to be remitted back to the CIT(A) for fresh adjudication.
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