TMI Blog2016 (10) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent parts of the plant, stated to be a lamination plant, i.e., in the main. The trial production expenses, including wastages, would also stand to be capitalized, of which there is no reflection. In view of the foregoing, we therefore have no hesitation in upholding the inference of the additions to the machinery being put to use for less than 180 days during the relevant year and, thus, exigible to depreciation at 50% of the normal rate. The ld. CIT(A) stating that this is a non-issue as the assessee would in any case stand to avail depreciation from the year following, is neither here nor there. And, therefore, only needs to be stated to be rejected. Each year is an independent unit of assessment, and the fact in issue is if the relevant machinery had been put to use for the required period during the relevant previous year, so as to enable the assessee to its’ claim, as made, or is the same not in accordance with law. That is the only question that is required to be addressed, and the further question that if it was in fact put to use during the relevant year is admitted by both the parties. We decide accordingly, and the Revenue succeeds. - I.T.A. No. 8054/Mum/2010 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the creditors, their creditworthiness and genuineness of the transaction have not been established despite sufficient opportunities given. 4. We have heard the parties, and perused the material on record. The issue arising, thus, is if the materials as adduced by the assessee are adequate to prove the impugned credits, detailed as under, as to their nature and source, in terms of section 68 of the Act: Name No. of shares Amount (Rs.) (1) Companies (i) Saavi Packers Printers P. Ltd. 1,20,000 12,00,000 (2) Directors (i) Mr. Shanker Kashid [Director] 4,51,200 45,12,000 (ii) Mrs. Sharmila Kashid [wife] 1,900 19,000 (iii) M/s. Pushkaraj Corporation [Prop. Sharmila Kashid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of raising share capital from the public, or by way of private placement, filing the requisite details (viz. Prospectus or, as the case may be, Statement in lieu of Prospectus, etc.) with the concerned Registrar of Companies. Apart from exhibiting its genuineness, i.e., as a attempt to raise capital from the public following the due process of law, it serves to inform the proposed investor (shareholder) of the purpose for which the capital is being raised. The company can subsequently be questioned in its respect. Could the shares issued be regarded as so in its absence? Be that as it may, the shares being not marketable, and the investment thus not liquid, a person who is not a promoter, or a concern belonging to him, as, say, Pushkaraj Corporation P. Ltd., the proprietary concern of Sharmila Khasid, the promoters wife, would ordinarily have no reason to invest therein, being, rather, contrary to the normal, natural human behavior and conduct. They are after all parting with their funds as investors, in the hope of and on the premise of a prospective gain, and not as charity. The test of human probabilities is fully applicable to the proceedings under the Act (re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has satisfactorily explained the genuineness of the credit is principally a matter to be decided on the basis of the explanation/s furnished as regards the nature and source of the impugned credit/s (which in the present case stands credited to the share application money account), together with evidences led in support. That is, is a finding of fact . In other words, whether the burden of proof, which is on the assessee-recipient, the beneficiary, stands discharged or not is essentially a matter of fact. The tribunal as a final fact finding authority found it to be so in that case, endorsing the findings of the first appellate authority. The ld. CIT(A) in the present case has found that the assessee had furnished adequate materials, discharging the burden of proof on it, and that the AO had not made any enquiry falsifying the same. In our view, the material is grossly inadequate in the case of individuals, being without stating their incomes; social and educational background impinging on the genuineness of the credit; share application forms; bank accounts; financial capacity, some of whom are stated to be the assessee s employees, stated to having given cash to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any explanation about the nature and source of the cash credits or the explanation offered is not satisfactory, then the cash credit may be charged to income-tax as the income of the assessee of that previous year. Only after the assessee prima facie establishes these things, the onus shifts to the department, but where the assessee merely establishes the identity of the creditor and nothing more, the cash credits can be treated as the income of the assessee from undisclosed sources. [emphasis, ours] Unless the genuineness of the source of the sum of money found credited in the assessee s books is satisfactorily established, the assessee cannot be said to have discharged the requisite burden of proof placed on him u/s. 68. 5. The only other issue, agitated per its Ground 2 by the assessee, is with regard to the restriction of depreciation qua machinery installed during the first half of the relevant previous year to 50% of the normal depreciation on the ground of it being put to use for less than 180 days during the relevant previous year. The assessee s - on whom the burden of proof lies, case before us was that the machinery was put to trial production before 30.9.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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