TaxTMI 
TaxTMI 
2014 (7) TMI 295
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....2008. 2. The issue arising in the present case is the maintainability in law of section 68 of the Act in the facts and circumstances of the case. 3. The law in the matter is well settled, so that a cash credit appearing in the assessee's books of account has to be proved as to its nature and source, failing which, section 68, which is a rule of evidence, deeming the amount credited as the assessee's unexplained income for the relevant year, may stand attracted. Further, that the burden of proof has to be discharged on the parameters of identity and creditworthiness of the creditor, and the genuineness of the credit transaction. The issue is thus primarily factual, so that it is required to be determined in each case whether the burden....
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....all and furnish the same (PB pgs. 108-110). The tribunal, vide its order dated 16.01.2008 (in ITA No. 381/Mum/2007 / copy on record), restored the matter back to the file of the Assessing Officer (A.O.), with a view to allow thus an opportunity to assessee to prove the contents of the affidavit before the assessing authority; its' specific directions being as: '5. We have heard rival submissions and considered them carefully. The only controversy before us is that whether the sale consideration received by the assessee on account of scrap sale was in fact is out of sale of scrap or had the assessee adduced its own money under the garb of sale of scrap. The affidavit of Shri Dinesh Sharma who was one of the partners of assessee's firm whi....
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....hich its' claim was again considered as unsubstantiated. It's claim that the entire transaction was managed by one, Shri Kadam, who acted as a conduit and the link between the assessee and the scrap dealers, the buyers of machineries, did not find favour with the Revenue authorities in the absence of any direct or even any corroborating proof as to the sale of the machineries. Aggrieved, the assessee in the second appeal. 5. Before us, the assessee's case rested on the inapplicability of section 68 in the facts & circumstances of the case. Two, even if the addition is made under section 68, it would still be assessable as business income, which is precisely what the assessee had done, reflecting it as income, though had reduced it from t....
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....he contrary, not to speak of its description or specification in some detail, there is as afore-noted no whisper of any plant & machinery in the said agreement, which is inexplicable. Lest one may argue of it being an omission (which though cannot be lightly inferred) or of little consequence, it needs to be appreciated that its value constitutes about 17% of the contract value and, in fact, a much higher % age thereof when reckoned upon excluding the land value comprised therein; the land value - a constant - and the others clearly forming two distinct and separable parts of the agreement. The seller cannot but be conscious of its value, so that the same can only be considered to have been taken into account in arriving at the contract val....
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....assessee's explanation of having sold the same, while its existence is itself highly suspect and at best shrouded in mystery or, simply put, totally unproved. This also explains the nonproduction of either the scrap dealers, the buyers of plant & machinery, or even confirmations there-from. 6.2 Looked at from any angle, therefore, the assessee's claim fails. In fact, on such questions/observations, i.e., as afore-noted, being made by the Bench during hearing, the ld.AR would submit that he does not seriously dispute the application of s. 68 per se, and that the main plank of his argument is that, even so, the said income is assessable as 'business income' and not as 'income from other sources', so that no adjustment to the returned incom....
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....d, i.e., income from other sources. Accordingly, we find no merit in the assessee's said contention as well. The decisions cited supra in this regard, being rendered in the facts & circumstances of those cases, as does the present case, stand to be or would be of little assistance to the assessee. It may be pertinent to note that the Revenue, while assessing an income under section 68, is under no further obligation to exhibit the source thereof (refer: CIT vs. Manick Sons [1969] 74 ITR 1 (SC); CIT vs. Devi Prasad Vishwanath [1969] 72 ITR 194 (SC)). Further, even as observed during the course of hearing itself, even the assessment of the said income, brought to tax u/s. 68, as business income u/s. 28, would be of no consequence inasmuch as ....