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TMI Blog2015 (3) TMI 447X X X X Extracts X X X X X X X X Extracts X X X X ..... nce is in the shape of certificate granted by the bank who after getting inspection report from its officials has given the certificate to the assessee that new machinery was installed. Thus we reverse the order passed by Ld. CIT(A) and hold that the machinery installed by the assessee was new and as no other condition for grant of deduction under section 80 IB has been held to be violated by the assessee, the assessee is entitled to get deduction under section 80 IB. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... tively satisfied. Amount them, the clause (ii) provides for the condition that the industrial undertaking is not formed by the transfer of machinery or plant previously used for any purpose. As the deduction is claimed by the assessee, undoubtedly, the onus is on the assessee to provide the relevant basis facts, which are reliable and stand the test of the scrutiny. 9. Considering this legal position as well as the facts of the case,, for resolving the present dispute, we need to understand the following parties. They are: (i) the manufacturer or fabricator or supplier of the new machinery or plant; and (ii) the assessee, who purchased, installed and used the same for his business purposes. It is not clear from the facts of the case, if the alleged machinery or plant purchased is directly manufactured by the supplier or not. If the supplier is also a fabricator, he must be having a factory premises for fabrication and manufacture of the alleged machinery. So far as the suppiers are concern, it is fact that they are not non-existent, parties as their existence is confirmed by the third parties such as Sri Rajendhra J Shah and. Mehta Industrial Corporation. It is also a fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same is not the one previously used and the assessee has failed to produce the supplier before him for examination. Further it is relevant to mention that the initial onus is on the assesse to evidence that he has fulfilled the specified conditions by filing the relevant verifiable or credible information. Then, it is the duty of the AO to verify the veracity of the said details and information. In case the information so supplied is found unverifiable, the assessee has to co-operate with the AO in establishing the bona fide of the transactions. 12. In the light of the above, considering the non traceable supplier, we are of the opinion, that while the AO has not completed the investigation, the assesse has failed to discharge the onus to demonstrate that the assessee has fulfilled the conditions specified in clause (ii) above. The CIT (A) has missed to adjudicate the core issue of discharging of the onus in the impugned order. In the process, the relevant basic particulars such who designed & fabricated the alleged machinery, whether the said machinery is assessed to excise Duty and Sales tax how the said machinery is transported to the premises of the assessee, details of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 14-11-2006 from M/s. Manasi Trading Put. Ltd is enclosed for your ready reference which reconfirms that they have supplied new machinery to us. 2. Copy of the transport bill issued by Bright Transport Co is enclosed in support of the transportation of the machinery to our premises in Silvassa. 3. Copy of the installation certificate dated 04.10.2003 issued by M/s. Ronak Electronics. The said report confirms installation and wiring work of the machinery was completed on 03.10.2003. 4. Copy of the loading/unloading bill no. 158/04 dated 02.10.2003 issued by Vijay D Mishra (loading / unloading contractor). This bill confirms that the machinery was unloaded at our premises in Silvasá. 5. Copy of SSI registration certificate issued by Department of Industry, Dadra and Nagar Haveli U.T. The said certif1ate confirms that the permanent SSI registration was granted only after due verification of the requirement of the guidelines. It is further confirmed by them that the machineries as per Appendix -B are new machineries. Our claim that the new machinery was installed has been confirmed by the certificate issued by the Government department. 6. Copy of the Inspection report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urer, assessee could not prove the newness of machinery which can be verified by the date of manufacture of the machinery. The newness of machinery could not be established on this fact. 2. Whether the machinery is assessed to Excise duty and Sales tax. The asseee stated hat M/s.Manasi Trading Pvt. Ltd is a trading Company and not the manufacturer hence the excise registration number is not mentioned in the invoice. A copy of the 'C' form is also enclosed which confirms the machinery is assessed to sales tax. The assessee has furnished the Sales tax details of M/s. Manasi Trading Pvt. Ltd. along with copy of 'C' form issued by the assessee. In this name and address of the seller is not mentioned nor his registration no on the C form. ii. The assessee has stated that M/s. Manasi Trading Pvt. Ltd is a trader and hence excise duty is not applicable to them. Hence, on this fact, newness of machinery could not be established. 3. How the machinery Is transported to the Premises In this regard, vii. The assessee has furnished the transport bill issued by Bright Transport Co was enclosed in support of the transportation of the machinery to assessee's premises in Silvassa viii. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trading Pvt. Ltd. 2. Copy of lorry receipt for transportation of machinery to Silvassa. 3. Copy of bill for unloading and lifting of machine to the premises. 4. Copy of Installation certificate issued by the machine installer. 5. Copy of letter issued by the Bharat Co-op. Bank Ltd., regarding credit facility availed from them for new machineries purchased and payment made to suppliers. 6. Copy of Bank Statement in support of clearing of cheques in favour of Suppliers of new machineries. 7. Copy of SSI registration certificate issued by Dep. Of Industry, Dep. Of Industry, Dadra and Nagar Haveli, UT confirming the installation of new machineries in Appendix - B. 8. Copy of C form issued to the supplier of machinery M/s. Manasi as evidence of machinery assessed to sale tax. 9. Copy of Sales tax exemption certificate issued by Sales tax department of Dadra and Nagar Haveli, U.T, Silvassa. Kindly note that the Administration of Dadra and Nagar Haveli, U.T issues SSI registration and Sales Tax exemption certificate only after confirming the new industrial unit and installation of new machineries." 4.1 Ld. AR further referred to page 92 of the paper book, wherein vide letter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Officer, Ward 23(2)-4, Mumbai. 205-C-10, Pratyaksha Kar Bhavan, 2nd Floor, Bandra Kurla Complex, Bandra (East), Mumbai 400 051. Sir, SUB: Sanction of Term Loan towards purchase of New Machinery to Shri K.H.P. Shetty Proprietor of Siddharth Plastics) Ref: Your Letter No.ITO 23(2)-4/KHPS/2009-10 dated 07.12.2009. Kindly refer to the above We have received your above referred letter on 18th December, 2009, in this regard we have to state that before sanction of Term, Loan to Shri K.H.P. Shetty (Proprietor of Siddharth Plastics) Our officer have visited the factory premises situated at 24, Amli Indl. Estate-II, Plot at survey No.906/3, 66, K.V. Power Station Silvassa - 396 230. As per the procedure followed by the Bank, Our Officers have inspected the premises on 9th October 2003 and verified all the new machineries installed therein. The copy of the visit report is enclosed herewith for your perusal. We hope the above information will suffice your requirements. Thanking you, Sd/- Sr.Manager, Andheri (East) Branch." At page 116, copy of inspection report submitted by Sr. Manager of the Bank is filed and the contends of this letter are reproduced below: Date: 10th Oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , vide their certificate dated 23/2/2007. It has clearly described that certificate of permanent SSI Registration to the assessee was granted after due verification of the required guideline and the machinery installed by assessee is new machinery. Copies of such certificates have been filed at pages 95 to 109 of the paper book and also reproduced above. If it is the case of the Revenue that such certificate was wrong, then Revenue could examine the signatory of the said letter, who is General Manager, Department of Industries Center, Dadra & Nagar Haveli Silvasa. In the present case the Revenue has not done anything to prove that the certificate granted by Department of Industries was either incorrect or false. The relevant para of the said certificate is reproduced below. "Thus, the Certificate of Permanent SSI Registration to unit was granted after due verification of the requirement of the guideline. The Department therefore confirm that the machineries as per Appendix-B to the Certificate of Permanent SSI Registration are new Machineries. 6.1 The second evidence is in the shape of certificate granted by the bank, copy of which is filed at pages 115-116 of the paper book. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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