TaxTMI 
TaxTMI 
2012 (11) TMI 627
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.... to the income of the assessee u/s 68 of the Act. 3. On appeal before the ld. CIT(A) it was submitted that the assessee had entered into an agreement with Shri Bakhtawar Singh to sell his godown at village Pabhat. The agreement was entered on 10.4.2007 for total consideration of Rs. 35.00 lakhs. A sum of Rs. 15.00 lakhs received as advance. However, the deal could not be materialized due to various unavoidable circumstances at the end of purchaser as well as the seller and therefore, the same was cancelled and advance was returned into two installments of Rs. 10.00 lakhs on 24.3.2008 and Rs. 5.00 lakhs on 26.3.2008. In this regard a copy of ledger, copy of agreement to sell, copy of cancellation agreement and affidavit of the purchaser were enclosed. 4. The ld. CIT(A) forwarded the same for remand report because this evidence has not been filed before the Assessing Officer. The Assessing Officer in his remand report stated as under:- "2.3 In order to verify the contention of the assessee, summons u/s 131 were issued to the purchaser Shri Bakhtawar Singh son of Shri Gurdas Ram r/o Village Kalwan, Tehsil Anandpur Sahib. His statement was recorded on oath. In the statement....
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.... to the prospective buyer and he appeared before the Assessing Officer and admitted that he has entered into an agreement for purchase of property and paid a sum of Rs. 15.00 lakhs in cash as advance on 10.4.2007. The prospective buyer had also confirmed the cancellation of the deal and had also explained the sources of funds. It was further submitted that the Assessing Officer has herself confirmed the fact of identity and genuineness of the transaction and the only objection raised by her is regarding the credit worthiness. Since all the evidences have been produced the assessee could not have been asked to explain the source in the hands of the purchaser. 6. The ld. CIT(A) agreed with the submissions and deleted the addition. 7. Before us, the ld. DR for the revenue submitted that first of all no evidence regarding the sale of the property was furnished before the Assessing Officer. Further when this evidence was produced before the ld. CIT(A), the same was sent to the Assessing Officer for remand report and during the remand proceedings prospective buyer could not explain the source of funds satisfactorily. For example it was stated that some money was being sent as remit....
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....eard the rival submissions carefully and agree with the submissions of the ld. counsel of the assessee. Firstly all details were filed by a letter, copy of which is placed at page 12 to 15 of the paper book. Para 5 of the same reads as under:- "The assessee received advance of Rs. 15.00 lakhs towards the sale of his property. The deal could not materialize and the assessee had to refund this amount. Copy of ledger account of a dvance is enclosed. The property in question was a Godwn at Zirakpur (17 Marlas). It was agreed to be sold to Shri Bakhtawar Singh son of Shri Gudras Ram r/o H No. 172, Village Kalwan, Tehsil Anandpur Sahib, Distt. Ropar. The assessee is not in direct touch with that party as the agreement was cancelled and all documents were retained by hi. For filing of confirmation from that party, fresh opportunity of about 5 days may be allowed. However, verification from that person may be made." Thus it is clear that the details of the property and particulars of the prospective buyer were filed before the Assessing Officer and the Assessing Officer was requested to given sometime to verify the facts from Shri Bakhtawar Singh. In any case when these particular....
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....perverse in the sense that no man instructed properly in law could have acted as the Tribunal did and whether there was ignoring of material and relevant facts in considering this aspect arose out of the order of the Tribunal. Ignoring the point as to who made the donations and what was their capacity to make the donations which was a vital fact, gave rise to the question of law." 10. From above it is clear that lot of material was gathered by the Revenue to show that the Trust was not genuine and the cash was kept with Maharaja of Sonepur for about a decade without interest which was not found to be plausible. Thus it is clear that this case is totally distinguishable. The theory of casting of burden to prove the sources of source may not be applicable in case of cash creditor where it can be shown that creditor has deposited the cash in his bank account and given loan to a particular person because it can be argued that such person may have given the cash but this theory cannot be applied in case of sale purchase transaction of the property because no person would give the money to other person to show the same as being received back as advance particularly after the execution....