Smt. Parveen Bano,, Muzaffarnagar v. ACIT, Muzaffarnagar

ITA 3820/DEL/2009 | 2006-2007
Pronouncement Date: 16-09-2011 | Result: Dismissed

Appeal Details

RSA Number 382020114 RSA 2009
Assessee PAN ACCPB0600K
Bench Delhi
Appeal Number ITA 3820/DEL/2009
Duration Of Justice 2 year(s) 8 day(s)
Appellant Smt. Parveen Bano,, Muzaffarnagar
Respondent ACIT, Muzaffarnagar
Appeal Type Income Tax Appeal
Pronouncement Date 16-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 16-09-2011
Date Of Final Hearing 08-09-2011
Next Hearing Date 08-09-2011
Assessment Year 2006-2007
Appeal Filed On 07-09-2009
Judgment Text
ITA NOS. 3820-3821/DEL/2009 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C NEW DELHI BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 3820/DEL/2009 A.Y. : 2006-07 SMT. PRAVEEN BANO W/O SH. SAJID MIAN NASIR 786 YOGENDRA PURI MUZAFFARNAGAR-251 002 (PAN/GIR: ACCPB0600K) VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-2 MUZZAFARNAGAR I.T.A. NO. 3821/DEL/2009 A.Y. : 2006-07 SMT. ROSHAN ARA W/O SH. AMIR AHMAD KHAN 786/1/B YOGENDRA PURI MUZAFFARNAGAR-251 002 (PAN/GIR: ACCPB0600K) VS. ASSTT. COMMISSIONER OF INCOME TAX CIRCLE-2 MUZZAFARNAGAR (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. V.K. TULSIAN FCA & SH. A.K. MATHUR FCA DEPARTMENT BY : SH. SALIL MISHRA SR. D.R. ORDER ORDER ORDER ORDER PER BENCH PER BENCH PER BENCH PER BENCH BOTH THESE APPEALS ARE FILED BY THE ASSESSEES. THEY ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) DATED 9.7.2009 FOR THE ASSESSMENT YEA R 2006-07. ITA NOS. 3820-3821/DEL/2009 2 2. THE GROUNDS OF APPEAL IN BOTH THE APPEALS ARE I DENTICAL AND ARE IN RESPECT OF SUSTENANCE OF ADDITION OF ` 4 30 000/ - EACH IN THE HANDS OF BOTH THE ASSESSEES. 3. THE GROUNDS OF APPEAL READ AS UNDER:- (I) THAT THE LEARNED C.I.T.(APPEALS) MUZAFFARNAG AR WAS TOTALLY INCORRECT AND UNJUSTIFIED CONFIRMING THE ADDITION ` 4 30 000/- TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF DEPOSIT IN BANK ACCOUNT. THE AMOUNT DEPOSITED I S FULLY COVERED FROM THE CASH IN HAND AVAILABLE WITH THE ASS ESSEE APPELLANT. THE ADDITION OF ` 4 30 000/- HAS BEEN MAD E TOTALLY ON PRESUMPTION AND THEREFORE MAY PLEASE BE DELETED. (II) THAT THE ADDITION OF ` 4 30 000/- BY ASSESSIN G OFFICER AND FURTHER CONFIRMED BY THE LEARNED C.I.T. (APPEALS) IS HIGHLY ARBITRARY UNJUSTIFIED AND AGAINST THE FACTS OF THE CASE. THAT THE AUTHORITIES BELOW HAVE NOT PROPERLY CONSI DERED THE DOCUMENTARY EVIDENCES FILED IN SUPPORT OF ` 4 3 0 000/-. (III) THAT IN THE ALTERNATIVE ADDITION MADE IS HIGH LY EXCESSIVE. (IV) THAT THE INTEREST U/S 234A 234B AND 234C OF INCOME TAX ACT 1961 HAS WRONGLY BEEN CHARGED. (V) THAT THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND OR VARY FROM THE ABOVE FACTS/ GROUNDS OF APPEAL. 4. BOTH THE APPEALS WERE ARGUED TOGETHER BY BOTH TH E PARTIES. HENCE FOR THE SAKE OF CONVENIENCE BOTH THE APPEAL S ARE DISPOSED OF BY THIS COMMON ORDER. ITA NOS. 3820-3821/DEL/2009 3 5. THE FACTS OF THE CASE OF SMT. PRAVEEN BANO ARE D ISCUSSED IN DETAIL AND IT WAS THE CONTENTION OF BOTH THE PARTI ES THAT WHATEVER DECISION IS TAKEN IN THE HANDS OF SMT. PRAVEEN BA NOS CASE SHOULD BE APPLIED TO THE OTHER CASE AS THE FACTS ARE IDE NTICAL. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS IT W AS NOTICED BY THE ASSESSING OFFICER THAT THERE WAS A CREDIT OF ` 4 30 000/-. ASSESSING OFFICER CALLED FOR EXPLANATION WITH REGA RD TO CASH CREDIT FOUND IN THE ACCOUNT OF THE ASSESSEE. NO EXPLANAT ION WHATSOEVER PARTICULARLY WITH REGARD TO SUM OF ` 4 30 000/- W AS SUBMITTED. THEREFORE HE ADDED THE SAME AMOUNT TO THE INCOME OF THE ASSESSEE. IT IS MENTIONED BY THE ASSESSING OFFICER IN THE RE MAND REPORT THAT THE SOURCE OF AMOUNT OF ` 4 30 000/- IS NOT EXPLAINED F ROM THE COPY OF BANK ACCOUNT OR ANY OF THE RECORD FILED BY THE ASSE SSEE. THE ASSESSEE HAS ALSO NOT FILED SUPPORTING DOCUMENTS AND EVEN TH E CAPITAL ACCOUNT WAS FILED ON THE LAST DATE OF HEARING FOR REASONS KNOWN TO THE ASSESSEE. THUS IN THIS MANNER THE ASSESSING O FFICER MADE THE ADDITION. 7. FOR THE FIRST TIME BEFORE THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) IT WAS EXPLAINED BY THE ASSESSEE THAT TH E SAID DEPOSIT REPRESENTS ADVANCE RECEIVED BY HER AS A SALE CONSI DERATION OF HER LAND SITUATED AT VILLAGE VEHALNA PARGANA AND TEHSIL AND ZILA MUZZAFARNAGAR 2/3 PART OF KHASRA NOS. 940/M/2 RAKBAI 0.441 HECTARE OF 84/441 PART AND KHASRA NO. 938 M RAKBAI 0.287 HECTARE AND 939/1 RAKBAI 0.031 HECTARE AND 910/1 RAKBAI 0.686 HECTARE OF PART. IN SUPPORT OF SUCH CONTENTION THE ASSESSEE SUBMITTED THE CONFIRMATION AS WELL AS COPY OF THE AGREEMENT MADE BY BOTH THE ASSESSEES WITH TWO P ERSONS NAMELY S/SH. FARID AHMAD AND SALIM AHMAD S/O SHRI SAEED AHMA D KHAN R/O ITA NOS. 3820-3821/DEL/2009 4 V&PO GARHI ABDULLAH KHAN DISTRICT MUZZAFARNAGAR. COP Y OF SUCH AGREEMENTS HAVE BEEN FILED AT PAGES 30-32 OF THE P APER BOOK AND COPY OF CONFIRMATION IS FILED AT PAGE NO. 29 OF THE PAPER BOOK. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FORWARDED THESE EVIDENCES TO THE ASSESSING OFFICER FOR OBTAINING THE REMAND REP ORT. THE ASSESSING OFFICER FIRSTLY OBJECTED THE ADMITTANCE OF THESE DOC UMENTS ON THE GROUND THAT ASSESSEE WAS GIVEN REASONABLE AND SUFFI CIENT OPPORTUNITY TO EXPLAIN THE CREDIT OF ` 4 30 000/- AND ASSESSEE DID NOT AVAIL SUCH OPPORTUNITY AND NOW ASSESSEE CANNOT FILE ADDITIONAL EVIDENCE TO SUPPORT SUCH CLAIM. HOWEVER ASSESSING OFFICER EX AMINED ONE OF THE PERSONS WITH WHOM THE ASSESSEE HAS MADE AN AGREEMENT NAMELY SH. FARID AHMED AND COPY OF HIS STATEMENT IS FILED AT PA GES 11 TO 16 OF THE PAPER BOOK. IN THE STATEMENT HE STATED THAT HE HAD ENTERED INTO AN AGREEMENT WITH BOTH THE ASSESSEES ALONGWITH HIS BROTHER FOR PURCHASE OF AFORE-MENTIONED LAND FOR A TOTAL CONSIDE RATION OF ` 12.50 LACS AND TOTAL ADVANCE OF ` 8.60 LACS WAS GIVEN O N 18.4.2005. IT WAS SUBMITTED THAT HIS SOURCE OF INCOME IS AGRICULTURE A ND HE AND HIS BROTHER CULTIVATE LAND ABOUT 60 BIGHAS EACH. IT WA S STATED THAT FOR THE REASON OF LEGAL HINDRANCE THE DEAL COULD NOT BE MA TURED AND ADVANCE GIVEN BY US TO ROSHAN ARA AND PRAVEEN BANO IS STILL WITH THEM. AFTER RECORDING SUCH STATEMENT ASSESSING OFFICER HAS CRO SS EXAMINED THE SAID SHRI FARID AHMED AND SOME OF THE QUESTIONS ANSWE RS RELATING TO THAT CROSS EXAMINATION REVEALED THAT THE AGREEMENT EN TERED INTO BY HIM WITH BOTH THE ASSESSES WAS NOT REGISTERED. T HE LAND OWNED BY FARID AHMED WAS AT ABOUT 40 KM DISTANCE FROM THE LAND TO BE PURCHASED BY HIM. IN RESPONSE TO QUESTION ASKED BY THE AO WHY THE DEAL WAS NOT MATURED? HE STATED THAT REASON WAS TH AT THEY HAD NO ARRANGEMENT FOR MONEY AND THE SECOND REASON STATED B Y HIM WAS THAT ITA NOS. 3820-3821/DEL/2009 5 DEMARCATION OF LAND WAS NOT DONE. THEREFORE THEY DO NOT WANT TO ENTER INTO ANY CONTROVERSY. SH. FARID AHMED DENIED TO HAVE ANY BANK ACCOUNT AND STATED THAT HE OWNS A BAGH WHICH WAS GI VEN BY HIM FOR TWO YEARS ON LEASE AND THEY HAVE NOT TAKEN ANY LOA N FROM THE BANK AND THEY DO NOT HAVE ANY INCOME OTHER THAN AGRICULT URAL INCOME. HE DENIED TO HAVE ANY RELATIONSHIP WITH BOTH THE ASSE SSES AND STATED THAT THE DEAL WAS STRUCK THROUGH A DALAL AND HE DOES NOT REMEMBER THE NAME OF THE DALAL. IN RESPONSE TO THE QUESTION OF T HE AO THAT HOW MUCH INCOME HE EARNS FROM AGRICULTURE? HE STATED THAT HE HAD GIVEN HIS BAGH FOR TWO YEARS FROM WHERE HE GOT ` 8-8.5 L ACS. HE DID NOT REMEMBER THE NAMES OF THE WITNESSES BEFORE WHOM THE S AID AGREEMENT OF SALE WAS EXECUTED. IN RESPONSE TO QUES TION THAT WHETHER ANY LEGAL ACTION WAS TAKEN BY HIM FOR RECOVERY OF T HE ADVANCE GIVEN AS THE DEAL WAS NOT COMPLETE HE STATED THAT HE HAS NOT TAKEN ANY LEGAL ACTION AND HE IS KNOWING BOTH THE ASSESSES A ND THEY HAVE PROMISED TO RETURN THE SAID AMOUNT. 8. A COPY OF THE REMAND REPORT OF THE AO IS FILED A T PAGE NO. 22-25 OF THE PAPER BOOK. IT HAS BEEN MENTIONED EARLIER THA T AO FIRSTLY OBJECTED THE ADMISSION OF THE ADDITIONAL EVIDENCES AN D THEN HE DISBELIEVED THE CLAIM OF SHRI FARID AHMED ON THE GR OUND THAT THE SAME IS SELF-SERVING AND CANNOT BE RELIED UPON. HE SUBMI TTED THAT ADDITIONAL EVIDENCES FURNISHED IS AN AFTER THOUGHT. THE ASSESS EE FAILED TO PRODUCE THE OTHER PURCHASER SH. SALIM AHMED KHAN FOR CROSS EX AMINATION. THE REASONS STATED FOR NON-MATURITY OF THE DEAL WAS NOT TRUSTWORTHY AS 2/3 RD COST OF THE LAND WAS ALREADY PAID AS ADVANCE. NO EVIDENCE WHATSOEVER WAS PRODUCED WITH REGARD TO THE DISPUTE OF DEMARCATION OF LAND ON THE BASIS OF WHICH IT COULD STATED THAT THE REASON STATED WAS CORRECT. THE AGREEMENT IS CAMOUFLAGED TO GIVE COLOU R OF GENUINENESS ITA NOS. 3820-3821/DEL/2009 6 TO THE TRANSACTIONS. IT IS A FICTITIOUS TRANSACTI ON. IT HAS BEEN STATED THAT TRANSACTION DID NOT TAKE PLACE IT DID NOT CR OSS BEYOND THE STAGE OF THE AGREEMENT OF SALE. NO EVIDENCE WHATSOEVE R HAS BEEN FILED WITH REFERENCE TO THE DISPUTE IN RESPECT OF THE TRA NSACTION FOR WHICH IT COULD NOT BE EXECUTED. THERE IS NO EVIDENCE ON RE CORD TO SHOW THAT THE AMOUNT RECEIVED BY THE ASSESSEE WAS RETURNED TO SH. FARID AHMED OR ANY STEPS HAVE BEEN TAKEN FOR THE RECOVERY OF TH E SAID AMOUNT EVEN AFTER THE FOUR YEARS OF AGREEMENT. IN THIS MANNER THE AO OBJECTED TO THE EVIDENCE FILED BY THE ASSESSEE AND C ONCLUDED THAT THE ADDITION HAS RIGHTLY BEEN MADE. 9. CONSIDERING THE SUBMISSIONS OF THE ASSESSES IN L IGHT OF THE EVIDENCE PRODUCED BY THE ASSESSEE DURING THE COURS E OF APPELLATE PROCEEDINGS CIT (A) HAS SUSTAINED THE ADDITION. FIRSTLY HE HAS REJECTED THE CLAIM OF THE ASSESSEE REGARDING FILING OF THE ADDITIONAL EVIDENCES. HOWEVER HE HAS DECIDED IT ON MERITS EVEN AFTER CONSIDERING THE ADDITIONAL EVIDENCES. THE CIT(A) OBSERVED THE OTHER SO-CALLED PURCHASER SHRI SALIM AHMED WAS NOT PRODUCED FOR CROSS EXAMINATION. THOUGH IT WAS STATED BY THE ASSESSEE THAT HIS STATEMENT ON OATH ON BEHALF OF THE OTHER CREDITOR MAY ALSO BE RECORDED. HE PUT QUESTION MARKED ON THE BONAFIDE OF THE STATEMENT MADE BY SHRI FARID AHMED ON THE FOLLOWING GROUNDS :- (I) SH. FARID AHMED KHAN HAS STATED THAT THE SALE DEED COULD NOT EXECUTED DUE TO INSUFFICIENCY OF FUNDS AND ALSO THE LAND WAS NOT DEMARCATED. THE ABOVE CONTENTION IS NOT FOUND CONVINCING FIRSTLY FOR THE REASON THAT NO SANE PERSON WOULD PURCHASE SOMETHING WHICH IS BEYOND HIS MEANS ITA NOS. 3820-3821/DEL/2009 7 AND ADVANCE A SUM OF ` 4 30 000/-. SECONDLY THE PURCHASER IS BLINDLY ADVANCING A HUGE SUM WITHOUT EVEN KNOWING THE STATUS OF LAND VIZ. WHERE IT IS DEMARCATED OR NOT!! (II) THE DEPONENT HAS NOT BEEN ABLE TO TELL THE NAM E OF PERSON WHO MEDIATED BETWEEN THE ASSESSEE AND THE CREDITOR FOR PURCHASE OF LAND. FURTHER THE CREDITOR DOES NOT EVEN REMEMBER WHETHER THERE WAS ANY WITNESS FOR THE ALLEGED SALE AGREEMENT. (III) SH. FARID AHMED KHAN/ SH. SALIM AHMED KHAN HAVE SURPRISING MADE NO EFFORT AT ALL TO RETRIEVE THE SUM ADVANCED AT ` 8 60 000/- LONG TIME BACK FROM THE ASSESSEE!! 9.1 REFERRING TO THESE CIRCUMSTANCES LD. COMMISSIONE R OF INCOME TAX (APPEALS) OBSERVED THAT THE STATEMENT OF SHRI F ARID AHMED IS A SELF-SERVING STATEMENT AND IT CANNOT BE RELIED UPO N. THE AGREEMENT APPEARS TO BE A CAMOUFLAGED TO GIVE COLOUR OF GENUI NENESS WHICH OTHERWISE APPEARS TO BE FICTITIOUS TRANSACTION. THE CIT(A) HAS FURTHER CONCLUDED THAT HE HAS NO DOUBT THAT IN THE GIVEN FA CTS AND CIRCUMSTANCES OF THE CASE IT IS CLEAR THAT A SUM OF ` 4.30 LACS WAS RECEIVED AND CLAIMED AS ADVANCE RECEIVED AGAINST AN AGREEMENT OF SALE OF LAND FROM SHRI FARID AHMED AND SH. SALIM A HMED IS NOT REPRESENTING GENUINE ENTRY BUT RATHER IT REPRESENT S CONCOCTED /SHAM TRANSACTION MERELY WITH THE PURPOSE OF ROUTING ASS ESSES UNDISCLOSED INCOME INTO HER BOOKS. THE DOCUMENTARY EVIDENCE LIKE CONFIRMATION LETTER AGREEMENT FOR SALE OF LAND AND STATEMENT OF FARID AHMED ITA NOS. 3820-3821/DEL/2009 8 RECORDED ON BEHALF OF SHRI SALIM AHMED LOOSE THEI R VALUE AS THEY HAVE BEEN CREATED ON PAPER TO LENT THE SEMBLANCE OF GENUINENESS REGARDING IDENTITY AND CREDITWORTHINESS OF THESE EN TRY GIVERS AND SUCH ENTRY HAS TO BE TREATED AS UNEXPLAINED AND CORRESPO NDING AMOUNT IS TO BE ADDED TO THE ASSESSES INCOME U/S. 68 OF THE IT ACT. IN THIS MANNER CIT UPHELD THE ADDITION. 10. THE ASSESSEE IS AGGRIEVED. 11. AFTER NARRATING THE FACTS IT WAS VEHEMENTLY P LEADED BY THE LD. A.R. THAT IN VIEW OF THE EVIDENCE FILED BY THE ASS ESSEE BEFORE THE CIT(A) THE ASSESSEE HAS DISCHARGED THE PRIMARY ONUS . IN THE ABSENCE OF ANY MATERIAL BROUGHT ON RECORD BY THE REVENUE AG AINST SUCH EVIDENCE ADDITION COULD NOT BE SUSTAINED U/S 68. THEREFORE GIVING EMPHASIS TO THE CROSS EXAMINATION DONE BY THE AO OF S HRI FARID AHMED IT WAS SUBMITTED BY HIM THAT HE ADMITTED THAT HE HAD ADVANCED THE SAID AMOUNT AND HAVING ADMITTED SO THE AMOUNT TAKEN BY THE ASSESSEE FROM HIM CANNOT IN ANY CIRCUMSTANCES BE CONSIDERED AS UNEXPLAINED CASH CREDIT IN THE HANDS OF THE ASSE SSEE. 11.1 ON THE OTHER HAND RELYING UPON THE FINDINGS O F THE CIT(A) IT IS THE CASE OF THE LD. D.R. THAT ADDITION HAS RIGHTLY BEEN SUSTAINED IN THE HANDS OF BOTH THE ASSESSES AND THE ORDER OF TH E CIT(A) SHOULD BE CONFIRMED. 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTI ONS IN LIGHT OF THE MATERIAL PLACED BEFORE US. THE REASONS UPON WHICH T HE CIT(A) HAS SUSTAINED THE ADDITION HAVE ALREADY BEEN REPRODU CED IN THE ABOVE PART OF THIS ORDER. THE FIRST REASON FOR WHICH C IT(A) HAS DOUBTED THE TRANSACTION IS THAT THERE WAS FALSITY IN THE CLAIM OF SH. FARID AHMED THAT SALE COULD NOT BE TAKEN PLACE DUE TO INSUFFICI ENCY OF FUNDS AND ITA NOS. 3820-3821/DEL/2009 9 ALSO FOR THE REASONS THAT LAND WAS NOT DEMARCATED. SUCH STATEMENT OF SHRI FARID AHMED HAS NOT BEEN FOUND CORRECT BY THE C IT(A) FIRSTLY ON THE GROUND THAT NO INSANE PERSON WOULD PURCHASE A L AND WHICH IS BEYOND HIS MEANS AND ADVANCE A SUM OF ` 4.30 LACS. S ECONDLY FOR THE REASON THAT THE PURCHASER IS BLINDLY ADVANCING A H UGE SUM WITHOUT EVEN KNOWING THE STATUS OF LAND VIZ. WHETHER IT IS DEMARCATED OR NOT. WE FIND FORCE IN SUCH FACTS RECORDED BY THE CIT(A). THE TOTAL AMOUNT FOR THE LAND WAS TO BE SOLD WAS AGREED AT A SUM OF ` 12.50 LACS. THE ADVANCE CLAIMED TO BE GIVEN BY THE AFORE-MENTIONED AGREEMENT ENTERED INTO ON 18.4.2005 IS A SUM OF ` 8.60 LACS WH ICH IS 68.8% OF THE TOTAL AMOUNT. THUS A SUBSTANTIAL PART OF THE TO TAL SALE CONSIDERATION HAS ALREADY BEEN ADVANCED AND WHAT REMAINED WAS A PA LTRY SUM OF ` 3.90 LACS. EVEN ACCORDING TO THE STATEMENT GIVEN B Y SHRI FARID AHMED HIS FINANCIAL CAPACITY CANNOT BE DOUBTED AS HE WAS HAVING THE AGRICULTURAL INCOME IN THE RANGE OF MORE THAN ` 8 LA CS. NO MATERIAL WHATSOEVER HAS BEEN BROUGHT ON RECORD TO SHOW THAT THERE WAS ANY FINANCIAL CONSTRAINT FACED BY SHRI FARID AHMED FOR WHICH THE BALANCE COULD NOT BE PAID. THE PERIOD FIXED FOR GETTING THE TITLE DEED REGISTERED WAS ONE YEAR FROM 18.4.2005. NORMALLY IF ONE CANNOT MAKE THE ARRANGEMENT OF BALANCE PAYMENT THE DATE WIL L GET EXTENDED WITH THE MUTUAL CONSENT OF THE PARTIES IF THE PARTI ES ARE IN GOOD TERMS. NO EVIDENCE WHATSOEVER HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE SAID TIME WAS EVER EXTENDED WITH THE MUTUAL CONSENT OF THE PARTIES AS IT IS NOT EVEN THIS CASE OF THE ASSESSEE THAT SHE DOES NOT HAVE GOOD RELATION WITH OTHER PARTIES. THEREFORE WE FIND N O REASON TO INTERFERE WITH THE FINDINGS RECORDED BY THE CIT(A) THAT INSUF FICIENCY OF FUNDS AS STATED BY SHRI FARID AHMED CANNOT BE THE REASON FO R NON-MATURITY OF THE DEAL. SIMILARLY IN THE POSITION OF DEMARCATI ON OF LAND NO MATERIAL ITA NOS. 3820-3821/DEL/2009 10 HAS BEEN BROUGHT ON RECORD TO SHOW THAT ONLY FOR TH AT REASON THE DEAL COULD NOT FINALIZED. 13. THE SECOND REASON STATED BY THE CIT(A) IS THAT SHRI FARID AHMED COULD NOT TELL THE NAME OF THE PERSON WHO MEDIATED F OR THE DEAL OF THE ASSESSEE. THIS REASON IS ALSO TRUE THAT IF ANYBODY HAS PAID THE SUBSTANTIAL SUM OF AMOUNT FOR A DEAL LIKE IN THE PRE SENT CASE CERTAINLY HE WILL REMEMBER THE NAME OF THE PERSON WHO HAS HELPE D IN STRIKING THE SAID DEAL. THE OTHER REASON STATED BY THE CIT( A) IS THAT IT IS SURPRISING THAT THE SAID SH. FARID AHMED AND SH. SA LIM AHMED HAVE MADE NO EFFORT AT ALL TO RETRIEVE THE ADVANCE OF ` 8 .60 LACS FOR SUCH A LONG TIME. THIS REASON STATED BY THE CIT(A) IS ALS O TRUE. IF THE DEAL IS NOT FINALIZED FOR THE FAULT OF THE SELLER OF THE LA ND THEN ANY PRUDENT PURCHASER WILL ATLEAST PUT-FORWARD HIS CLAIM OF RE FUND OF THE ADVANCE. IT IS A MATTER OF RECORD THAT NO AMOUNT HAS BEEN REFU NDED BY BOTH THESE ASSESSES TO SHRI FARID AHMED/ SH. SALIM AHMED AND NO EVIDENCE HAS BEEN BROUGHT ON RECORD THAT ANY EFFORT WAS MADE BY BOTH OF THEM TO GET RECOVERY OF THE SAID AMOUNT FROM BOTH THE AS SESSES. THEREFORE IN OUR OPINION CIT(A) HAS RIGHTLY CONCL UDED THAT ASSESSEE COULD NOT EXPLAIN THE AMOUNT OF ` 4.30 LACS RECEIVED BY EACH OF THEM. WE MAY ADD HERE THAT NO PRUDENT MAN WHO HAS PAID SO MUCH HUGE AMOUNT AS ADVANCED WILL COOPERATE WITH A PERSON WHO HAS RETAINED HIS MONEY FOR SUCH A LONG PERIOD WITHOUT ANY GOOD RE ASON AND THEN TO APPEAR ON BEHALF OF THAT PERSON AND ADMIT THAT HE HA S MADE THIS ADVANCE. ANY PRUDENT MAN FIRST WILL ASK THE SAID P ERSONS TO REFUND HIS MONEY AND THEN ONLY HE MAY DEPOSE THAT HE HAD ADVANC ED SUCH AMOUNT. THEREFORE ALSO THE CONCLUSION ARRIVED AT B Y THE CIT(A) APPEARS TO BE CORRECT AND HENCE WE FIND NO REASON TO DIFFER WITH THE FINDINGS RECORDED BY THE CIT(A) DESPITE THE FACT T HAT STATEMENT OF SHRI ITA NOS. 3820-3821/DEL/2009 11 FARID AHMED WAS RECORDED BY THE DEPARTMENT AND HE WA S ALSO CROSS EXAMINED BY THE DEPARTMENT. THE CASE LAWS REFERRED BY LD. COUNSEL OF THE ASSESSEE ARE DISTINGUISHABLE ON THE FACTS OF TH E CASE HENCE NOT APPLICABLE. 14. IN THE RESULT BOTH THE APPEALS FILED BY THE AS SESSES STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/09/2011. SD/- SD/- [ [[ [I.P. BANSAL I.P. BANSAL I.P. BANSAL I.P. BANSAL] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 16/9/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT DELHI BENCHES