Swarn Singh, Patiala V. ITO, Patiala

ITA 97/CHANDI/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8330 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-03-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 22-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJEET SINGH
• Assessee Lawyers: RAKESH JAIN; HARJEET SINGH
• Keywords: Salary income; Onus to prove
• Section: 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 97/CHD/2014 ASSESSMENT YEAR: 2009-10 SHRI SWARN SINGH, VS THE ITO, #4-F,MODEL TOWN, WARD 6, PATIALA. PATIALA. PAN: ADYPS3204R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARJEET SINGH & SHRI RAKESH JAIN RESPONDENT BY : SHRI MANJEET SINGH, DR DATE OF HEARING : 28.03.2016 DATE OF PRONOUNCEMENT : 30.03.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST T HE ORDER OF LD. CIT(APPEALS) PATIALA DATED 20.11.2013 FOR ASSESSMENT YEAR 2009-10 CHALLENGING THE ADDITIONS O F RS. 23 LACS, RS. 5 LACS AND RS. 50,000/- ON ACCOUNT OF UNEXPLAINED DEPOSIT IN THE BANK ACCOUNTS. 2. THE BRIEF FACTS OF THE CASE ARE THAT THERE WERE CERTAIN CASH DEPOSITS IN THE SAVING BANK ACCOUNT OF THE ASSESSEE. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE CONTENDED THAT HE RECEIVED CASH ON ACCOUNT TO SALE A PLOT NO. 9 AT BHOGLA ROAD, RAJPURA TOWN AND ON ACCOUNT OF SALE OF SHOP NO. 2 IN VILLAGE CHHURA. REGARDING THE AGREEMENT TO SALE OF PLOT NO. 9, IT WAS 2 CONTENDED THAT THE ASSESSEE RECEIVED RS. 9,50,000/- ON 29.01.2009 AND RS. 13.50 LACS ON 02.02.2009 FROM SH RI SANJAY KUMAR, SHRI HARBILAS AND SHRI SHRI SUBHASH KUMAR. THE CASH WAS DEPOSITED ON THE SAME DATE IN THE BANK. HOWEVER, AS THE DEAL COULD NOT MATURE, THE AGREEMENT TO SALE WAS CANCELLED AND THE ASSESSES RE PAID RS.12,00,000/- ON 02.03.2009 AND THE BALANCE AMOUNT WAS REPAID IN A.Y. 2011-12. IN THIS CONNECTION, THE A.O. NOTED THAT THE APPELLANT COULD NOT PRODUCE THE ORIG INAL AGREEMENTS TO SALE. THE ASSESSEE WAS ASKED TO FURNI SH COMPLETE ADDRESSES OF S/SH. SANJAY KUMAR, HARBILAS & SUBHASH KUMAR. THE ASSESSEE ONLY FURNISHED ADDRESS OF SH. SUBHASH KUMAR AND CONTENDED THAT SH. SUBHASH KUMAR WILL PRODUCE THE TWO PERSONS. SUMMONS U/S 131 OF INCOME TAX ACT, 1961 WAS ISSUED TO SH. SUBHASH KUMAR WHO IS AN INCOME TAX ASSESSEE. HE ADMITTED TH AT HE MADE AN AGREEMENT ALONG WITH TWO OTHER PERSONS F OR THE PURCHASE OF THE PLOTS FOR RS. 30 LAKHS. REGARDI NG THE SOURCE OF MONEY, IT WAS CONTENDED THAT HE HAS RECEIVED CASH ON ACCOUNT OF AGREEMENT TO SALE OF HI S OWN HOUSE IN RAJPURA AND RECEIVED RS.8 LAKHS. HOWEVER, HE COULD NEITHER PRODUCE THE AGREEMENT TO SALE OF HIS HOUSE AND ALSO COULD NOT FURNISH THE NAME AND ADDRE SS OF THE PERSON WITH WHOM THE AGREEMENT TO SALE OF HI S HOUSE WAS MADE. IT ALSO TRANSPIRED THAT THE HOUSE W AS NEVER SOLD. HE DENIED HAVING THE KNOWLEDGE OF WHERE ABOUT AND OTHER TWO PERSONS NAMELY SH. SANJAY AND HARBILAS WHO WERE ALSO PARTY TO THE AGREEMENT FOR 3 PURCHASE OF THE PLOT. THEREAFTER, SUMMONS U/S 131 W ERE SENT TO SH. SANJAY KUMAR AND SH. HARBILAS AS PER TH E ADDRESS GIVEN IN THE COPY OF AGREEMENT TO SALE OF P LOT. THE SUMMONS WERE RECEIVED BACK IN THE OFFICE IN THE CASE OF SANJAY KUMAR WITH THE NOTE THAT NO SUCH PER SON IS FOUND AT THE GIVEN ADDRESS. SIMILARLY SUMMONS WE RE RECEIVED BACK IN THE CASE OF SH. HARBILAS WITH THE POSTAL REMARK THAT THE FATHER'S NAME IS NOT CORRECT. THE ASSESSEE WAS GIVEN A FINAL OPPORTUNITY TO PRODUCE T HE PERSONS HOWEVER HE FAILED TO PRODUCE THE PERSONS CONCERNED. THE A.O., THEREFORE, HELD THAT THE ENTIR E STORY IS A CONCOCTED ONE. THE COPIES OF AGREEMENT A RE NOT ON JUDICIAL PAPERS ALSO. IT IS ALSO NOT UNDERST OOD AS TO WHY THE PERSONS WILL KEEP A SUBSTANTIAL AMOUNT O F MONEY WITH HIMSELF DESPITE CANCELLATION OF THE AGREEMENTS DESPITE THE PROVISION IN THE AGREEMENT T O SALE TO RETURN THE MONEY BY 30.06.2010. 2(I) SIMILARLY, IN CASE OF SHOP NO.2, THE ASSESSE E CONTENDED THAT THE AGREEMENT TO SALE WAS MADE WITH ONE SH. BHOOP NARAYAN FROM WHOM 5 LAKHS HAVE BEEN RECEIVED AS ADVANCE. SUMMON U/S 131 WAS ISSUED TO SHRI BHOOP NARAYAN AND HIS STATEMENT WAS RECORDED. HE AGREED THAT AN AGREEMENT WAS MADE FOR PURCHASE O F THE SHOP FOR RS.6 LAKHS. REGARDING THE SOURCE OF MO NEY, IT WAS SUBMITTED THAT RS. 1,50,000/-HAS BEEN GIVEN OUT OF HIS PAST SAVINGS RS.2,50,000/- WAS RECEIVED FROM HIS FATHER AND RS.1,00,000/- WAS RECEIVED FROM HIS BROT HERS 4 IN LAW. IT WAS NOTED THAT THE BROTHERS-IN-LAW NAMEL Y SH. SURESH KUMAR AND RAKESH KUMAR WERE DRAWING A MEAGER SALARY OF RS.8,000/- AND 7,000/-PER MONTH RESPECTIVELY AND, THEREFORE, THE A.O. DIDN'T ACCEPT THE CONTENTION THAT BOTH OF THEM HAS ADVANCED RS. 50,00 0/- EACH OUT OF THEIR PAST SAVINGS. REGARDING HIS FATHE R'S FINANCIAL POSITION, IT WAS CONTENDED THAT HE WAS HA VING INCOME FROM 6 ACRES OF AGRICULTURAL LAND. HOWEVER, NO EVIDENCE REGARDING OWNER-SHIP OF THE AGRICULTURAL L AND HAS BEEN FURNISHED NEITHER THE PROOF REGARDING HIS IDENTITY WAS GIVEN. REGARDING SH. BHOOP NARAYAN HIMSELF, IT WAS SEEN THAT HIS TOTAL EARNING IS RS.7 ,000/- TO 8,000/-PER MONTH AND KEEPING INTO VIEW THE SIZE OF HIS FAMILY, THE A.O. HELD THAT IT IS NOT POSSIBLE F OR HIM TO SAVE RS.1,50,000/- AFTER MEETING THE HOUSEHOLD EXPENSES. THE A.O., THEREFORE, ADDED RS.23,00,000/- ANDRS.5,00,000/- TO THE INCOME OF THE APPELLANT. 2(II) SIMILARLY, THE A.O. DETECTED THAT THERE WAS A CASH DEPOSIT ENTRY OF RS.50,000/- IN THE BANK A/C OF THE APPELLANT FOR WHICH NO EXPLANATION WAS FURNISHED BY THE APPELLANT. THE APPELLANT HAS ALSO RECEIVED INTEREST OF RS.22,317//- IN THE BANK ACCOUNTS WHICH IS NOT SHOW N IN THE RETURNED INCOME. THE A.O., THEREFORE, ADDED THESE AMOUNTS ALSO TO THE INCOME SHOWN. 3. THE ASSESSEE CHALLENGED ALL THE THREE ADDITIONS BEFORE LD. CIT(APPEALS) AND SUBMISSIONS OF THE ASSE SSEE ARE REPRODUCED IN THE APPELLATE ORDER IN WHICH THE 5 ASSESSEE BRIEFLY EXPLAINED THAT ASSESSEE MAINTAINED BANK ACCOUNT WITH PUNJAB NATIONAL BANK, PATIALA JOI NTLY WITH HIS WIFE. THE ASSESSEE DEPOSITED RS. 1,50,000 /- LACS IN THE BANK ACCOUNT ON 11.06.2008, AND RS. 3,50,000/- ON 02.09.2008. DURING THE ASSESSMENT PROCEEDINGS, IT WAS EXPLAINED THAT AMOUNT DEPOSITED REPRESENTS ADVANCE RECEIVED AGAINST AGREEMENT TO SE LL SHOP NO. 2 AT VILLAGE CHOURA TO SHRI BHOOP NARAIN, PATIALA. FURTHER, IT WAS EXPLAINED THAT DEAL WAS S ETTLED FOR RS. 6 LACS BUT ASSESSEE RECEIVED THE ADVANCE OF RS. 5 LACS ON DIFFERENT DATES. IT WAS POINTED OUT THAT S HRI BHOOP NARAIN WAS SUMMONED AND HIS STATEMENT WAS RECORDED BY ASSESSING OFFICER IN WHICH HE HAS ADMIT TED THE FACT OF ENTERING INTO AGREEMENT WITH ASSESSEE A ND GIVING OF THE ADVANCE. THE ASSESSEE, THEREFORE, PR OVED THE SOURCE OF THE ADVANCE RECEIVED. COPY OF THE RE TURN FILED BY SHRI BHOOP NARAIN ALONGWITH CONFIRMATION O F HIS BROTHER-IN-LAWS SHRI RAKESH KUMAR AND SHRI SURESH KUMAR WERE FURNISHED. THE ASSESSING OFFICER DID NO T ACCEPT THE EXPLANATION OF THE ASSESSEE FOR DEPOSIT OF RS. 5 LACS BECAUSE TRANSACTION WAS NOT MADE THROUGH BANKING CHANNEL AND GENUINENESS OF THE SOURCE OF DEPOSIT WAS NOT PROVED. THE ASSESSEE PRODUCED COPY OF THE AGREEMENT AND THE PERSON WHO HAS GIVEN ADVANCE TO THE ASSESSEE, THEREFORE, ONUS UPON ASSESSEE HAVE BE EN DISCHARGED. 6 3(I) AS REGARDS THE ADDITION OF RS. 23 LACS IN RESP ECT OF DEPOSIT MADE IN THE SAVING BANK ACCOUNT IN PUNJAB NATIONAL BANK, RAJPURA, IT WAS EXPLAINED THAT ASSES SEE ENTERED INTO AGREEMENT TO SELL OF PLOT NO. 9 AT BHO GLA ROAD, RAJPURA TOWN, PATIALA WITH SHRI SUBHASH KUMAR , SHRI SANJAY KUMAR AND SHRI HARBILAS. COPY OF THE AGREEMENT WAS PLACED ON RECORD. THEY HAVE GIVEN ADVANCE AGAINST THE AGREEMENT TO SELL ON 29.01.2009 IN A SUM OF RS. 9,50,000/- AND ON 02.02.2009 A SUM OF RS. 13,50,000/-. SHRI SUBHASH KUMAR APPEARED BEFORE ASSESSING OFFICER AND HIS STATEMENT WAS RECORDED IN WHICH HE HAS CONFIRMED ENTERING INTO AGREEMENT TO S ELL. HOWEVER, HIS STATEMENT WAS NOT BELIEVED BECAUSE ORIGINAL AGREEMENT TO SELL OF THE PLOT WAS NOT PROD UCED. PAYMENT WAS NOT MADE THROUGH BANKING CHANNEL AND SHRI SUBHASH KUMAR COULD NOT INFORM THE NAME OF THE PERSONS WITH WHOM HE HAD AN AGREEMENT TO SELL HIS HOUSE AND FURTHER AGREEMENTS WERE NOT ON JUDICIAL PAPERS. IT WAS SUBMITTED THAT ASSESSING OFFICER WA S NOT JUSTIFIED IN MAKING THIS ADDITION BECAUSE IT IS A K NOWN FACT THAT AFTER MATURITY, THE AGREEMENTS ARE CANCEL LED OR DESTROYED AND THERE IS NO BAR IN MAKING CASH PAYMEN T. SHRI SUBHASH KUMAR IN HIS STATEMENT EXPLAINED HIS SOURCE. IT IS ALSO NOT NECESSARY THAT AGREEMENT SH OULD BE REPRODUCED ON JUDICIAL PAPER. 4. THE LD. CIT(APPEALS), HOWEVER, DID NOT ACCEPT CONTENTIONS OF THE ASSESSEE AND CONFIRMED ALL THE T HREE 7 ADDITIONS. HIS FINDINGS IN PARA 4.2 AND 5 ARE REPRODUCED AS UNDER : I HAVE CONSIDERED THE SUBMISSIONS MADE. THE ISSUE REGARDING THE DEPOSITS IN THE BANK ACCOUNTS HAVE BE EN DISCUSSED IN DETAILS ABOVE. LOOKING INTO THE FACTS O F THE CASE, IT IS IMPROBABLE THAT THE ADVANCES WERE RECEIVED BY T HE APPELLANT FROM THE ALLEGED PERSONS. THE AGREEMENT T O SALE WERE ON PLAIN PAPER AND ARE NEVER EXECUTED. THE ADVANCES ALLEGED TO HAVE BEEN RECEIVED FROM SHRI SUBH ASH KUMAR, HARBILASH AND SANJAY KUMAR HAS NOT BEEN RETUR NED BACK IN FULL EVEN AFTER THE CANCELLATION OF THE SAI D AGREEMENT AND IS SAID TO BE REPAID MUCH LATER. TWO OF THE PER SONS ARE NOT TRACEABLE AT THE ADDRESSES GIVEN IN THE AGREEME NT TO SALE. IN THE CASE OF SH. BHOOP NARAIN ALSO NO EVIDE NCE REGARDING CAPACITY OF HIS FATHER TO PAY THE MONEY OR REGARDING HIS IDENTITY HAS BEEN SUBMITTED AND THE O THER PERSONS ARE HAVING MEAGER SOURCE OF INCOME AND AGAIN LOOKING INTO THE FACTS, IN MY OPINION, IT IS QUITE IMPRO BABLE THAT SO MUCH MONEY HAS BEEN RECEIVED AGAINST AGREEMENT TO SALE OF THE SHOP. REGARDING RS.5O,000/- ADDED BY THE A.O. NO EVIDENCE HAS BEEN FURNISHED BY THE APPELLANT. IN VI EW OF THIS, THE GROUNDS OF APPEAL ARE DISMISSED. 5. WE HAVE HEARD LD. REPRESENTATIVES OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE LD . COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE AUTHORITIES BELOW AND SUBMITTED THAT TH E ASSESSEE NEED NOT TO PROVE SOURCE OF THE SOURCE. H E HAS REFERRED TO AGREEMENTS IN QUESTION IN PAPER BOOK AN D THE STATEMENTS OF SHRI BHOOP NARAIN AND SHRI SUBHAS H KUMAR RECORDED BY THE ASSESSING OFFICER. HE HAS RE LIED UPON JUDGEMENT OF THE HON'BLE PUNJAB & HARYANA HIGH 8 COURT IN THE CASE OF CIT VS LAUL TRANSPORT CORPORAT ION 180 TAXMAN 185. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE SUBMITTED THAT ASSESSEE HAD DISCHARGED TH E ONUS TO PROVE THE SOURCE OF THE ABOVE BANK DEPOSIT AND ALSO SUBMITTED THAT RS. 50,000/- WAS DEPOSITED IN T HE BANK OUT OF PAST SAVINGS. ON THE OTHER HAND, LD. D R RELIED UPON ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ASSESSEE FAILED TO PROVE CREDIT WORTHINESS OF THE ABOVE PERSONS AND GENUINENESS OF THE TRANSACTION AND EVEN IN TWO CASES OF SHRI SANJAY KU MAR AND SHRI HARBILAS, ASSESSEE FAILED TO PROVE THEIR I DENTITY AS WELL. THE PERSONS WITH WHOM ALLEGED AGREEMENTS HAVE BEEN ENTERED INTO, THEY WERE NOT MAN OF MEANS AND WERE HAVING ONLY MEAGER SOURCES. CONSIDERING THEIR FAMILY MEMBERS, IT IS PROVED BY THE ASSESSING OFFIC ER THAT THEY WERE HAVING NO SAVINGS WITH THEM. THE LD . DR ALSO SUBMITTED THAT WHEN AGREEMENTS IN QUESTION WER E ENTERED INTO AS PER STATEMENT OF THE ASSESSEE, THER E WERE NO REASONS WHY THE SAME WERE NOT EXECUTED ON T HE STAMP PAPERS TO PROVE THE GENUINENESS OF THE TRANSACTION IN THE MATTER. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS. THE ASSESSEE MADE THE DEPOSITS OF RS. 23 LACS, RS. 5 LA CS AND RS. 50,000/- IN HIS BANK ACCOUNT ON DIFFERENT D ATES. THE ASSESSEE CLAIMED THE SOURCE OF THESE BANK DEPOS ITS TO BE AGREEMENT TO SELL ENTERED INTO WITH THE FOUR PARTIES. IN THE CASE OF SALE OF SHOP NO. 2, THE ASS ESSEE ALLEGEDLY ENTERED INTO AGREEMENT TO SELL WITH SHRI BHOOP 9 NARAIN. THE ADVANCE IS STATED TO HAVE BEEN PAID IN CASH. NO TRANSACTIONS HAVE BEEN DONE THROUGH BANKI NG CHANNEL. THE AGREEMENT TO SELL IS NOT RECORDED ON T HE JUDICIAL STAMP PAPERS TO PROVE THE GENUINENESS OF T HE AGREEMENT IN THE MATTER. THE STATEMENT OF SHRI BHO OP NARAIN WAS RECORDED BY THE ASSESSING OFFICER IN WHI CH HE HAS EXPLAINED TO HAVE ONLY MEAGER INCOME AND HAS THREE CHILDREN. THEREFORE, HE WOULD NOT HAVE ANY P AST SAVINGS TO MAKE ANY ADVANCE TO THE ASSESSEE. HE WA S NOT MAINTAINING ANY BANK ACCOUNT. HE HAS EXPLAINED THE SOURCE OF GIVING RS. 5 LACS TO THE ASSESSEE OUT OF PAST SAVINGS OF RS. 1,50,000/- FOR WHICH NO EVIDENC E HAS BEEN FURNISHED. CONSIDERING HIS MEAGER INCOME AND LARGE NUMBER OF FAMILY MEMBERS AND THAT HE DID NOT MAINTAIN ANY BANK ACCOUNT, SHRI BHOOP NARAIN FAILED TO PROVE ANY PAST SAVINGS WITH HIM TO ADVANCE ANY MONE Y TO THE ASSESSEE. HE HAS FURTHER EXPLAINED THAT RS. 2,50,000/-WAS RECEIVED BY HIM FROM HIS FATHER BUT H E HAS FAILED TO PRODUCE ANY EVIDENCE OF TAKING ANY AM OUNT FROM HIS FATHER AND ALSO FAILED TO PRODUCE ANY EVID ENCE OF ANY LAND HOLDING AND IDENTITY OF HIS FATHER. HE HAS FURTHER STATED THAT HE HAS RECEIVED RS. 1 LAC FROM HIS TWO BROTHERS-IN-LAW SHRI RAKESH KUMAR AND SHRI SURE SH KUMAR BUT THEY WERE ALSO HAVING ONLY MEAGER SALARY INCOME. THEREFORE, CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES, IT IS CLEARLY PROVED THAT ASSESSEE M ERELY PRODUCED SHRI BHOOP NARAIN FOR EXAMINATION BUT FAIL ED TO PROVE HIS CREDIT WORTHINESS AND GENUINENESS OF T HE 10 TRANSACTION IN THE MATTER FOR GIVING ANY ADVANCE TO THE ASSESSEE. 7. AS REGARDS THE RECEIPT OF ADVANCE OF RS. 23 LACS FROM SHRI SANJAY KUMAR, SHRI HARBILAS AND SHRI SUBHASH KUMAR ON 29.01.2009 AND 02.02.2009, AGAIN THE POSITION IS SAME BECAUSE IT WAS A CASH TRANSACT ION. NO BANKING TRANSACTIONS HAVE BEEN DONE AND EVEN THE AGREEMENT IN QUESTION WAS NOT EXECUTED ON THE JUDIC IAL STAMP PAPERS TO PROVE THE GENUINENESS OF THE AGREEM ENT IN QUESTION. THE ASSESSEE FAILED TO PRODUCE SHRI S ANJAY KUMAR AND SHRI HARBILAS BEFORE ASSESSING OFFICER FO R EXAMINATION. THE ASSESSING OFFICER ISSUED SUMMONS AGAINST THEM BUT IT WAS REPORTED THAT NO PERSON BY THE NAME OF SANJAY KUMAR IS RESIDING AT THE GIVEN ADDRE SS AND IN CASE OF SHRI HARBILAS, NAME OF HIS FATHER WA S FOUND INCORRECT AND HE WAS ALSO NOT FOUND AT THE GI VEN ADDRESS. THEREFORE, IN THESE CASES, DESPITE GIVING SEVERAL OPPORTUNITIES, ASSESSEE FAILED TO PROVE EVE N THEIR IDENTITY, WHAT TO SAY OF CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTION IN THE MATTER. THE ASSESSEE, HOWEVER, PRODUCED SHRI SUBHASH KUMAR, WHOSE STATEMENT WAS RECORDED BY ASSESSING OFFICER B UT HE HAS FAILED TO PRODUCE ANY AGREEMENT TO SELL OF H IS OWN HOUSE WHICH WAS STATED TO HAVE BEEN SOLD AND NO PARTICULARS OF PURCHASER WERE GIVEN. HE WAS MAINTAI NING BANK ACCOUNTS BUT NO AMOUNTS HAVE BEEN WITHDRAWN FROM HIS BANK TO GIVE ANY ADVANCE MONEY TO THE ASSESSEE. HE WAS NOT ABLE TO TELL EVEN THE NAMES O F THE 11 PERSONS WITH WHOM HE HAS ENTERED INTO AGREEMENT FOR SALE OF HIS HOUSE. HE HAS NOT ESTABLISHED THAT HE HAS SOLD ANY HOUSE AND HE WAS HAVING ANY SOURCE TO GIVE ADVANCE TO THE ASSESSEE. ORIGINAL AGREEMENT WAS NO T PRODUCED. THE AGREEMENT IN THIS CASE WAS ALSO NOT ON JUDICIAL PAPER. DESPITE THE AGREEMENT WITH SHRI SUBHASH KUMAR WAS CANCELLED BUT ENTIRE ADVANCE MONE Y WAS NOT REFUNDED IMMEDIATELY TO SHRI SUBHASH KUMAR. IT IS NOT EXPLAINED AS TO WHAT HAPPENED WITH REGARD TO THE AMOUNT REFUNDED ON CANCELLATION OF AGREEMENT TO SHRI SANJAY KUMAR AND SHRI HARBILAS. IT IS HIGHLY UNBELIEVABLE THAT THE PERSONS WHO HAVE GIVEN ADVANC E TO THE ASSESSEE NAMELY SHRI SANJAY KUMAR AND SHRI HARBILAS, HAVE DISAPPEARED AND NEVER ASKED FOR REFU ND OF THEIR AMOUNT ON CANCELLATION OF THE AGREEMENT IN QUESTION. THUS, ASSESSEE FAILED TO PROVE CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTION FOR RECEIPT OF ADVANCE OF RS. 23 LACS FROM ABOVE PERSON S AND EVEN IN THE CASE OF SHRI SANJAY KUMAR AND SHRI HARBILAS, ASSESSEE FAILED TO PROVE THEIR IDENTITY. IN VIEW OF THE ABOVE, ASSESSEE FAILED TO PROVE THE GENUINEN ESS OF THE TRANSACTION IN THE MATTER FOR HAVING RECEIVED A NY ADVANCE OF RS.23 LACS FROM THESE PERSONS. 8. IN CASE OF DEPOSIT OF RS. 50,000/- IN THE BANK ACCOUNT OF THE ASSESSEE, ASSESSEE FAILED TO PRODUCE ANY EVIDENCE OF PAST SAVINGS AND EVEN THIS ISSUE WAS NO T AT ALL ADDRESSED BEFORE LD. CIT(APPEALS) AND NO EVIDEN CE HAVE BEEN FURNISHED IN THIS REGARD. SAME IS THE 12 POSITION BEFORE US AS THE ASSESSEE HAS FAILED TO PR ODUCE ANY EVIDENCE OF DEPOSIT OF RS. 50,000/- OUT OF ANY KNOWN SOURCES. THEREFORE, ASSESSEE FAILED TO EXPLA IN SOURCE OF DEPOSIT OF RS. 50,000/- IN THIS CASE AS W ELL. 9. IT IS INTERESTING TO NOTE THAT BOTH SHRI BHOOP NARAIN AND SHRI SUBHASH KUMAR IN THEIR STATEMENTS HAVE ALSO STATED THAT SINCE DEAL WAS CANCELLED, THEREFORE, THEY ARE NOT LEFT WITH THE COPIES OF THI S AGREEMENT. THIS STATEMENT IS TOTALLY AGAINST THE CONTENTION OF THE ASSESSEE BECAUSE THESE PERSONS WE RE NOT EVEN HAVING ANY COPY OF THE AGREEMENTS OR THE CANCELLED AGREEMENTS AND NOTHING EXPLAINED WHEN THE AMOUNTS HAVE BEEN REFUNDED TO THEM BY THE ASSESSEE. THESE FACTS CLEARLY PROVED THAT IT WAS UNACCOUNTED MONEY OF THE ASSESSEE WHICH WAS DEPOSITED IN CASH I N THE BANK ACCOUNTS OF THE ASSESSEE. THE ASSESSEE TR IED TO PROVE THE UNACCOUNTED MONEY UNDER THE GARB OF TH ESE AGREEMENTS BUT ASSESSEE FAILED TO PROVE THE GENUINE NESS OF THE TRANSACTIONS IN THE MATTER AND THE SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNTS OF THE ASSESSEE . THE TRANSACTIONS ALLEGED BY THE ASSESSEE ARE THUS, NOT GENUINE. HON'BLE SUPREME COURT IN THE CASES OF DUR GA PRASAD MORE 82 ITR 540 AND SUMATI DAYAL 214 ITR 801 HAS HELD THAT, THE COURTS AND TRIBUNALS HAVE TO JUDGE THE EVIDENCE BEFORE THEM BY APPLYING THE TEST OF HU MAN PROBABILITIES AND MAY ALSO CONSIDER THE SURROUNDING CIRCUMSTANCES. 13 10. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT ASSESSEE FAILED TO EXPLAIN THE GENUINE TRANSACTIONS IN THE MATTER AND SOURCE OF CASH DEPOSITED IN HIS BANK ACCOUNTS. WE, THEREFORE, DO NOT FIND ANY JUSTIFICA TION TO INTERFERE WITH THE FINDINGS OF FACT RECORDED BY THE AUTHORITIES BELOW. THE LD. COUNSEL FOR THE ASSESSE E RELIED UPON DECISION OF HON'BLE PUNJAB & HARYANA HI GH COURT IN THE CASE OF LAUL TRANSPORT CORPORATION (SU PRA) IN WHICH THE TRIBUNAL ACCEPTED THE IDENTITY AND CRE DIT WORTHINESS OF THE CREDITORS TO ADVANCE MONEY AND GENUINENESS OF THE CASH CREDITS AND THE FINDING OF FACT HAVE NOT BEEN DISTURBED BY THE HON'BLE HIGH COURT. HOWEVER, THE FACTS OF THE PRESENT CASE ARE ALL TOGE THER DIFFERENT AS NOTED ABOVE. THEREFORE, THIS DECISION WOULD NOT SUPPORT THE CASE OF THE ASSESSEE. 11. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE ASSESSEE. THE SAME IS ACCORDINGLY DISMISSED. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (RAJESH KUMAR) (BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 30 TH MARCH,2016. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT/CHD