DEEPAK SIBAL,J. - (1.) Invoking Section 260-A of the Income Tax Act, 1961 (for short "the Act"), the assessee has filed the present appeal, which pertains to the Assessment Year 2009-10 and seeks to raise therein the following substantial questions of law :- "I. Whether under the fact and circumstances of the case, the Tribunal order is unreasonable while overlooking and neither returning any findings on the 'fact and direct evidence u/s 32 of Indian Evidence Act, 1872 qua the existence of the payee to the capital account transactions u/s 2(14) of the Income Tax Act, 1961 ? II. Whether under the fact and circumstances of the case, pursuant to the Provisions of Section 2(14), 45(1) r.w Section 51, the advance money arising out of agreement to sell shall be deducted from the 'cost of asset' and (or) the whole amount is 'chargeable' to tax u/s 5 as 'revenue receipt' ?"
(2.) In the income of the assessee, as filed in his return, additions were made by the Assessing Officer to the tune of Rs. 28.50 lacs on account of unexplained deposits made by him in his bank accounts. On being questioned by the Assessing Officer, the assessee sought to explain the aforesaid deposits by stating that he had received cash on the sale of Plot No. 9, Bhogla Road, Rajpura (for short the Plot) and Shop No.2, Village Chhura (for short the Shop). As per the assessee, in pursuance to the agreement to sell the Plot, he had received Rs. 9.50 lacs on 29.01.2009 and Rs. 13.50 lacs on 02.02.2009 from S/Shri Sanjay Kumar, Harbilas and Subhash Kumar. Such cash was deposited by him on the same date in his account but since the deal could not mature, the agreement to sell was cancelled and the amount of Rs. 12 lacs was repaid by the assessee on 02.03.2009. The balance amount was repaid in the Assessment Year 2011-12. So far as the Shop is concerned, it was the case of the assessee that as per the agreement to sell, the assessee had received Rs. 5 lacs from Shri Bhoop Narayan, which was deposited by him in his bank account.
(3.) On being asked, the assessee could not produce S/Shri Sanjay Kumar and Harbilas, who allegedly along with Shri Subhash Kumar had paid cash to him to the tune of Rs. 23 lacs. Shri Subhash Kumar was produced but he could not explain the source of the cash allegedly given by him to the assessee. He also denied having knowledge of the whereabouts of S/Shri Sanjay Kumar and Harbilas, who incidently, along with him, were also a party to the agreement to sell the Plot. The agreement to sell produced by him was not on judicial paper. As per the address given on the agreement of S/Shri Sanjay Kumar and Harbilas, the Assessing Officer issues notices to them under Section 131 of the Act. However, the summons were received back in the office with the remarks that at the given address of Shri Sanjay Kumar, no such person was found and that the father's name of Shri Harbilas was not correct. In spite of final opportunity granted to the assessee, he failed to produce the above said two persons.;