Judgment ( 1. ) THIS appeal has been preferred by the assessee aggrieved by order (Annexure A-12) passed by the Income Tax Appellate Tribunal, on 29-10-99 by which appeal filed by the Revenue has been partly allowed. ( 2. ) THE Commissioner of Income Tax (Appeals) has passed an order (Annexure A-10) and has disbelieved the case of the assessee that though he has received an amount of Rs. 2,05,000/towards sale consideration but has refunded Rs. 1,50,000/- on 1-4-89, as per oral understanding, for failure to carry out repairs and renovations. The Commissioner of Income Tax (Appeals) has reversed the order passed by the Assessing Officer. Assessing Officer has passed an order (Annexure A-8) on 27-3-97. The Assessing Officer has disbelieved the story of renewals, repairs and renovation as totally false and not acceptable. The correctness of the order passed by the Income Tax Appellate Tribunal has been questioned in this appeal. ( 3. ) FACTS which are necessary for adjudication of this appeal indicate that a search was conducted under Section 132 (1) of the Income Tax Act, 1961 from 11-10-93 to 15-10-93. Certain articles, incriminating documents, books of accounts, diaries etc. were found and seized. During the course of search, it was found that assessee purchased ground floor of House No. 680, Sarafa, constructed on Block No. 48, Plot No. 137/1, area 587 sq. ft. for Rs. 40,000/-from Shri Gopichand Agrawal and his wife Smt. Rajkumari Devi on 19-1-1988. He spent another Rs. 4500/- towards stamp duty and other expenses. This house has been sold in two parts-- one part to Smt. Vimal Bai wife of Shri Madanlal having an area of 300 sq. ft. for Rs. 40,000/- and the Ors. part for Rs. 35,000/- having area of 287 sq. ft. to Smt. Rajkumari, wife of Shri Ashok Kumar. During the course of search several agreements were found as per Annexure AA-1/10 of the Panchnama. The agreement dated 12-12-1988 shows that the assessee agreed to sell the above house on 12-12-1989 for Rs. 2,25,000/- to Smt. Vimla Bai, wife of Shri Madanlal and Smt. Rajkumari Bai, wife of Shri Ashok Kumar. The payments as per agreement dated 12-12-88 were received to the extent of Rs. 2,05,000/- on different dates. The agreement dated 12-12-1988 shows that the assessee agreed to sell the above house on 12-12-1989 for Rs. 2,25,000/- to Smt. Vimla Bai, wife of Shri Madanlal and Smt. Rajkumari Bai, wife of Shri Ashok Kumar. The payments as per agreement dated 12-12-88 were received to the extent of Rs. 2,05,000/- on different dates. During the course of hearing, it has been submitted by the assessee that after purchasing the property, assesses had undertaken certain repairs and renovation prior to sale, which amounted to Rs. 27,910/- for which a bill from Shiv Kumar Rajendra Pandey dated 29-3-1989 has been filed. Affidavits of Smt. Vimal Bai and Smt. Rajkumari Bai, the two purchasers show that they have received back Rs. 1,50,000/- on 1-4-89. It has been stated in their affidavits that oral agreement and mutual undertaking was to make certain repairs and renovations which assessee failed to do, hence the purchasers have taken back Rs. 1,50,000/- on 1-4-89. ( 4. ) THE case set up by the assessee has been disbelieved by the Assessing Officer, which finding was reversed by the Commissioner of Income Tax (Appeals ). Order passed by CIT has been set aside by ITAT. Hence this appeal has been preferred by the assessee before this Court. This appeal was admitted by this Court on 1-11-2001 on following substantial question of law:-"whether in the facts and circumstances of the case, the Tribunal was right in holding that it was not necessary to cross-examine the deponent before rejecting the affidavits and had sufficient material to make addition of Rs. 1,52,090. 00 in the income of the assessee ?" ( 5. ) SHRI G. N. Purohit, learned Counsel appearing on behalf of the appellant has submitted that in the absence of cross-examination and the affidavit of the purchasers, the case of refund of Rs. 1,50,000/- ought to have been accepted. Thus error of law has been committed in not relying upon the affidavits. He has further submitted that consequently it has to be held that addition of Rs. 1,52,090 is not justified. ( 6. 1,50,000/- ought to have been accepted. Thus error of law has been committed in not relying upon the affidavits. He has further submitted that consequently it has to be held that addition of Rs. 1,52,090 is not justified. ( 6. ) WHETHER the affidavits could have been accepted on the face of it, is to be viewed in the material facts of the case that in the agreement or in the sale deed, there is absolutely no stipulation that any such agreement for repair/renovation was entered into and it was a duty of the vendor to carry out. It is apparent that sale deed was not executed for the amount which was admittedly received by the seller, hence when agreement was found in search, case of refund has been set up. In search, agreement dated 12-12-1988 was found and in view of the agreement and receipt of consideration of Rs. 2,05,000 it was rightly not disputed that it was an amount of sale consideration. In the absence of any stipulation in the sale deed or in the agreement as to the repairs/renovation to be carried out, the oral understanding was rightly rejected as false by the Assessment Officer. The Assessment Officer has discarded the affidavits on cogent grounds. The purchasers have not specified in their affidavit how much amount they have received individually and by what mode. Sale deeds have been executed on 7-2-89 and payments were received upto 31-3-89. The Income Tax Appellate Tribunal has considered the question in Para 6 thus :- "6. We have carefully considered the arguments of both the sides and have perused that the material placed before use. In this appeal, two issues arise-- (1) Whether the actual sale consideration was Rs. 2. 25 lakhs, i. e. , as represented by the agreement or Rs. 75,000/- as disclosed in the sale deed; secondly, whether the assessee incurred an expenditure of Rs. 27,910/- for the repair of property under consideration. As per agreement dated 12-12-88, the assessee had agreed to sell the property under consideration or the sum of Rs. 2. 25 lakhs to Smt. Vimla Bai and Smt. Raj Kumari. Copy of this agreement was found at the time of search of the assessees premises and the same is enclosed at pages 1,2 and 6 of the department s paper book. 2. 25 lakhs to Smt. Vimla Bai and Smt. Raj Kumari. Copy of this agreement was found at the time of search of the assessees premises and the same is enclosed at pages 1,2 and 6 of the department s paper book. The assessee executed this sale deed on 7-2-89, according to which the property was sold in two pieces. For Rs. 75,000/- (Rs. 45,000/- (+) Rs. 30,000/- ). The assessee has claimed that he had refunded the sum of Rs. 1. 50 lakhs, to the buyers, because he was unable to carry out the repair and renovation, which was a condition of sale. From the perusal of the agreement to sale, which is at pages 1, 2 and 3 of the departments paper book, we do not find any such condition. From the said agreement it is also found that the payment was made in peace-meal and on each date of payment, it was written by the recipient about the money received as well as outstanding balance amount. The payment is received on various dates from 12-12-1988 to 31-3-1989. It is unbelievable that the buyers went on making the payment but did not ask the assessee to carry out the repair work. Moreover, the sale deed itself was executed on 7-2-89 and even thereafter the buyers made the payment on various dates. Had there been any such condition to carry out the repairs, no prudent buyer would have got the property registered and would go on making the payment without asking the seller to carry out the repairing work. The contention of the assessee that he could not carry out the repair work fully because the permission was not allowed by HITKARNISABHA, which run the school at the first floor of the said building also looks incorrect, because the assessee himself has claimed to have carried out the repair work for which an expenditure of Rs. 27,910/- is claimed. From the copy of the bill for repairing at page 8, it seems that the assessee carried out almost all types of repairing, which include breaking of old plaster, digging of flooring, making of walls, fitting of doors, flooring, plastering, ceiling, electrification, white wash etc. Thus, in our opinion, the claim of the assessee that he could not carry out the repair work and, therefore, refunded the sum of Rs. 1. 50 lakhs is unacceptable. Thus, in our opinion, the claim of the assessee that he could not carry out the repair work and, therefore, refunded the sum of Rs. 1. 50 lakhs is unacceptable. The decision of Honble Supreme Court in the case of Mehta Parikh and Company is not applicable to this case as the facts are altogether distinguishable. However, we agree with the assessees claim that the assessee carried out repair work and for which incurred the sum of Rs. 27,910/- which is supported by the bill produced by the assessee. This bill is not proved to be incorrect or bogus by the Revenue. Accordingly, the capital gain determined by the A. O. at Rs. 1,80,000/- is reduced by Rs. 27,910/ -. Thus the net short term capital gain is worked out to Rs. 1,52,090/- [rs. 1,80,000 (-) Rs. 27,910/-]". ( 7. ) IT is startling that when the value of house was Rs. 2,25,000/-then how can such an oral agreement which was set-up for refund of repair/renovation amount of Rs. 1,50,000/- as per oral understanding, is believable. It passes comprehension why seller would have received sale consideration as per agreement then would enter in oral agreement to spend Rs. 1,50,000/-towards repair/renovation and would sell house for paltry sum as compared to amount which was to be spent in repairs/renovations. Prima facie, the case set up sounds not only incredible but unworthy of acceptance in toto. In view of the agreement as well as sale deed, we find that the affidavit have been rightly rejected by the Assessment Officer and ITAT. We find that even in the absence of cross-examination of the deponents of the affidavits, the affidavits were not worthy of credence. Consequently, we find addition made is justified. No substantial question of law arises for consideration. ( 8. ) RESULTANTLY, we find this appeal to be meritless, which is dismissed. Parties to bear their own costs.