This is appeal filed by Revenue against order of CIT(A), dt. 22nd March, 2002 for asst. yr. 1992-93 in matter of order passed under s. 143(3). Following four effective grounds have been taken by Revenue: "1. CIT(A) has erred in law and on facts in deleting addition of Rs. 39,550 made as short-term capital gain and failed to appreciate evidence marshalled by AO. CIT(A) has erred in law and on facts in deleting addition of Rs. 2,98,000 under s. 69 of IT Act, 1961. CIT(A) has erred in law and on facts in deleting addition of Rs. 2,95,000 made under s. 40A(3) of IT Act, 1961 and failed to examine properly arguments of AO. CIT(A) has erred in law and on facts in admitting additional evidence of agreement dt. 20th March, 1984 which was never produced before AO and has contravening provisions of r. 46A of IT Rules, 1962." Rival contentions have been heard and records perused. First grievance of revenue relates to deletion of addition of Rs. 39,550 made on account of short- term capital gain. facts in brief are that assessee sold plot of land during year under consideration and received payment of Rs. 77,000 in cash. AO found that assessee has purchased plot at Rs. 37,500 and which was held by him for less than 36 months. It was contended before AO that assessee was not legal owner, but only power of attorney holder, therefore, capital gains should not be charged in his hands. It was also submitted that plot was sold at Rs. 150 per sq. yard and not at Rs. 310 per sq. yard as alleged by AO as per statement of husband and brother of buyer of plot. However, on basis of statement recorded by DDI, AO concluded that assessee had sold plot at Rs. 310, he, therefore, computed capital gain at Rs. 39,550. By impugned order, CIT(A) deleted addition made on account of capital gain by observing that there was no transfer of plot in name of assessee within meaning of s. 2(47), insofar as full consideration of Rs. 37,500 was not paid by assessee. CIT(A) further observed that out of total purchase consideration of Rs. 37,500, assessee had only paid Rs. 37,000 and till balance amount is being paid, he could not become legal owner of plot. On basis of power of attorney held by assessee, CIT(A) concluded that even if any capital gain is taxable, it should be taxed in hands of legal owner and not in hands of assessee, who was merely having power of attorney. We have considered rival contentions and found from record that assessee has purchased plot and agreement of sale and power of attorney was registered in his name. We also found that possession was also given to assessee and he has sold plot at Rs. 310 per sq. yard. DDI has recorded statement of husband of buyer of plot as well as his brother, according to which capital gain works out to Rs. 39,550. Without controverting finding and statement recorded by AO and DDI, CIT(A) deleted addition by observing that while recording statement of husband and his brother of assessee, no opportunity to cross-examine was given to assessee. While reaching to conclusion that there was no transfer of plot within meaning of s. 2(47), since part of payment was withheld by assessee, CIT(A) relied on decision of Late Nawab Sir Mir Osman Ali Khan vs. CWT (1986) 57 CTR (SC) 89: (1986) 162 ITR 888 (SC). However, case law relied by CIT(A) is related to computation of net wealth as per s. 2(m) of WT Act, wherein it was held that properties in respect of which registered sale deeds had not been executed, but consideration had been received, belonged to assessee for purpose of inclusion in his net wealth within meaning of s. 2(m). However, here we are concerned with definition of transfer within meaning of s. 2(47). Clause (v) has been inserted in s. 2(47) by Finance Act, 1987 w.e.f. 1st April, 1988, according to which, any transaction involving allowing of possession of any immovable property to be taken or retained in part performance of contract of nature referred to in s. 53A of Transfer of Properties Act, 1882, is considered to be transfer in relation of capital assets. In instant case, sale agreement was registered in name of assessee, according to which, possession was also handed over. Therefore, in view of cl. (v) of s. 2(47), transfer is complete for purpose of computation of capital gain even though sum of Rs. 500 was remained to be paid by assessee. However, assessee has also disputed computation of capital gain, on plea that sale consideration taken by AO was based on statement recorded by DDI from buyer s husband and his brother, without giving opportunity to cross-examine. We also found that assessee has also furnished instances of sale, according to which, price prevailing in area was at par with rates at which assessee had sold plot. In interest of justice and fair play, we are restoring this ground to file of AO with limited purpose of computing capital gain, after giving due opportunity to assessee to cross-examine all persons, who have alleged sale of plot at Rs. 310 per sq. yard instead of Rs. 150 per sq. yard taken by assessee. AO is also directed to verify rate taken by registering authorities for purpose of levy of stamp duty, while registering sale deed so executed and to decide amount of capital gains accordingly. We direct accordingly. Next grievance of revenue relate to deletion of addition of Rs. 2,98,000 made under s. 69 of IT Act. Brief facts of issue are that assessee was trader and dealing in cement sheet. AO found that assessee had made purchases from Om Traders to whom cash payments were made. AO found that as per statement, assessee s purchase account reflected in books of M/s Om Traders, certain payments made by assessee, did not find place in t h e assessee s books of account. He, therefore, treated same as unexplained payment, and added same under s. 69 of Act. By impugned order, CIT(A) deleted addition by observing that provisions of s. 69 do not caste burden upon assessee, but on assessing authority to establish that assessee had made investment in acquiring some assets which he failed to do. He further observed that expression investment as appears in IT Act, is used in sense of investment which is in nature of capital investment and which is not investment in securities or properties which is its stock-in-trade. He, therefore, held that assessment of Rs. 2,98,000 which was alleged to have been paid in discharge of assessment of Rs. 2,98,000 which was alleged to have been paid in discharge of liabilities towards price of stock purchases, cannot be assessed as unexplained investment under s. 69 of IT Act. We have considered rival contentions and do not find any justification in CIT(A) s action for treating unrecorded payment, as not falling under s. 69. Whether any investment has been made in capital asset, or stock in trade, assessee is required to record investment in its books of account and explain source of same and if there is any failure on part of assessee to record such investment in books of account maintained by him for any source of income, or assessee offers no explanation about nature and source of investment, value of such investment may be deemed to be income of assessee. However, in instant case, CIT(A) has recorded finding that entire payment made to M/s Om Traders were not unexplained, but assessee has recorded some of payments in his books of account on dates different from dates on which payments was found recorded in books of Om Traders. He, therefore, observed that only peak credit of Rs. 52,500 can be considered as unexplained. We also found that as per details of various payments made by assessee as found recorded in books of M/s Om Traders vis-a-vis in assessee s books of account, as reproduced by CIT(A) at p. 9 of his appellate order, there was peak unexplained credit of Rs. 52,900 only. Nothing was brought on record by Department to controvert this finding of CIT(A). There is no dispute to well-settled legal position that addition under deeming provisions of s. 69 can be made only to extent of amount of investment which could not be satisfactorily explained by assessee. We, therefore, direct AO to restrict addition under s. 69 to extent of Rs. 52,500, and not to Rs. 2,98,000. last grievance of revenue relates to deletion of addition of Rs. 2,95,000 made under s. 40A(3) of IT Act. AO has made addition of Rs. 2,95,000 on account of cash payment exceeding Rs. 10,000 made to M/s Om Traders. It was explained by assessee, that as per terms of purchases entered into with M/s Om Traders, assessee was required to make payment in cash only and assessee was covered by exception provided under r. 6DD(j). We also found that during course of appellate proceedings before CIT(A), copy of agreement in form of letter was forwarded by CIT(A) to AO for his comments. On basis of agreement, CIT(A) found that assessee s case is covered by exception provided under r. 6DD(j). ground raised by Revenue with regard to additional evidence under r. 46A, with respect to acceptance of agreement dt. 20th May, 1984 is not sustainable insofar as before relying on contents of agreement, CIT(A) in exercise of its power under s. 251, has sent agreement for AO s comments. Thus, there is n o violation of r. 46A, insofar as AO was given opportunity to examine evidence or to cross-examine witness produced by assessee, under sub- r. (3) of r. 46A. According to provisions of s. 40A(3) of Act (as they stood at relevant time), where assessee incurs expenditure in cash, in excess of Rs. 10,000, such expenditure cannot be allowed as deduction. Relief from rigour of this provision is however, provided by cl. (j) of r. 6DD of rules which is reproduced hereunder: "(j) in any other case, where assessee satisfies ITO that payment could not be made by crossed cheque drawn on bank or by crossed bank draft: (1) due to exceptional or unavoidable circumstances, or (2) because payment in manner aforesaid was not practicable, or would have caused genuine difficulty to payee, having regard to and also furnished evidences to satisfaction of ITO as to genuineness of payment and identity of payee." In clarification of provisions of s. 40A(3) of Act and cl. (j) of r. 6DD of Rules, CBDT issued Circular No. 220, dt. 31st May, 1977, [(1977) 108 ITR (St) 8], where, in para 4 thereof, it was stated that though all circumstances in which conditions laid down in r. 6DD(j) would be applicable cannot be spelt out, some of them which would seem to meet requirements of said rule are: (i) purchaser is new to seller; or (ii) transactions are made at place where either purchaser or seller does not have bank account; or (iii) transactions and payments are made on bank holiday; or (iv) seller is refusing to accept payment by way of crossed cheque/draft and purchaser s business interest would suffer due to non- availability of goods otherwise than from this particular seller; or (v) seller, acting as commission agent, is required to pay cash in turn to person from whom he has purchased goods; or (vi) Specific discount is given by seller for payment to be made by way of cash. said circular was noticed and considered in Navsari Waste Cotton Products vs. CIT (1986) 51 CTR (Guj) 252: (1987) 163 ITR 378 (Guj), where it was held that it would appear from cls. (i) to (v) of para 4 of said circular that if identity of seller is known, it would be possible for Department to cross-check if payment in question was actually made in cash to seller from whom goods were purchased and requirement of r. 6DD(j) would stand satisfied if letter is produced from seller in respect of each transaction falling within categories illustrated in para 4 giving full particulars of his address, sales-tax registration number, if any, for purposes of proper identification to enable ITO to satisfy himself about genuineness of transaction. It was further added that circumstances indicated in para 4 of circular were merely illustrative and not exhaustive, but underlying idea was that if seller s identity can be established, it would be possible for ITO to cross-check whether transaction had, in fact, taken place as stated and was of genuine nature. similar view is expressed by High Court of Calcutta in Girdharilal Goenka vs. CIT (1989) 80 CTR (Cal) 140: (1989) 179 ITR 122 (Cal), where it was observed that: "The circular of Board is not exhaustive, it is only illustrative and AO has to take into account surrounding circumstances, considerations of business expediency and facts of each particular case in exercising his discretion either in favour or against assessee" (p. 128) It was also held that ITO should take practical approach to problem and strike balance between direction of law and hardship to assessee. Next to be noted is judgment of High Court of Gujarat in Hasanand Pinjomal vs. CIT 1977 CTR (Guj) 486: (1978) 112 ITR 134 (Guj), where, it was observed, that "practicability for purposes of r. 6DD(J) must be judged from point of view of businessman and not of Revenue and further that business expediency was one of relevant factors". In instant case, genuineness of cash payments by assessee was not doubted by AO and h e has accepted books of account. Furthermore, both sellers and purchasers were income-tax assessees, no disallowance can be made under s. 40A(3) in view of findings recorded by CIT(A) and decisions discussed hereinabove. We, therefore, do not find any infirmity in order of CIT(A) for treating assessee s case being covered by exception provided under r. 6DD(j) of IT Rules. In result, appeal of Revenue is allowed in part in terms indicated hereinabove. *** INCOME TAX OFFICER v. MADAN LAL MITTAR