Nallamilli Venkatakrishna Reddy, V. The Dy. CIT, Visakhapatnam

ITA 186/VIZ/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3864 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 06-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V SRINIVASA RAO
• Assessee Lawyers: V MADHUSUDAN
• Keywords: Reopening of assessment; Unexplained investment; Search and seizure; Cost of acquisition; Tangible material; Validity of assessment; Reason to believe
• Section: 143(3); 147; 69; 148; 132

Judgement Text

ITA NO S . 179 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER ITA NO.178/VIZ/2017 (ASST. YEAR : 20 08 - 09 ) 1. SATHI SURYANARAYANA REDDY KUTUKULURU VILLAGE EAST GODAVARI DIST. PAN NO. AQSPS0318M V S. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO. 179 / VIZ /201 7 (ASST. YEAR: 20 0 8 - 0 9 ) 2 . KOVVURI ADI REDDY, D.NO. 59 - 19 - 12, JAGANNATHPURAM, KAKINADA BASTI, E.G. DISTRICT. PAN NO. AKYPA 7366 B V S. DCIT, CENTRAL CIRCLE - 1 , VISAKHAPATNAM. ITA NO. 180 / VIZ /201 7 (ASST. YEAR : 20 08 - 09 ) 3. TADI CHINA VENKATA REDDY ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. PAN NO.ALQPT 6801 P VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO. 181/VIZ/2017 (ASST. YEAR : 2008 - 09) 4. KOVVURI VIJAYA SUHDHARA REDDY, D.NO. 6 - 64, KONDUKURU VILLAGE,BIKKAVOLUMANDAL, EAST GODAVARI DIST. PAN NO. BTXPK 4927 K VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 2 ITA NO. 182/VIZ/2017 (ASST. YEAR : 2008 - 09) 5 SABBELLA V.V. SATYANARAYANA REDDY, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. PAN NO. CUNPS 8469 Q VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO. 183/VIZ/2017 (ASST. YEAR : 2008 - 09) 6. KOVVURI VENKATA RAMA REDDY, D.NO. 1 - 23/2, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. PAN NO. BTTPK 2186 E VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO. 184/VIZ/2017 (ASST. YEAR : 2008 - 09) 7 TETALISRINIVASA REDDY, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. PAN NO. AFCPT 1879 B VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO. 185/VIZ/2017 (ASST. YEAR : 2008 - 09) 8 MAILAVARAPU ANANTHA NAGA NARASIMHA SRIKANTH, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. PAN NO. BELPM 8923 C VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO. 186/VIZ/2017 (ASST. YEAR : 2008 - 09) 9. NALLAMILLI VENKATA KRISHNA REDDY, D.NO. 2 - 210/1, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. PAN NO. AEOPN 0361 B VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 3 10. ITA NO. 187/VIZ/2017 (ASST. YEAR : 2008 - 09) PADALAVEERAVENKATASATYANARAYANA REDDY, ANAPARTHIVILLAGE, EAST GODAVARI DIST. PAN NO. ABOOO 0665 G VS DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM 11. ITA NO. 188/VIZ/2017 (ASST. YEAR : 2008 - 09) SATHI RAMA KRISHNA REDDY, D.NO. 9 - 105, ANAPARTHI VILLAGE,EAST GODAVARI DIST. PAN NO. CSDPS 4507 H VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM 12. ITA NO. 189/VIZ/2017 (ASST. YEAR : 2008 - 09) SABBELLAVENKATA REDDY, PALAKOL VILLAGE, WEST GODAVARI DISTRICT. PAN NO. ANDPS 9412 N VS. DCIT, CENTRAL CIRCLE - 1 VISAKHAPATNAM ASSESSEE BY : SHRI V.MADHUSUDAN, A.R DEPARTMENT BY : SHRI V.SRINIVASA RAO , SR. DR DATE OF HEARING : 24 / 0 5 /201 8 . DATE OF PRONOUNCEMENT : 3 0 / 0 5 /201 8 . ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 4 O R D E R PER BENCH : THESE APPEALS FILED BY DIFFERENT ASSESSEES ARE DIRECTED AGAINST SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) - 3, {CIT(A)}, VISAKHAPATNAM DATED 27.12.2016 FOR THE ASSESSMENT YEAR 2008.09. 2. SEARCH & SEIZURE OPERATIONS U/S 132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT') W ERE CONDUCTED IN THE CASE OF SAI LAKSHMI TOWNSHIP PRIVATE LIMITED (STPL IN SHORT), VISAKHAPATNAM ON 22.8.2008 AND SIMULTANEOUSLY, SURVEY OPERATION S WERE ALSO CONDUCT ED IN THE OFFICE PREMISES OF THE ABOVE COMPANY. DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS, THE INCOME TAX DEPARTMENT FOUND THAT , THE ASSESSEE ALONG WITH 11 OTHERS HAVE INVESTED IN PURCHASE OF LANDS TO THE EXTENT OF 6.64 ACRES IN ANNAVARAM VILLAGE THROUGH MR. Y. JOJI REDDY FOR THE PURPOSE OF DEVELOPING A LAY OUT IN ASSOCIATION WITH SRI N. SURYANARAYANA REDDY, MANAGING DIRECTOR OF M/S. SAI LAKSHMI TOWNSHIP PVT. LTD., VISAKHAPATNAM DURING THE F.Y.2007 - 08 . THE ASSESSING OFFICER(A.O.) HAS ISSUED THE NO TICE U/S 148 OF THE ACT AND IN RESPONSE TO WHICH, THE ASSESSEE FILED THE RETURN OF INCOME ADMITTING THE TOTAL INCOME OF RS. 1,04,200/ - . AS DISCUSSED EARLIER, T HE ASSESSEE ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 5 ALONG WITH 11 OTHERS HAVE PURCHASED THE LAND ADMEASURING 6.64 ACRES LOCATED AT SURVEY NO.38/2 (4.64 ACRES) AND 2 ACRES IN SURVEY NO. 26/2 FROM SRI Y. JOJI REDDY, BEING GPA HOLDER OF SHRI KANTHI MOHANTY SURYA PRAKASHA RAO AND 15 OTHERS AND EXECUTED THE SALE DEED IN FAVOUR OF THE ASSESSEE AND 11 OTHERS. ALL THE VENDEES OF THE LAND EITHER DO NOT HAVE TAXABLE INCOME OR HAVING INCOME BELOW THE TAXABLE LIMIT. MOST OF THEM ARE AGRICULTURISTS AND SMALL TIME ARTISANS. SINCE THE FACTS ARE IDENTICAL IN ALL THE APPEALS, THEY ARE CLUBBED , HEARD TOGETHER AND PASSED THE COMMON ORDER FOR THE SAKE OF CON VENIENCE . THE FACTS ARE EXTRACTED ITA NO.179/VIZAG/2017 IN THE CASE OF KOVVURI ADI REDDY, KAKINADA AND SAME FACTS AND THE DECISIONS TAKEN ARE SQUARELY APPLICABLE TO ALL THE IMPUGNED APPEALS. 3. DURING THE COURSE OF SEARCH U/S 132 OF THE ACT, IN THE CASE OF M/S. SAI LAKSHMI TOWNSHIP PVT. LTD., THE INCOME TAX DEPARTMENT FOUND AND SEIZED A DOCUMENT MARKED AS ANNEXURE A/SLT/3/39 (PAGE NOS.8 5 TO 8 7 ) RELATING TO THE AGREEMENT OF SALE PURPORTED TO HAVE ENTERED INTO BETWEEN SHRI KANTHI MOHANTY SURYA PRAKASHA RAO AND 6 OTHERS ON 21.6.2007 FOR SALE OF 21.43 ACRES OF LAND IN SURVEY NOS.38/2, 43/8 AND 5/2 SITUATED IN ANNAVARAM VILLAGE, VISAKHAPATNAM D ISTRICT @ RS. 32,50,000/ - PER ACRE BY SHRI YERUVA JOJI REDD Y, S/O BALI ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 6 REDDY OF HYDERABAD. SUBSEQUENTLY SHRI JOJI REDDY PURCHASED 4.64 ACRES OF LAND IN SURVEY NO.38/2(MENTIONED IN AGREEMENT DATED 21/06/2007 ABOVE) FOR A CONSIDERATION RS. 11,60,000/ - @ RS. 2,50,000/ - PER ACRE AND GOT IT REGISTERED IN THE NAME OF MR. Y.JOJI REDDY THROUGH GPA - CUM - POSSESSION AGREEMENT ON 17.7.2007. FURTHER MR JOJI REDDY HAD PURCHASED 2.00 ACRES OF LAND BY SALE CUM GENERAL POWER ATTORNEY AGREEMENT (GPA) DATED 22/08/2007 FROM SMT . POTHULA ANNAPURNAMMA, W /O SHRI GOWRI SHANKAR OF BHEEMUNIPATN A M FOR CONSIDERATION OF RS.5.00 LACS WHICH WORKS OUT RS .2.50 LACS PER AC RE. THE ASSESSE AND 11 OTHERS HAVE PURCHASED THE SAID LAND OF 6.64 ACRES IN SURVEY NOS. 38/2 AND 26/2 FROM MR.Y.JOJI REDDY BY REGISTERED SALE DEED NO.445 OF 2008 DATED 12.2.2008 FOR A CONSIDERATION OF RS.26 , 56,000/ - @ RS. 4 LAKHS PER ACRE. A CCORDING TO THE ASSESSING OFFICER, THE V ENDEES M U S T N O T HAVE PAID LESS THAN RS. 32.50 LAKHS PER ACRE AS PER THE AGREEMENT DATED 21.6.2007 ENTERED INTO BETWEEN Y. JOJI REDDY AND SHRI KANTIMOHANTI SURYA PRAKASA RAO AND 6 OTHERS WHO WERE THE OWNERS OF THE LAND. THE AO FURTHER OBSERVED THAT MR. Y. JOJI REDDY HAD ENTERED INTO AN AGREEMENT WITH THE OWNERS OF THE LAND OF SURVEY NO.26/2 FOR A CONSIDERATION OF RS. 60 LAKHS BY AN AGREEMENT ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 7 DATED 7.7.2007 AND PAID ADVANCE OF RS. 30 LAKHS TO THE VENDORS . T HEREAFTER HE HAD PURCHASED THE SAID 2.00 ACRES OF LAND BY SALE CUM GENERAL POWER ATTORNEY AGREEMENT (GPA) DATED 22/08/2007 FOR CONSIDERATION OF RS.5.00 LACS WHIC H WORKS OUT RS.2.50 LACS PER AC R E . ACCORDING TO THE AO , THOUGH MR.JOJ I REDDY GOT REGISTERED THE LANDS @RS.2.50 LACS PER ACRE, HE HAD PAID MUCH MORE CONSIDERATION AS AGREED BY HIM WITH THE LAND OWNERS. SINCE THE ULTIMATE RECORDED SALE CONSIDERATION OF RS.26.56 LACS W A S LESS THA N THE CONSIDER ATION ENTERED IN TO BETWEEN THE VEND OR S AND JOJI REDDY THE A.O. ISSUED SHOW CAUSE NOTICE TO THE ASSESSEE AND DIRECTED HIM TO EXPLAIN AS TO WHY THE COST OF ACQUISITION OF THE SAID LAND OF 6.64 ACRES SHOULD NOT BE TREATED AT RS. 32.50 LAKHS PER ACRE AND ASSES S THE DIFFERENCE AMOUNT AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE. IN RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSEES FILED REPLY STATING THAT THEY WERE NOT AWARE OF THE SEIZED DOCUMENT MARKED AS ANNEXURE A/SLT/3/39 AND THEY DO NOT HAVE ANY KNOWLEDGE OF THE AGREEMENT REACHED BETWEEN SHRI KANTIMOHANTI SURYA PRAKASA RAO AND 6 OTHERS AND MR. Y. JOJI REDDY , AND ALSO THE AGREEMENT OF SMT.ANNAPURNAMMA . THE ASSESSEE S STATED IN THEIR EXPLANATION THAT THEY HAVE PAID T H E SALE CONSIDERATION OF RS.26.56 LAC S @ RS. 4 LA KHS PER ACRE FOR PURCHASE OF ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 8 6.64 ACRES OF LAND AND THEY HAVE NOT PAID ANY AMOUNT OVER AND ABOVE THE CONSIDERATION REGISTERED IN THE SALE DEED. T HE ASSE SSEES HAVE DENIED HAVING PAID THE CONSIDERATION OVER AND ABOVE THE ACTUAL CONSIDERATION RECO RDED IN THE SALE DEED. THE A.O. WAS OF THE VIEW THAT THE ASSESSEES M U S T HAVE PURCHASED THE SAID LAND IN SURVEY NOS.38/2 & 26/2 FOR A CONSIDERATION NOT LESS THAN PRICE AGREED AS PER THE AGREEMENT OF SALE I.E. RS. 32,50,000/ - AS PER THE AGREEMENT DATED 21.0 6.2007 AND 7.7.2007 AND HENCE HELD THAT THE ASSESSEE S HA VE PURCHASED 6.64 ACRES @ RS. 32,50,000/ - ACRE AND INVESTED A SUM OF RS. 2,18,32,500/ - INCLUDING REGISTRATION CHARGES, BUT NOT FOR RS. 26,56 ,000/ - AS SHOWN IN THE REGISTERED SALE DEED. ACCORDINGLY, T HE DIFFERENCE AMOUNT OF RS. 1,89,18,996/ - WAS BROUGHT TO TAX IN THE HANDS OF THE ASSESSEE S AS UNDISCLOSED INVESTMENT IN THE HANDS OF THE 12 ASSESSES @ TO RS. 15,76,583/ - PER HEAD . THE A.O. HAS NOT MADE ANY ADDITION OTHER THAN THE UNEXPLAINED INVESTMENT RELA TING TO PURCHASE OF THE LAND. 4. AGGRIEVED BY THE ORDER OF THE A.O., THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND OBJECTED FOR INITIATION OF PROCEEDINGS U/S 148 OF THE ACT I N THE HANDS OF THE ASSESSE, VALIDITY OF THE ASSESSMENT MADE U/S 147 AND ALSO CHALLENGED THE ASSESSMENT ORDER ON MERITS. LD. ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 9 CIT(A) UPHELD THE INITIATION OF PROCEEDINGS U/S 147 OF THE ACT AND THE VALIDITY OF ASSESSMENT MADE U/S 147 R.W.S. 143(3) OF THE ACT. I N RESPECT OF QUANTUM ADDITION , THE LD.CIT(A) HELD THAT THE AGREEMENT DAT ED 21.6.2007 SHOWS THE AGREED PURCHASE PRICE OF RS. 32,50,000/ - IN SURVEY NO.38/2 , AS PER THE AGREEMENT ENTERED INTO BY MR. Y. JOJI REDDY AND SHRI KANTI M OHANTI SURYA PRAKASA RAO AND 6 OTHERS AND IN SURVEY NO.26/2 , AS PER THE AGREEMENT ENTERED INTO B ETWEEN MR. Y. JOJI REDDY AND SMT. P. ANNAPURNAMMA, T HE AGREED PRICE OF THE LAND WAS RS. 30 LAKHS PER ACRE. THUS T HE LD. CIT(A) HELD THAT IT IS UNJUSTIFIED TO ADOPT THE RATE OF RS. 32,50,000/ - PER ACRE FOR THE ENTIRE LAND OF 6.64 ACRES IN VIEW OF THE FACT THAT TWO DIFFERENT AGREEMENTS ARE AVAILABLE FOR SURVEY NO.38/2 AND 26/2 WITH DIFFERENT RATES, HENCE DIRECTED THE A.O. TO ADOPT THE PURCHASE PRICE AT R S. 32,50,000/ - PER ACRE FOR 4.64 ACRES AND RS. 30 LAKHS PER ACRE FOR THE REST OF THE TWO ACRES. ACCORDINGLY, ALLOWED THE PARTIAL RELIEF TO THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. T HE ASSESSEE HAS FILED 13 GROUNDS BOTH ON VALIDITY OF THE ASSESSMENT MADE U/S 147 OF THE ACT AS W ELL AS ON MERITS ALONG WITH APPEAL M EMO . SUBSEQUENTLY, THE ASSESSEE REVISED THE GROUNDS OF APPEAL AND FILED CONCISE GROUNDS. IN CONCISE GROUNDS ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 10 ALSO THE ASSESSEE CHALLENGED THE VALIDITY OF ISSUE OF NOTICE U/S 147 OF THE ACT AND THE ASSESSMENT MADE U/S 14 7 R.W.S. 143(3) AS WELL AS ON MERITS. 6. DURING THE APPEAL HEARING, THE LD. A.R. ARGUED THAT DURING THE COURSE OF S EARCH U/S 132 OF THE ACT, AN AGREEMENT STATED TO HAVE BEEN ENTERED INTO BETWEEN MR. Y. JOJI REDDY AND SHRI KANTI MOHANTI SURYA PRAKASA RAO A ND OTHERS WAS FOUND AND SEIZED BY THE INCOME TAX DEPARTMENT. AS PER THE AGREEMENT, MR. Y. JOJI REDDY, THE VENDEE AGREED TO PURCHASE THE LAND OF 21.43 ACRES IN SURVEY NO.38/2, 43/8 AND 5/2 FROM SHRI KANTIMOHANTI SURYA PRAKASA RAO, KANTIMOHANTI BALA KRISHN A PATRO, KANTIMOHANTI JAGANMOHANA RAO, KANTIMOHANTI A. PATRO, KANTIMOHANTI RAVINDRA AND BAGGAM VENKATA APPALA MURALI SANJEEVARAO. THERE WAS NO SIGNATURE OF MR. Y. JOJI REDDY W HO IS SUPPOSED TO BE THE VENDEE AND THE AGREEMENT WAS SIGNED BY ONLY THE VENDORS. THEREFORE, ARGUED THAT THE AGREEMENT DATED 21.6.2007 IS INVALID IN AS MUCH AS IT IS ONLY A PROPOSAL BUT THERE WAS NO ACCEPTANCE, H ENCE CANNOT BE CALLED AS VALID AGREEMENT. EVEN IF IT IS PRESUMED THAT AGREEMENT IS VALID, THE AGREEMENT WAS FOUND IN THE PREMISES OF M/S. SAI LAKSHMI TOWNSHIP PVT. LTD. B UT NOT IN THE PREMISES OF Y. JOJI REDDY. THE TRANSACTION IN THE SAID AGREEMENT WAS ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 11 BETWEEN K.SURYA PRAKASA RAO & OTHERS AND SHRI Y.JOJI REDDY BUT NOT WITH THE ASSESSEE. THE ASSESSES HAVE PURCHASED THE LA ND FROM MR. Y. JOJI REDDY AND THEY ARE NOT THE P ARTIES TO THE SAID AGREEMENT, HENCE THE CONTENTS OF AGREEMENT HAS NO RELEVANCE TO THE ASSESSE. THE ASSESSEE AND 11 OTHERS HAVE PAID ONLY RS.26.56 LACS FOR PURCHASE OF THE LAND AND T HERE WAS NO EVIDENCE /MAT ERIAL IN THE HANDS OF THE A.O. TO SHOW THAT THE ASSESSEES HAVE PURCHASED THE SAID LAND OF 4.64 ACRES FROM MR. Y. JOJI REDDY FOR THE CONSIDERATION OVER AND ABOVE THE SALE CONSIDERATION REGISTERED IN THE SALE DEED. IN NONE OF THE DOCUMENTS FOUND AND SEIZED BY THE DEPARTMENT REFERRED BY THE LD . CIT(A) /AO I.E. THE AGREEMENT DATED 21.6.2007, 7.7.2007 BETWEEN SMT. P. ANNAPURNAMMA AND MR. Y. JOJI REDDY AND THE GPAS REGISTERED IN FAVOUR OF MR. Y. JOJI REDDY, THERE WAS A MENTION OF THE ASSESSEES. THERE WAS NO NEXUS BETWEEN ASSESSEE AND PARTIES FOR THE AGREEMENT REFERRED BY THE LOWER AUTHORITIES . MERELY BECAUSE THE ASSESSEE HAS PURCHASED THE LAND WHICH WAS PART AND PARCEL OF SURVEY NO. MENTIONED IN AGREEMENT DATED 21.6.2007 AND 7.7.2007, IT CANNOT NOT BE PRESUMED T HAT THE ASSESSE HAD PAID THE UNACCOUNTED CONSIDERATION AND HELD AGAINST THE ASSESSEE FOR REOPENING THE ASSESSMENT. SINCE THERE WAS NO NEXUS AND THERE WAS NO WHISPER IN THE AGREEMENTS ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 12 DATED 21.6.2007 AD 7.7.2007 OR IN THE STATEMENT RECORDED U/S 132(4) OF THE ACT FROM MR. Y. JOJI REDDY,THE LD.A.R ARGUED THAT THERE IS NO REASON FOR THE A.O. TO FORM A BELIEF FOR ES CAPEMENT OF INCOME AND THE ISSUE OF NOTICE U/S 148 OF THE ACT IS ON MERE SUSPICION, SURMISES AND PRESUMPTION S . HENCE, THE NOTICE ISSUED U/S 148 OF THE ACT REQUIRED TO BE QUASHED AND CONSEQUENT ASSESSMENTS MADE U/S 147 R.W.S. 143(3) OF THE ACT ARE TO BE HELD AS NULL AND VOID AND VOID ABINITIO. THE ASSESSEE RELIED ON THE DECISIONS OF HONBLE A.P. HIGH COURT IN THE CASE OF CIT V S. BRAJESH KUIMAR AGARWAL 369 ITR 171 AND HONBLE SUPREME COURT DECISION IN THE CASE OF S. NARAYANAPPA VS. CIT 63 ITR 219 (SC) AND THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. DAULAT RAM RAWAT MAULLA 87 ITR 349 AD LAXMANI MEWAL DAS 103 ITR 437. 7 . ON THE OTHER HAND, THE LD. D.R. RELIED ON THE ORDERS OF THE LOWER AUTHORITIES AND ARGUED THAT MR. Y. JOJI REDDY HAS ENTERED INTO AN A GREEMENT FOR PURCHASE OF LAND WITH THE ORIGINAL OWNERS SHRI KANTI MOHANTI SURYA PRAKASA RA O AND 6 OTHERS FOR AN AGREED CONSIDERATION OF RS.32,50,000./ - AND GOT IT REGISTERED FOR 4.64 ACRES OUT OF 21.43 ACRES BY SALE - CUM - GPA AGREEMENT DATED 17.7.2007 FOR A CONSIDERATION OF RS.11,60,000/ - . SIMILARLY, HE HAD ENTERED INTO AN ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 13 AGREEMENT WITH SMT. P. ANNAPURNAMMA FOR PURCHASE OF LAND FOR AN AGREED PRICE OF RS.30 LAKHS PER ACRE IN SURVEY NO.26/2 AND PAID ADVANCE OF RS.30 LAKHS AND GOT IT REGISTERED BY SALE - CUM - GENERAL POWER OF ATTORNEY FOR A CONSIDERATION OF RS.5 LAKHS ON 22.8.2007 . S INCE MR. Y. JOJI R EDDY HAD ENTERED INTO AN AGREEMENT FOR PURCHASE OF LAND AT RS.32,50,000/ - , AND RS.30.00 LACS PER ACRE WITH ORIGINAL OWNERS AND HAS PAID A CONSIDERATION OVER AND ABOVE THE REGISTERED SALE CUM GPA DATED 22.8.2007 AND 17.7.2007 , THERE WAS NO CASE FOR SELLING THE LAND BELOW THE AGREED PRICE IN AGREEMENT WITH THE ORIGINAL OWNERS. THE LD.DR F URTHER SUBMITTED THAT ACCORDING TO THE STATEMENT RECORDED U/S 131, FROM MR. Y. JOJI REDDY ON 10/09/2008 HE STATED THAT HE HAD PURCHASED THE LAND ON AN AVERAGE PRICE OF RS.25 LAKHS PER ACRE BUT NOT RS.32.50 LAKHS , IN RESPONSE TO QUESTION NO.12. THEREFORE, IT IS UNDISPUTED FACT THAT MR. Y. JOJI REDDY HAD PURCHASED THE LAND FOR A CONSIDERATION OF RS.32,50,000/ - , AND SOLD TO THE ASSESSEE FOR A CONSIDERATION NOT LESS THAN THE PUR CHASE PRICE, WHICH WAS AT RS.32,50,000/ - . THEREFORE, ARGUED THAT THERE WAS AN ESCAPEMENT OF INCOME WITHIN THE MEANING OF SECTION 147 OF THE ACT, HENCE THE A.O. HAS RIGHTLY ISSUED THE NOTICE U/S 148. THEREFORE, ARGUED THAT THERE WAS NO ERROR IN REOPENING OF ASSESSMENT AND QUANTIFICATION OF ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 14 UNDISCLOSED INCOME AND ACCORDINGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES . 8 . WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THIS CASE, THE A.O. HAS ISSUED NOTICE U/S 148 OF THE ACT FOR ESCAPEMENT OF INCOME U/S 147 OF THE ACT. THE FOUNDATION FOR IS SUE OF NOTICE U/S 147 OF THE ACT I S AN AGREEMENT DATED 21.6.2007 STATED TO HAVE BEEN ENTERED INTO BETWEEN MR. Y. JOJI REDDY AND SHRI KANTIMOHANTI SUR YA PRAKASA RAO AND 6 OTHERS FOR SALE OF LAND ADMEASURING 21.43 ACRES IN SURVEY NO.38/2 (17.67 ACRES), 43/ 8 (0.68 ACRES), 5/2 (3.08 ACRES) IN ANNAVARAM VILLAGE. THE AGREEMENT WAS SIGNED BY THE LAND OWNERS I.E ., SHRI KANTIMOHANTI SUR YA PRAKASA RAO AND 6 OTHERS BUT NOT SIGNED BY MR. Y. JOJI REDDY, THE VENDEE. AS PER THE AGREEMENT, MR. Y. JOJI REDDY STATED TO H AVE AGREED TO PURCHASE THE LAND AT AN AGREED PRICE OF RS.32.50 LAKHS PER ACRE AND OUT OF WHICH RS.90.00 LAKHS WAS PAID AS ADVANCE ON 21/06/2007 . THE AGREEMENT WAS VALID FOR 6 MONTHS FROM THE DATE OF AGREEMENT. HOWEVER, MR. Y. JOJI REDDY HAD PURCHASED ON LY 4.64 ACRES IN SURVEY NO.38/2 BY GENERAL POWER OF ATTORNEY - CUM - POSSESSION AGREEMENT DATED 17.7.2007 FOR A CONSIDERATION OF RS.11,64,000/ - . SIMILARLY, MR. Y. JOJI REDDY HAD ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 15 PURCHASED TWO ACRES FROM SMT. P. ANNAPURNAMMA BY SALE - CUM - GPA DATED 22.8.2007 FOR A CONSIDERATION OF RS.5 LAKHS @ RS.2 LAKHS PER ACRE IN SURVEY NO.26/2. THE SAID 4.64 ACRES AND 2 .00 ACRES OF LAND AGGREGATING TO 6.64 ACRES IN SURVEY NO.38/2 AND 26/2 WAS SOLD TO THE ASSESSEE AND 11 OTHERS BY SALE DEED DATED 1.2.2008 FOR A CONSIDERATIO N OF RS.26,56,000/ - @ RS.4 LAKHS PER ACRE . PERUSAL OF THE SEIZED DOCUMENT BEARING NO.A/SLT/3/39 (PAGE NOS.8 5 TO 8 7 ) SHOWS THAT THERE WAS NO MENTION OR WHISPER WITH REGARD TO THE ASSESSE ES AND THERE WAS NO DIRECT CONN ECTION OR NEXUS WITH THE AGREEMENT. AGREEMENT WAS WRITTEN AND SIGNED BY THE VENDORS SHRI KANTIMOHANTI SURYA PRAKASA RAO AND 6 OTHERS BUT NOT BY THE VENDEE OR BY THE ASSESSEES . THEREFORE, THE AGREEMENT DATED 2 1.6.2007 MARKED AS A/SLT/3/39 (PAGE NOS.87 TO 85) CANNOT BE HELD TO BE A VALID AG REEMENT . AS ARGUED BY THE LD. A.R., SINCE THE DOCUMENT DOES NOT BEAR THE SIGNATURE OF MR. Y. JOJI REDDY, WHO SOLD THE LAND TO THE ASSESSEE CANNOT BE HELD TO BE VALID DOCUMENT IN THE ABSENCE OF ACCEPTANCE FROM THE VENDEE . SIMILARLY, IN THE STATEMENT RECO RDED U/S 132(4) OF THE ACT MR. Y. JOJI REDDY THOUGH STATED THAT HE HAD PURCHASED THE LAND FOR A CONSIDERATION OF RS. 25 LAKHS PER ACRE ON AVERAGE , BUT THERE WAS NO MENTION OF THE ASSESSEE S WITH REGARD TO THE ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 16 SALE CONSIDERATION RECEIVED FROM THE PURCHASERS . THERE IS NO OTHER EVIDENCE OR MATERIAL AVAILABLE IN THE SEIZED DOCUMENT , AS PER THE ASSESSMENT ORDER OR THE LD. CIT(A)S ORDER TO SHOW THAT THE ASSESSEE S HA VE PAID THE CONSIDERATION OVER AND ABOVE THE SALE CONSIDERATION REGISTERED IN THE SALE DOCUMENT. SI MILARLY, T HERE WA S NO MENTION OF THE ASSESSEES IN THE AGREEMENT DATED DATED 7.7.2007 ENTERED INTO BETWEEN SMT. VIJAYA LAKSHMI, SMT. P. ANNAPURNAMMA AND MR. S. VENAKTESWARARAJU, WHICH IS ANOTHER LEAD DOCUMENTS FOR REOPENING THE ASSESSMENT. THE A.O. HAS RE CORDED THE REASONS FOR ISSUE OF NOTICE U/S 148 AS UNDER: DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS CONDUCTED U/S 132 OF THE I.T.ACT, 1961 ON 22. 8.2010 IN THE CASE OF M/S SAI LAXMI TOWNSHIP PVT. LTD., VISAKHAPATNAM, IT WAS FOUND THAT THE ASSESSEE ALONG WITH OTHERS HAS INVESTED CERTAIN AMOUNT IN PURCHASE OF LAND THROUGH SHRI Y.JOJI REDDY IN ANNAVARAM VILLAGE, VISAKHAPATNAM DIST., WITH THE HELP OF SHRI N.SURYANARAYANA REDDY, MANAGING DIRECTOR OF M/S SAI LAXMI TOWNSHIP PVT. LTD., VISAKHAPATNAM, DURI NG THE F.Y.2007 - 08. AS PER THE SEIZED MATERIAL MARKED ANN E XURE A/SLT/3/39, IT WAS FOUND THAT EACH ACRE WAS AGREED TO BE PURCHASED FOR RS.32 LAKHS. AS THE AMOUNTS INVESTED BY THE ASSESSEE WERE NOT OFFERED TO TAX, I HAVE REASON TO BELIEVE THAT THE UNACCOUNT ED INCOME INVESTED IN THE LANDS AT ANNAVARAM VILLAGE HAVE ESCAPED ASSESSMENT AND NOTICE U/S 148 IS REQUIRED TO BE ISSUED. 9 . PERUSAL OF THE REASONS RECORDED SHOWS THAT THE FOUNDATION FOR INITIATING PROCEEDINGS U/S 147 OF THE ACT WAS THE SEIZED MATERIAL MARKED AS ANNEXURE A/SLT/3/39 (PAGE NOS.87 TO 85) I.E. AN ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 17 AGREEMENT DATED 21.6.2007 FOR PURCHASE OF LAND OF 21.43 ACRES BY MR.JO JI REDDY FROM SHRI KANTI MOHANTI SURYA PRAKASA RAO AND 6 OTHERS . AS DISCUSSED EARLIER, THE SAID DOCUMENT DOES NOT BEAR THE SIGNATURE OF MR. Y. JOJI REDDY AND THERE WAS NO MENTION OF THE ASSESSEES IN THE SAID DOCUM ENT. AS DISCUSSED EARLIER THE AGREEMENT WA S SIGNED BY THE VENDORS AND DOES NOT BEAR THE SIGNATURE OF THE VENDEE , HENCE THE SAID AGREEMENT CANNOT BE HELD AS VALID AGREEMENT . THE SAID AGREEMENT WAS NEITHER SIGNED BY THE ASSESSES NOR THEIR NAMES WERE MENTIONED, THUS THE ASSESSES HAVE NEVER BEC O ME THE PARTIES FOR THE AGREEMENT AND NO OTHER MATERIAL IS AVAILABLE TO SHOW THAT THE ASSESSEES HAVE PAID THE CONSIDERATION OVER AND ABOVE THE CONSIDERATION RECORDED IN THE SALE DEED, THUS THERE IS NO MATERIAL IN THE CASE FOR FORMING A BELIEF TO HOLD THAT THE RE WAS AN ESCAPEMENT OF INCOME IN THE HANDS OF THE ASSESSEES. THERE WAS NO OTHER MATERIAL WHICH IS MADE AVAILABLE TO SUGGEST THAT THERE WAS AN ESCAPEMENT OF INCOME CHARGEABLE TO TAX IN THE CASE OF THE ASSESSEES FOUND DURING THE COURSE OF SEARCH IN THE PRE MISES OF M/S. SAI LAKSHMI TOWNSHIP PVT. LTD. HONBLE HIGH COURT OF ANDHRA PRADESH IN THE CASE OF CIT VS. NARESH KUMAR AGARWAL 369 ITR 171 (A.P.) HELD THAT IN THE ABSENCE OF AN Y INCRIMINATING MATERIAL ETC .. FOUND FROM THE PREMISES OF THE ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 18 ASSESSEE DURING THE COURSE OF SEARCH, STATEMENT OF ASSESSEE RECORDED U/S 132(4) OF THE ACT MAY NOT HAVE ANY EVIDENTIARY VALUE. AS EVIDENCED FROM THE RECORD, THE IMPUGNED DOCUMENT DATED 21.6.2007 SEIZED BY THE INCOME TAX DEPARTMENT DOES NOT BEAR THE SIGNATURE OF THE ASSESSEE S AND THEIR NAMES WERE ALSO NOT RECORDED IN THE DOCUMENT. HENCE, IN THE ABSENCE OF MENTION OF THE ASSESSES IN THE SAID DOCUMENT, THE AGREEMENT DATED 21.6.2007 HAS NO RELEVANCE IN TH E ASSESSEES CASE. THERE MUST BE MATERIAL /INFORMATION AVAILABLE TO THE A.O. TO HOLD THAT INCOME HAS ESCAPED ASSESSMENT. MERE SUSPICION, PRESUMPTION, SURMISES ARE NOT SUFFICIENT REASONS TO REOPEN THE ASSESSMENT. IN THE INSTANT CASE, NEITHER THERE WAS ANY INFORMATION NOR THERE WAS A MATERIAL AVAILABLE TO THE A.O. TO FORM A BELIEF TO HOLD THAT THERE WAS AN ESCAPEMENT OF INCOME IN THE HANDS OF THE ASSESSES. THEREFORE, WE DO NOT SEE ANY VALID REASON TO FORM A BELIEF BY THE A.O. TO HOLD THAT THE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. 10 . THE FACTS OF THE CASE SUGGEST THAT THE CASE LAWS RELIED UPON BY THE ASSESSEE IN THE CASE OF S. NARAYANAPPA (SUPRA) SUPPORTS THE ABOVE VIEWS. HONBLE SUPREME COURT IN THE CASE OF S.NARAYANAPPA IN 63 ITR 219 HELD THAT ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 19 AGAIN THE EXPRESSION 'REASON TO BELIEVE' IN SECTION 34 OF THE INCOME - TAX ACT DOES NOT MEAN A PURELY SUBJECTIVE SATISFACTION ON THE PART OF THE INCOME - TAX OFFICER. THE BELIEF MUST BE HELD IN GOOD FAITH : IT CANNOT BE MERELY A PRETENCE. TO PUT IT DIFFERENTLY, IT IS OPEN TO THE COURT TO EXAMINE THE QUESTION WHETHER THE REASONS FOR THE BELIEF HAVE A RATIONAL CONNECTION OR A RELEVANT BEARING TO THE FORMATION OF THE BELIEF AND ARE NOT EXTRANEOUS OR IRRELEVANT TO THE PURPOSE OF THE SECTION. TO THIS LIMITED EXTENT, THE ACTION OF THE INCOME - TA X OFFICER IN STARTING PROCEEDINGS UNDER SECTION 34 OF THE ACT IS OPEN TO CHALLENGE IN A COURT OF LAW (SEE CALCUTTA DISCOUNT CO. LTD. V. INCOME - TAX OFFICER, COMPANIES DISTRICT 1, CALCUTTA [1961] 41 ITR 191 ; [1961] 2 SCR 241 ) HONBLE APEX IN INCOME - TAX OFFICER. V. LAKHMANI MEWAL DAS([1976] 103 ITR 437 (SC) , COURT HELD THAT THE REASONS FOR THE FORMATION OF THE BELIEF MUST HAVE A RATIONAL CONNECTION WITH OR RELEVANT BEARING ON THE FORMATION OF THE BELIEF. RATIONAL CONNECTION POSTULATES THAT THERE MUST BE A DIRECT NEXUS OR LIVE LINK BETWEEN THE MATERIAL COMING TO THE NOTICE OF THE INCOME - TAX OFFICER AND THE FO RMATION OF HIS BELIEF THAT THERE HAS BEEN ESCAPEMENT OF THE INCOME OF THE ASSESSEE FROM ASSESSMENT IN THE PARTICULAR YEAR BECAUSE OF HIS FAILURE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS. IT IS NO DOUBT TRUE THAT THE COURT CANNOT GO INTO THE SUFFICIEN CY OR ADEQUACY OF THE MATERIAL AND SUBSTITUTE ITS OWN OPINION FOR THAT OF THE INCOME - TAX OFFICER ON THE POINT AS TO WHETHER ACTION SHOULD BE INITIATED FOR REOPENING ASSESSMENT. AT THE SAME TIME WE HAVE TO BEAR IN MIND THAT IT IS NOT ANY AND EVERY MATERIAL, HOWSOEVER VAGUE AND INDEFINITE OR DISTANT, REMOTE AND FARFETCHED, WHICH WOULD WARRANT THE FORMATION OF THE BELIEF RELATING TO ESCAPEMENT OF THE INCOME OF THE ASSESSEE FROM ASSESSMENT. THE FACT THAT THE WORDS 'DEFINITE INFORMATION' WHICH WERE THERE IN SECT ION 34 OF THE ACT OF 1922, AT ONE TIME BEFORE ITS AMENDMENT IN 1948, ARE NOT THERE IN SECTION 147 OF THE ACT OF 1961, WOULD NOT LEAD TO THE CONCLUSION THAT ACTION CAN NOW BE TAKEN FOR REOPENING ASSESSMENT EVEN IF THE INFORMATION IS WHOLLY VAGUE, INDEFINITE , FAR - FETCHED AND REMOTE. THE REASON FOR THE FORMATION OF THE BELIEF MUST BE HELD IN GOOD FAITH AND SHOULD NOT BE A MERE PRETENCE. HONBLE S UPREME COURT IN THE CASE OF INCOME TAX OFFICER. V. CHINTAN JADAVBHAI PATEL, [2018] 91 TAXMANN.COM 426 (SC) , DISMISSED THE SLP FILED BY THE REVENUE AGAINST ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 20 HIGH COURT RULING THAT IN ABSENCE OF ANY TANGIBLE MATERIAL AVAILABLE TO PRIMA FACIE SHOW THAT ASSESSEE HAD RECEIVED ANY MONEY IN CASH ON ACCOUNT OF SALE CONSIDERATION OF LAND, RE - OPENING NOTICE MERELY ON BASI S OF ONE SAUDA CHITTHI SEIZED FROM THIRD PARTY BUT NOT ACTED UPON, WAS UNJUSTIFIED . THE A.O. HAS RECORDED THE STATEMENT FROM THE ASSESSEE ON 17.9.2008 AND CONFRONTED THE EVIDENCE FOUND BY THE DEPARTMENT I.E. ANNEXURE A/SLT/3/39 AGREEMENT FOR PURCHASE OF L AND AT RS.32.50 LAKHS. THE ASSESSEE HAS DENIED HAVING THE KNOWLEDGE OF THE ABOVE DOCUMENT. THE ASSESSEE ALSO STATED THAT THEY HAVE PURCHASED THE LAND FOR A CONSIDERATION OF RS.4 LAKHS PER ACRE BUT NOT PAID ANY EXCESS AMOUNT OVER AND ABOVE THE REGISTERED SALE DEED. THE DOCUMENT RELIED ON BY THE AO HAS NO MENTION OR INFORMATION RELATING TO UNEXPLAINED INVESTMENT OR PASSING ON OF UNACCOUNTED PAYMENT TO THE VENDORS BY THE ASSESSE. THE SAID DOCUMENT BEARING NO.A/SLT/3/39 HAS NO RELEVANCE ON THE ASSESSEES IN AS MUCH AS THERE WAS NO MENTION OF THE ASSESSEES NAMES AND THEY ARE NOT PARTIES TO THE AGREEMENT. THEREFORE, WE HOLD THAT THE REOPENING OF ASSESSMENT U/S 147 OF THE ACT IS BAD IN LAW AND ACCORDINGLY, WE QUASH THE NOTICE ISSUED U/S 148 ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 21 OF THE ACT AND THE CONS EQUENT ASSESSMENT MADE U/S 147 R.W.S. 143(3) IS CANCELLED . 11. EVEN OTHERWISE, T HE ASSESSEE S HAVE PURCHASED 6.64 ACRES OF LAND FROM MR. Y. JOJI REDDY IN SURVEY NO.38/2 (4.64 ACRES) AND 26/2 (2 AC RES) FOR A CONSIDERATION OF RS.26,56,000/ - @ RS.4,0 0,000/ - PER ACRE. THE SALE DEED WAS REGISTERED AND DULY ACKNOWLEDGED BY THE VENDOR AND THE VENDEE. THERE WAS NO EVIDENCE F OUND DURING THE COURSE OF SEARCH IN THE PREMISES OF M/S. SAI LAKSHMI TOWNSHIP PVT. LTD. OR FROM THE STATEMENT RECORDED FROM MR. Y. JOJI REDD Y EVIDENCING THAT THE ASSESSEES HAVE PAID THE CONSIDERATION OVER AND ABOVE THE REGISTERED SALE DEED . THOUGH MR. Y. JOJI REDDY STATED TO HAVE ENTERED INTO AN AGREEMENT WITH SHRI KANTIM OHANTI SURYA PRAKASA RAO AND 6 OTHERS , THE SAID DOCUMENT WAS NOT SIGNED BY MR. Y. JOJI REDDY, HENCE, THE SAME CANNOT BE TAKEN AS A VALID PIECE OF EVIDENCE AND HAS NO RELEVANCE IN THE CASE OF ASSESSES. MR. Y. JOJI REDDY HAS ENTERED INTO AN OTHER AGREEMENT FOR PURCHASE OF LAND IN 26/2 FOR AN AGREED PRICE OF RS.30 LAKHS PER ACRE FROM SMT. P. ANNAPURNAMMA, SMT. P. VIJAYA LAKSHMI AND S. VENKATESWARA RAO BY AN AGREEME N T DATED 7.7.2007 AND THIS DOCUMENT ALSO HAS NO RELEVANCE IN THE CASE OF THE ASSESSEES . I T IS OBSERVED THAT MR. Y. JOJI REDDY HAS PURCHASED AND GOT IT ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 22 REGISTERED THE SA ID LAND BY GPA DATED 22.8.2007 FOR A CONSIDERATION OF RS. 5 LAKHS @ 2.5 LAKHS PER ACRE. MR. Y. JOJI REDDY HAS STATED IN HIS STATEMENT RECORDED U/S 132(4) OF THE ACT THAT HE H AD PAID AVERAGE PRICE OF RS. 25.00 LAKHS PER ACRE FOR PURCHASE OF LAND, THERE WAS NO MENTION OF THE ASSESSEES WITH REGARD TO THE SA LE CONSIDERATION , HENCE THE SAME CANNOT BE APPLIED IN THE CASE OF ASSESSEE TO DETERMINE THE PURCHASE CONSIDERATION AS UNEXPLAINED INVESTMENT. T HE AGREEMENT DATED 21.6.2007 AND 7.7.2007 HAS NO RELEVANCE IN T HE CASE OF THE ASSESSES AND T HE REVENUE FAILED TO ESTABLISH THAT THE ASSESSEE HAD PAID THE CONSIDERATION OVER AND ABOVE THE SALE CONSIDERATION REGISTERED IN THE SALE DEED. IN THE ABSENCE OF ANY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAS PAID THE CONSIDER ATION OVER AND ABOVE THE SALE CONSIDERATION, THERE IS NO CASE FOR MAKING ANY ADDITION REPRESENTING UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE. HONBLE SUPREME COURT IN THE CASE OF DAKESWARI COTTON MILLS LTD. VS. CIT 26 ITR 775 HELD THAT THE A.O. IS NOT ENTITLED TO MAKE PURE GUESS AND MAKE AN ASSESSMENT WITHOUT REFERENCE TO ANY EVIDENCE OR MATERIAL AND THERE MUST BE SOMETHING MORE THAN MERE SUSPICION TO SUPPORT THE ASSESSMENT, OTHERWISE THE SAME WOULD BE VOID IN LAW. SIMILARLY, IT IS HELD THAT UNL ESS OTHERWISE, THERE I S AN EVIDENCE TO ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 23 ESTABLISH THAT THE ASSESSEE HAS PAID OVER AND ABOVE THE SALE CONSIDERATION RECORDED IN THE REGISTERED SALE DEED, THE CONSIDERATION RECORDED IN THE SALE DEED HAS TO BE TAKEN AS CORRECT AND FINAL. IN THE INSTANT CASE TH ERE IS NO EVIDENCE TO SHOW THAT THE ASSESEES HAVE PAID THE EXCESS CONSIDERATION AND THE CASE LAW IN THE CASE OF CHINTAN JADAVBHAI PATEL,( [2018] 91 TAXMANN.COM 426 (SC) SUPRA IS SQUARELY APPLICABLE. IN THE INSTANT CASE, THE DEPARTMENT HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO SHOW THAT THE ASSESSEE S HA VE PAID THE CONSIDERATION OVER AND ABOVE THE SALE CONSIDERATION RECORDED IN THE SALE DEED. THE ASSESSEES ARE NOT THE PARTIES FOR THE AGREEMENTS ENTERED IN TO BY SHRI Y.JOJI REDDY WITH THE ORIGINAL OWNERS OF THE LAND. MR.JOJI REDDY ALSO DID NOT ADMIT THAT THE VENDEES HAVE PAID EXCESS CONSIDERATION AND THE DEPARTMENT FAILED TO PROVE THAT EXCESS CONSIDERATION HAS PASSED ON TO MR.JOJI REDDY IN THE SALE TRANSACTION. THEREFORE, WE HOLD THAT THERE IS NO CASE FOR MA KING ADDITION U/S 69 OF THE ACT AS UNEXPLAINED INVESTMENT AND THE ADDITION MADE BY THE A.O. IS UNSUSTAINABLE AND ACCORDINGLY DELETED AND THE ORDERS OF THE LOWER AUTHORITIES ARE SET A SIDE . ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 24 1 2 . IN THE RESULT, THE APPEAL OF THE ASSESSEE S IN APPEAL NO.S 178 TO 189 ARE ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON TH IS DAY OF 3 0 T H MAY , 201 8 . S D / - S D / - ( . . ) ( . ) ( D.S. SUNDER SINGH ) (V. DURGA RAO) / ACCOUNTANT MEMBER / JUDICIAL MEMBER /VISAKHAPATNAM /DATED : 3 0 .05.2018 VG/SPS ITA NO S . 178 - 189/VIZ/2017 ( KOVVURI ADI REDDY & OTHERS ) 25 COPY TO : 1. THE ASSESSEE S . 1. SATHI SURYANARAYANA REDDY, KUTUKULURU VILLAGE, EAST GODAVARI DIST. 2. KOVVURI ADI REDDY, D.NO. 59 - 19 - 12, JAGANNATHPURAM,KAKINADA BASTI, E.G. DISTRICT. 3. TADI CHINA VENKATA REDDY, ANAPARTHI VILLAGE,EAST GODAVARI DISTRICT 4. KOVVURI VIJAYA SUHDHARA REDDY, D.NO. 6 - 64, KONDUKURU VILLAGE,BIKKAVOLU MANDAL, EAST GODAVARI DIST. 5. SABBELLA V.V. SATYANARAYANA REDDY, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. 6. KOVVURI VENKATA RAMA REDDY, D.NO. 1 - 23/2, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. 7. TETALI SRINIVASA REDDY, ANAPARTHI VILLAGE,EAST GODAVARI DISTRICT. 8. MAILAVARAPU ANANTHA NAGA NARASIMHA SRIKANTH, ANAPARTHI VILLAGE, EAST GODAVARI DISTRICT. 9. NALLAMILLI VENKATA KRISHNA REDDY, D.NO. 2 - 210/1, ANAPARTHI VI LLAGE, EAST GODAVARI DISTRICT. 10. PADALA VEERA VENKATA SATYANARAYANA REDDY, ANAPARTHI VILLAGE, EAST GODAVARI DIST. 11. SATHI RAMA KRISHNA REDDY, D.NO. 9 - 105, ANAPARTHI, V ILLAGE,EAST GODAVARI DIST. 12. SABBELLAVENKATA REDDY, PALAKOL VILLAGE,WEST GODAVARI DIS TRICT 2. THE REVENUE - DCIT, CENTRAL CIRCLE - 1, VISAKHAPATNAM 3. THE P R . C O M M I S S I O N E R O F I N C O M E T A X ( C E N T R A L ) , V I S A K H A P A T N A M 4 . THE CIT(A) - 3 , V I S A K H A P A T N A M 5. T H E DR, ITAT, VISAKHAPATNAM 6 . GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM