Karuturi Vijaya Bharathi, , Guntur V. The Income Tax Officer, Ward-1(1), , Guntur

ITA 264/VIZ/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4962 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 09-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Income from undisclosed sources; Search and seizure; Principle of natural justice; Opportunity of cross examination; Fair market value; Corroborative evidences; Third party statement; Block assessment
• Section: 56; 50C

Judgement Text

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. 264 / VIZ /201 9 (ASST. YEAR : 20 11 - 12 ) SMT. KARUTURI VIJAYA BHARATHI, D.NO. 1 - 2 - 8, PRESIDENCY APARTMENT, 1 ST FLOOR, 1 ST LINE, JKC NAGAR, GUNTUR. V S . IT O , WARD - 1(1), GUNTUR . PAN NO. BLUPK 0068 C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SMT. SUMAN MALIK SR. DR DATE OF HEARING : 2 9 / 0 7 /201 9 . DATE OF PRONOUNCEMENT : 14 / 0 8 /201 9 . O R D E R PER V. DURGA RAO, JUDICIAL MEMBER TH IS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 1 , GUNTUR , DATED 11 / 12 /201 8 FOR THE ASSESSMENT YEAR 20 11 - 12 . 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE HAD PURCHASED A VACANT SITE TO THE EXTENT OF 384 SQ.YDS. SITUATED AT PEDAPALAKALURU VILLAGE, GUNTUR DISTRICT FROM SRI GANTA PUNNA RAO FOR A CONSIDERATION OF RS. 4,80,000/ - VIDE SALE DEED 2 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) NO. 5751/2010 , DATED 02/08/2010 . ON VERIFICATION , THE ASSESSING OFFICER HAS FOUND THAT SRO VALUE OF THE PROPERTY IS RS. 11,52,000/ - IN THE ASSESSMENT ORDE R , THE ASSESSING OFFICER HAS NOTED THAT HE RECEIVED INFORMATION IN THE CASE OF SRI GANTA PUNNA RAO THAT SRI GANTA PUNNA RAO DEPOSITED CASH IN HIS SB ACCOUNT , ANDHRA BANK, GUNTUR DURING THE F.Y. 2010 - 11 RELEVANT TO THE A.Y. 2011 - 12 , A SWORN STATEMENT WAS RECORDED ON 11/07/2011 . IN HIS STATEMENT, HE STATED THAT HE SOLD OUT A VACANT SITE TO THE EXTENT OF 384 SQ.YDS. IN JULY, 2010 FOR A CONSIDERATION OF RS. 8,850/ - PER SQ.YRD . , TOTALLING TO RS. 32,91,750/ - AND FILED HIS RETURN OF INCOME BY ADMITTING THE SAME FOR CAPITAL GAINS . 3. THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF INVESTMENT IN THE FIXED ASSET . THE ASSESSEE EXPLAINED THE SOURCE IN DETAIL AND SUBMITTED THAT OUT OF AGRICULTURAL INCOME EARNED BY HER DURING THE LAST COUPLE OF YEARS IS THE SOU R CE OF INVESTMENT OF RS. 5,75,000/ - . THE ASSESSING OFFICER AFTER CONSIDERING THE EXPLANATION OF THE ASSESSEE NOTED THAT THE ASSESSEE HAS PURCHASED THE PROPERTY FROM SRI GANTA PUNNA RAO FOR A SALE CONSIDERATION OF RS. 32,83,200/ - , THE SAME HAS BEEN ADMITTED BY THE SELLER - SRI GANTA PUNNA RAO AND HE OFFERED THE SAME FOR CAPITAL GAINS . ACCORDINGLY, THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT BY MAKING THE ADDITION OF 3 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) RS. 28,60,240/ - AS UN EXPLAINED SOURCE OF INVESTME NT AND ASSESSMENT IS COMPLETED. 4 . ON APPEAL, LD. CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER BY OBSERVING AS UNDER: - THE MAIN CONTENTION OF THE APPELLANT IS THAT THE AO HAS NOT BROUGHT ON RECORD ANY CORROBORATIVE EVIDENCE FOR MAKING PAYMENT TO SRI G. PUNNA RAO TOWARDS PURCHASE OF THE SAID SITE OVER AND ABOVE THE CONSIDERATION MENTIONED IN THE DEED. IN THIS REGARD, I HAVE PERUSED THE APPEAL FOLDER OF SRI G. PUNNA RAO FOR THE ASST. YEAR UNDER CONSIDERATION WHICH IS PENDING FOR DISPOSAL. SRI G. PUNNA RAO ADMITTED IN SWORN STATEMENT STATED THAT HE HAS RECEIVED CONSIDERATION AS PER AGREEMENTS ENTERED AND REGISTRATION WAS DONE AT LOWER PRICE. IT WAS ALSO ADMITTED BY HIM THAT ON MONEY RECEIVED BY VIRTUE OF AGREEMENTS WERE OFFERED TO TAX. IN THAT CASE, CERTAIN COPIES OF AGREEMENTS EVIDENCING ON MONEY PAYMENT RECEIVED BY SRI G. PUNNA RAO WERE ALSO PLACED ON RECORD. THOUGH IT IS A F ACT THAT NO AGREEMENT COPY WAS AVAILABLE REGARDING THE PRESENT APPELLANT, AVAILABILITY OF COPIES OF AGREEMENTS IN SUPPORT OF CLAIM MADE BY SRI G. PUNNA RAO FOR ACCEPTING ON MONEY PAYMENT FROM OTHER PERSONS GIVE CREDENCE TO THE STATEMENT GIVEN BY THE SAID S RI G. PUNNA RAO. THE SWORN STATEMENT GIVEN IS BACKED BY THE AGREEMENT COPIES PARTLY. THE COMMITMENT OF SRI G. PUNNA RAO RESULTED IN FILING RETURN AND OFFERING CAPITAL GAINS TO TAX. THIS IS THE CORROBORATIVE EVIDENCE WHICH ONE CAN HAVE IN THE CASE WHERE CAS H TRANSACTIONS WERE MADE BETWEEN THE TWO PARTIES. IN THIS CASE, THE OTHER PARTY ACCEPTED THE RECEIPT OF ON MONEY AND PAID TAXES. FILING RETURN AND SIGNING THE VERIFICATION BY SRI G. PUNNA RAO CANNOT BE TAKEN AS A DUMB DOCUMENT. THIS DOCUMENT SHOWS THE TRAN SACTION BETWEEN THE APPELLANT AND SRI G. PUNNA RAO WITH REGARD TO PURCHASE OF SITE BY THE APPELLANT. AS THERE IS NEXUS, THE STATEMENT GIVEN BY THE SELLER HAS TO BE CONSIDERED AS A GENUINE ONE FOR THE REASON THAT THE SAID AMOUNT WAS OFFERED TO TAX BY HIM. I N THIS CONNECTION ONE HAS TO NOTE THAT THE ON - MONEY PAYMENT IS A CASH TRANSACTION AND PRIVY TO THE PARTIES CONCERNED. ONE OF THE PARTIES IN THIS TRANSACTION, CATEGORICAL IN HIS STATEMENT, THAT HE HAS RECEIVED CASH OVER AND ABOVE THE REGISTRATION VALUE. HEN CE, THERE IS NO REQUIREMENT TO BRING ANY OTHER EVIDENCE AS SOUGHT FOR. IN VIEW OF THIS, THE GROUNDS RAISED ARE DISMISSED. 4 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) 5 . ON BEING AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THIS TRIBUNAL. 6 . LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER IS NOT SUPPORTED BY ANY EVIDENCE EXCEPT THE STATEMENT GIVEN BY SRI GANTA PUNNA RAO, WHO SOLD THE PROPERTY TO THE ASSESSEE. HE FURTHER SUBMITTED THAT THE ASSESSING O FFICER , BASED ON THE STATEMENT GIVEN BY SRI GANTA PUNNA RAO AND FOUND SOME CASH DEPOSITS IN THE BANK ACCOUNT OF SRI GANTA PUNNA RAO, HAS COME TO A CONCLUSION THAT THE CASH AVAILABLE IN THE BANK IS THE SALE CONSIDERATION PAID BY THE ASSESSEE , WITHOUT THERE BEING ANY BASIS . HE FURTHER SUBMITTED TH A T WHEN THERE IS A REGISTERED DOCUMENT WHICH IS CLEARLY MENTIONED THE SALE PRICE, ADDITION CANNOT BE MADE BASED ON THE STATEMENT GIVEN BY THE THIRD PARTY WITHOUT ALLOWING THE ASSESSEE TO CROSS - EXAMINE THE CONCERNED THIRD PARTY. HE FURTHER SUBMITTED THAT SO FAR AS PURCHASE IS CONCERNED, THE VALUE MENTIONED IN THE SALE DOCUMENT IS FINAL . T HE AMENDMENT MADE BY THE LEGISLATURE BROUGHT TO THE STATUTE BOOK U/SEC. 56 (VII)(B) APPLIES ONLY FOR THE A.Y. 2014 - 15 AND NOT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. HE RELIED ON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SRI VENKATA RAMA SAI DEVELOPERS VS. DCIT IN ITA NO. 453/VIZ/2012, DATED 06/11/2015 . 5 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) 7 . ON THE OTHER HAND, LD.DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8 . WE HAVE HEARD BOTH THE SIDES, PERUSED THE MATERIAL AVAILABLE ON RECORD AND ORDERS OF THE AUTHORITIES BELOW. 9 . THE CASE OF THE ASSESSEE IS THAT SHE PURCHASED A VACANT SITE ADMEASURING 384 SQ.YDS. SITUATED AT PEDAPALAKALURU VILLAGE, GUNTUR DISTRICT FROM SRI GANTA PUNNA RAO FOR A CONSIDERATION OF RS. 4,80,000/ - VIDE SALE DEED NO. 5751/2010, DATED 02/08/2010 . THE CASE OF THE ASSESSING OFFICER IS THAT HE RECEIVED INFORMATION FROM D DCIT (INVT.) , GUNTUR THAT SRI GANTA PUNNA RAO IN HIS SAVINGS BANK ACCOUNT WITH ANDHRA BANK , GUNTUR THERE ARE CERTAIN CASH DEPOSITS . WHEN HE WAS ASKED, IT WAS SUBMITTED THAT HE SOLD THE PROPERTY TO THE EXTENT OF 384 SQ.YDS. FOR A CONSIDERATION OF RS.32, 91 , 750 / - TO THE ASSESSEE AND OFFERED THE SAME FOR CAPITAL GAINS AND ACCORDINGLY ASSESSMENT IN HIS CASE IS COMPLETED . THEREFORE, THE ASSESSING OFFICER IS OF THE OPINION THAT THE ASSESSEE PURCHASED THE PROPERTY FOR RS. 32,91,750/ - AND SHOWN THE PURCHASE PRICE IN THE DOCUMENT AS RS. 4,80,000/ - THEREFORE, THE REMAINING BALANCE AMOUNT OF RS. 28,60,240/ - TREATED AS UNEXPLAINED INVESTMENT OF THE ASSESSEE AND ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. ON APPEAL, LD. CIT(A) CONFIRMED BY THE ORDER OF THE ASSESSING OFFICER. BY CLOSE SCRUTINY OF THE 6 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) ASSESSMENT ORDER AND THE LD. CIT(A)S ORDER, WE FIND TH A T THE ADDITION MADE BY THE ASSESSING OFFICER BASED ON THE CASH DEPOSITS MADE BY THE SELLER - SRI GANTA PUNNA RAO IN HIS SB ACCOUNT WITH ANDHRA BANK, GUNTUR . IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAS NOT MENTIONED WHAT IS THE AMOUNT DEPOSITED IN THE BANK ACCOUNT OF SRI GANTA PUNNA RAO, THE DATES ON WHICH DEPOSITS ARE MADE A ND WHAT IS THE TOTAL AMOUNT . IT IS ALSO NOT CLEAR FROM THE ASSESSMENT ORDER THAT WHEN ASSESSEE HAS PAID AN AMOUNT OF RS. 28,60,240/ - TO THE SELLER - SRI GANTA PUNNA RAO . IT IS THE CASE OF THE ASSESSING OFFICER THAT WHEN QUESTIONED SRI GANTA PUNNA RAO ABOUT THE SOURCE OF DEPOSITS , HE OFFERED THE SAME FOR CAPITAL GAINS AND EXPLAINED THE SOURCE . EXCEPT THE STATE M ENT GIVEN BY SRI GANTA PUNNA RAO, NO OTHER EVIDENCE IS AVAILABLE ON RECORD TO SUGGEST THAT THE ASSESSEE PAID OVER AND ABOVE THE SALE CONSIDERAT ION RECORDED IN THE SALE DEED NO. 5751/2010 DATED 02/08/2010 . WHEN THERE IS A REGISTERED SALE DEED, WHICH CLEARLY SHOWS THE SALE CONSIDERATION, PRIMA FACIE IT HAS TO BE BELIEVED THAT THE ASSESSEE HAS PAID THE SALE CONSIDERATION WHICH IS MENTIONED IN THE DOCUMENT, IF AT ALL , THE ASSESSING OFFICER HAS NOT ACCEPTED AND OPINED THAT THE AMOUNT PAID IS MORE THAN THE SALE CONSIDERATION MENTI ON ED IN THE DOCUMENT , IT IS THE DUTY OF THE ASSESSING OFFICER TO PROVE THAT THE AMOUNT PAID BY THE ASSESSEE IS 7 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) MORE THAN WHAT HE STATED IN THE SALE DEED WITH RELEV A NT EVIDENCE. IN THE PRESENT CASE, EXCEPT STATEMENT OF SRI GANTA PUNNA RAO, NO OTHER EVIDENCE IS AVAILABLE ON RECORD THAT THE ASSESSEE HAS PAID THE AMOUNT MORE THAN THE SALE CONSIDERATION . THAT APART, WHEN THE STATEMENT OF THE SELLER IS SOLELY RELIED ON BY THE ASSESSING OFFICER, IT IS THE DUTY OF THE ASSESSING OFFICER TO ASK THE ASSESSEE THAT THE SELLER HAS STATED TH A T HE RECEIVED SALE CONSIDERATION MOR E THAN THE DOCUMENTED PRICE AND ASK THE ASSESSEE IF HE WANTED TO CROSS EXAMINE , TO PROVIDE AN OPPORTUNITY TO CROSS EXAMINE THE SELLER . IN THE PRESENT CASE, NO SUCH OPPORTUNITY HAS BEEN GIVEN BY THE ASSESSING OFFICER TO THE ASSESSEE. IN SPITE OF THAT , THE ASSESSEE HAS SUBMITTED BEFORE THE ASSESSING OFFICER THAT SHE HAS PURCHASED THE PROPERTY FOR RS. 4,80,000/ - . IN THIS CONTEXT, THE HON'BLE SUPREME COURT IN THE CASE OF M/S. ANDAMAN TIMBER INDUSTRIES VS. CCE IN CIVIL APPEAL NO. 4228/2006, BY ORDER DATED 02/09/2015 HAS OBSERVED THAT NOT ALLOWING THE ASSESSEE TO CROSS - EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED 8 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) UPON THE STATEMENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN T HE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS - EXAMINE, THE ADJUDICATING AUTHORITY DID NOT GRANT THIS OPPORTUNITY TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUDICATING AUTHORITY HE HAS SPECIFICALLY MENTIONED THAT SUCH AN OPPORTUNITY WAS SOUGHT BY THE ASSESSEE. HOWEVER, NO SUCH OPPORTUNITY WAS GRANTED AND THE AFORESAID PLEA IS NOT EVEN DEALT WITH BY THE ADJUDICATING AUTHORITY. AS FAR AS THE TRIBUNAL IS CONCERNED, WE FIND THAT REJECTIO N OF THIS PLEA IS TOTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED THAT CROSS - EXAMINATION OF THE SAID DEALERS COULD NOT HAVE BROUGHT OUT ANY MATERIAL WHICH WOULD NOT BE IN POSSESSION OF THE APPELLANT THEMSELVES TO EXPLAIN AS TO WHY THEIR EX - FACTORY PRICES REMAIN STATIC. IT WAS NOT FOR THE TRIBUNAL TO HAVE GUESS WORK AS TO FOR WHAT PURPOSES THE APPELLANT WANTED TO CROSS - EXAMINE THOSE DEALERS AND WHAT EXTRACTION THE APPELLANT WANTED FROM THEM . IN THE PRESENT CASE, WHEN THE ASSESSING OFFICER A S KED THE ASSESSEE IN RESPECT OF SALE CONSIDERATION PAID TO THE SELLER, THE ASSESSEE SPECIFICALLY STATED THAT S HE ONLY PAID SALE CONSIDERATION WHAT WAS MENTIONED IN THE DOCUMENT . IF THE ASSESSING OFFICER WANTED TO RELY ON THE STATEMENT GIVEN BY THE SELLER O F THE PROPERTY, HE OUGHT TO HAVE BEEN GIVEN OPPORTUNITY TO CROSS EXAMINE THE SELLER THOUGH 9 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) THE ASSESSEE HAS NOT ASKED FOR CROSS - EX A MINATION . W HEN THE ASSESSING OFFICER RELYING ONLY ON THE STATEMENT OF THE SELLER, THE ONUS IS LIES WITH THE ASSESSING OFFICER TO DISCHARGE THE BURDEN ON HIM . IN THE PRESENT CASE, THE ASSESSING OFFICER F A ILED TO DISCHARGE ONUS CASTED UPON HIM TO SUBSTANTIATE HIS CASE. INSOFAR AS , LD.CIT(A) IS CONCERNED, HE HAS OBSERVED THAT THOUGHT THERE IS NO AGREEMENT COPY AVAILABLE PERTINENT TO THE ASSESSEE, HOWEVER, THERE ARE OTHER AGREEMENT S AVAILABLE WITH THE SELLER OF THE PROPERTY , THEREFORE SELLER IS HAVING A HABIT OF TAKING ON MONEY PAYMENTS AND ON THE BAS IS OF STATEMENT GIVEN BY HIM, CAME TO A CONCLUSION THAT THE ASSESSEE HAS PAID ON MONEY. WE FIND THAT THE OBSERVATION MADE BY THE LD. CIT(A) IS BASELESS AND IT CANNOT SURVIVE IN JUDICIAL SCRUTINY FOR THE REASON THAT THERE IS NO AGREEMENT IN RESPECT OF THE ASSESSEE, HOWEVER, HE FURTHER MENTIONED THAT THE SELLER IS A HABIT OF TAKING ON MONEY, THEREFORE HE CAME TO A CONCLUSION THAT ASSESSEE ALSO PAID ON MONEY. THE ABOVE OBSERVATION GIVEN BY THE LD. CIT(A) IS WITHOUT ANY BASIS AND CAN NOT BE ACCEPTED. FROM THE OBSERVATIONS OF THE LD. CIT(A), IT IS VERY CLEAR THAT THE SELLER OF THE PROPERTY - SRI GANTA PUNNA RAO IS ACCEPTING ON MONEY FROM OTHER PERSONS, THEREFORE, THE DEPOSITS MADE IN HIS BANK ACCOUNT , CANNOT BE CONCLUDED THAT THE AMOUNT PAID BY THE ASSESSEE. IT CAN BE A L S O SAID THAT THE AMOUNT 10 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) DEPOSITED IN THE BANK ACCOUNT IS ANYBODYS AMOUNT BECAUSE NO DETAILS ARE AVAILABLE WITH REGARD TO WHAT IS THE AMOUNT RECEIVED AND WHAT IS THE AMOUNT DEPOSIT. UNDER THESE FACTS AND CIRCUMSTANCES OF THE CASE , WE ARE OF THE OPINION THAT THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(A) CANNOT SURVIVE. UNDER SIMILAR CIRCUMSTANCES, THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SRI VENKATA RAMA SAI DEVELOPERS (SUPRA) HAS CONSIDERED THE VARIOUS JUDICIAL PRECEDENTS AND HAS HELD THAT IN THE ABSENCE OF PROPERTY ENQUIRY AND SUFFICIENT EVIDENCE, ADDITION CANNOT BE MADE BASED ON THE ADMISSION BY THE THIRD PARTY . FOR THE SAKE OF CONVENIENCE, THE RELEVANT PORTION OF THE ORDER IS EXTRACTED A S UNDER : - 15. IN THE PRESENT CASE ON HAND, EXCEPT LOOSE SHEET FOUND IN THE PREMISES OF THIRD PARTY AND ADMISSION MADE BY THE THIRD PARTY IN THEIR ASSESSMENT PROCEEDINGS, THERE IS NO OTHER EVIDENCE ON RECORD TO PROVE THAT ON MONEY IS PAID. THE ASSESSING OFFICER, WITHOUT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THAT ON MONEY IS EXCHANGED BETWEEN THE PARTIES, MERELY HARPING UPON THE LOOSE SHEET AND THE THIRD PARTY ADMISSION, WHICH CANNOT BE CONSIDERED AS CONCLUSIVE EVIDENCE AGAINST THE ASSESSEE TO BRING THE ON MONEY TO TAX AS UNDISCLOSED INCOME. THE A.O. IS REQUIRED TO BRING FURTHER EVIDENCE ON RECORD TO SHOW THAT ACTUAL ON MONEY IS EXCHANGED BETWEEN THE PARTIES, BUT LITERALLY FAILED TO DO SO. THE A.O. DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO THE VALUE OF THE PR OPERTY INSTEAD, MERELY RELIED UPON THE STATEMENT GIVEN BY THE PURCHASERS OF THE PROPERTY, WHICH IS NOT CORRECT. FURTHER, THERE IS NO PROOF OF ORIGIN AND DESTINATION OF ON MONEY. THE A.O. FAILED TO PROVE THE SOURCE OF THE PURCHASERS AS TO HOW THE MONEY WAS ARRANGED AND ALSO FAILED TO PROVE THE DEPLOYMENT OF UNACCOUNTED MONEY BY THE VENDEE FIRM BY ANY FORM OF EVIDENCE. UNDER THESE CIRCUMSTANCES, BASED ON PAPER JOTTINGS AS 11 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) CONCLUSIVE EVIDENCE ON MONEY CANNOT BE BROUGHT TO TAX AS INCOME FROM UNDISCLOSED SOURCES . 16. NOW COMING TO THE OBSERVATIONS OF THE CIT(A). THE CIT(A) WHILE CONFIRMING THE ASSESSMENT ORDER, OBSERVED THAT IT IS UNCOMMON THAT ON MONEY PAID/RECEIVED IN REAL ESTATE TRANSACTIONS. THE CIT(A) FURTHER OBSERVED THAT IT IS A WELL KNOWN FACT AND OPEN SECRET THAT THERE IS A LOT OF BLACK MONEY INVOLVED IN THE REAL ESTATE TRANSACTIONS AND PARTICULARLY CASH COMPONENT IS MORE IN THE LANDS SITUATED IN OUTSKIRTS OF THE BIG CITIES. WE DO NOT AGREE WITH THE FINDINGS OF THE CIT(A) FOR THE REASON THAT ASSESSMENTS CANNO T BE MADE OR TAXES CANNOT BE LEVIED ON THE BASIS OF THE THEORY OF PROBABILITY. TO TAX ANY PARTICULAR INCOME, THERE MUST BE SOME MATERIAL EVIDENCE TO SHOW THAT THE INCOME IS ACCRUED OR ARISES TO THE PARTICULAR ASSESSE. UNLESS, THERE IS A PROOF, THE DEPARTM ENT CANNOT COLLECT THE TAX ON THE ADMISSION OF THE TAX PAYER ALONE. THE CIT, AT ONE STAGE HELD THAT THERE IS NO NEED OF DIRECT OR PRIMARY EVIDENCE, EVEN IF THERE IS A CIRCUMSTANTIAL EVIDENCE, BASED ON CIRCUMSTANTIAL EVIDENCE, THE A.O. COME TO THE CONCLUSI ON AND DECIDE THE ISSUE ACCORDINGLY. WE DO NOT AGREE WITH THE STAND TAKEN BY THE CIT(A), FOR THE SIMPLE REASON THAT TO TAX ANY PARTICULAR RECEIPT, PRIMARY EVIDENCE IS VERY MUCH NECESSARY AND UNLESS THERE IS A PRIMARY EVIDENCE, CIRCUMSTANTIAL EVIDENCE CANN OT BE CONSIDERED AS A CONCLUSIVE EVIDENCE AGAINST ANY PERSON TO TAX ANY PARTICULAR RECEIPT. CIRCUMSTANTIAL EVIDENCE PLAYS AN IMPORTANT ROLE IN INCOME TAX PROCEEDINGS, WHERE THE A.O. NEEDS TO ESTIMATE THE INCOME BASED ON SOME EVIDENCE AVAILABLE FOR PART OF THE YEAR, THEN REMAINING PERIOD ESTIMATION CAN BE MADE BASED ON EVIDENCE AVAILABLE. BUT, PAYMENT/RECEIPT OF ON MONEY IS PURELY A FACTUAL ISSUE WHICH CANNOT BE DECIDED BASED ON CIRCUMSTANTIAL EVIDENCE. 17. NOW COMING TO THE CASE LAWS RELIED UPON BY THE ASSESSEE COUNSEL, THE ASSESSEES COUNSEL AT THE TIME OF HEARING RELIED UPON PLETHORA OF CASE LAWS IN SUPPORT OF HIS CONTENTIONS. 18. THE A.R. RELIED UPON ITAT HYDERABAD `A BENCH DECISION IN THE CASE OF SMT. K.V. LAKSHMI SAVITRI DEVI VS. ACIT (2012) 148 TT J 517, WHEREIN THE TRIBUNAL UNDER SIMILAR CIRCUMSTANCES HELD AS UNDER: - ADMITTEDLY THERE WAS NO SEARCH ACTION IN THE CASE OF THE ASSESSEE. IT IS A LOOSE SLIP CONTAINING CERTAIN ENTRIES RECORDING THE PAYMENT WHICH WAS FOUND AT THE PREMISES OF CRK. IT DOES N OT CONTAIN EITHER DATE OF PAYMENT OR NAME OF THE PERSON WHO HAS MADE THE PAYMENT. ACCORDING TO THE DEPARTMENT, CRK DENOTES C. RADHA KRISHNA KUMAR AND KRK DENOTES K. RAJANI KUMARI. HOWEVER, NO NAME OF THE ASSESSEE WAS FOUND IN THE LOUSE SHEET. 12 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) THE PROPERTY WAS PURCHASED FROM P W/C CRK FOR A DISCLOSED CONSIDERATION OF PS. 65 LAKHS BY THE ASSESSEE. THE PROPERTY HAS BEEN REGISTERED AND THE SALE DEED WAS EXECUTED FOR A CONSIDERATION OF PS. 65 LAKHS ON 21ST AUG., 2006 WHICH CONSIDERATION HAS BEEN ACCEPTED BY THE STATE REGISTRATION AUTHORITIES. FURTHER NOTHING WAS BROUGHT ON RECORD TO SHOW THAT THERE WAS ANY INVOKING OF S. 50C WHILE COMPLETING THE ASSESSMENT IN THE CASE OF THE SELLER. THERE IS NO EVIDENCE OTHER THAN THE SEIZED MATERIAL MARKED AS 'A/CRK104' WHERE RE LEVANT ENTRIES ARE MADE AT RS. 1,65,00,000. THE SEIZED MATERIAL WAS NOT FOUND AT THE PREMISES O THE ASSESSEE AND THERE IS NO CORROBORATIVE MATERIAL TO SUGGEST THAT THE ASSESSEE HAS ACTUALLY PAID RS. 1.65 RORES TOWARDS PURCHASE CONSIDERATION OF THE PROPERT Y. THE ASSESSEE AND HER BROTHER CATEGORICALLY DENIED THE PAYMENT OF ANY MONEY OVER AND ABOVE RS. 65 LAKHS. THE AO PLACED HI RELIANCE ON THE STATEMENT OF 5, WHO IS A THIRD PARTY. THE EVIDENCE BROUGHT ON RECORD BY THE DEPARTMENT IS NOT ENOUGH TO FASTEN ADDIT IONAL TAX LIABILITY ON THE ASSESSEE. AS SEEN FROM THE ABOVE DOCUMENT THIS IS JUST A HANDWRITTEN LOOSE DOCUMENT AND THE HANDWRITING IS ALSO NOT OF THE ASSESSEE AND THE LOOSE DOCUMENT WAS FOUND AT THE PREMISES OF A THIRD PARTY. THE BURDEN IS ON THE DEPARTMEN T TO PROVE CONCLUSIVELY THAT THE LOOSE DOCUMENT BELONGS TO THE ASSESSEE. THERE IS NO PRESUMPTION IN LAW THAT THE ASSESSEE HAS ACTUALLY PAID RS. 165 LAKHS TOWARDS PURCHASE OF THE PROPERTY. THE UNDISCLOSED INCOME IN THIS CASE IS TO BE COMPUTED BY THE AO ON T HE BASIS OF THE AVAILABLE MATERIAL ON RECORD. IT SHOULD NOT BE BASED ON CONJECTURES AND SURMISES. AS OF NOW, THE MATERIAL CONSIDERED BY THE AO FOR MAKING THE ADDITION OF PS. 1 CRORE IS SEIZED MATERIAL MARKED A 'A/CRK104' AND THE STATEMENT OF S. THIS LOOSE SHEET FOUND AT THE PREMISES OF CRK IS NOT ENOUGH MATERIAL TO SUSTAIN THIS ADDITION. THE SEIZED MATERIAL FOUND DURING THE COURSE OF SEARCH AND THE STATEMENT RECORDED ARE SOME PIECE OF EVIDENCE TO MAKE THE ADDITION. THE AO HAS TO ESTABLISH THE LINK BETWEEN T HE SEIZED MATERIAL AND OTHER BOOKS OF ACCOUNT TO THE ASSESSEE. THE SEIZED MATERIAL AND STATEMENT OF CRK CANNOT BE CONCLUSIVE EVIDENCE TO MAKE THIS ADDITION. THE ENTIRE CASE HEREIN IS DEPENDING UPON THE RULE OF EVIDENCE. THERE IS NO CONCLUSIVE PRESUMPTION T O SAY THAT ACTUAL CONSIDERATION PASSED ON BETWEEN THE PARTIES IS ACTUALLY RS. 165 LAKHS. THE ASSESSEE AS WELL AS HER BROTHER STATED IN THEIR RESPECTIVE STATEMENTS THAT THE CONSIDERATION PASSED BETWEEN THE PARTIES IS ONLY RS. 65 LAKHS. IN SPITE OF THIS THE AO PROCEEDED TO CONCLUDE THAT THE SEIZED MATERIAL IS CONCLUSIVELY REFLECTING THE PAYMENT OF CONSIDERATION AT RS. 165 LAKHS. THE DEPARTMENT HEREIN I REQUIRED TO ESTABLISH THE NEXUS OF THE SEIZED MATERIAL TO THE ASSESSEE. AS STATED EARLIER THERE IS NO DATE A ND NAME OF THE ASSESSEE. THE ALLEGATION OF THE DEPARTMENT IS THAT THE SEIZED MATERIAL DENOTES THE PAYMENT MADE BY THE ASSESSEE TO THE PURCHASER FOR PURCHASE OF THE PROPERTY. HOWEVER, NO SUCH NARRATION OR NAME OF THE ASSESSEE WAS FOUND IN THE SEIZED MATERIA L. THE DEPARTMENT IS NOT 13 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) ABLE TO UNEARTH ANY DOCUMENT OR MATERIAL OR ANY CORROBORATIVE MATERIAL TO SHOW THAT THE ASSESSEE HEREIN ACTUALLY PAID PS. 165 LAKHS FOR PURCHASE OF THE PROPERTY. THE DEPARTMENT HAS NOT BROUGHT ON RECORD THE DATE ON WHICH THE PAYMEN T WAS MADE AND THE SOURCE FROM WHICH II IS PAID AND/OR ANY DETAILS OF BANK ACCOUNT FROM WHERE THE CASH WAS WITHDRAWN. WITHOUT ANY OF THESE DETAILS, THE DEPARTMENT HAS TAKEN A VIEW THAT THE ASSESSEE HAS PAID PS. 165 LAKHS FOR PURCHASE OF THE PROPERTY. THE D EPARTMENT CANNOT DRAW INFERENCE ON THE BASIS OF SUSPICION, CONJECTURES AND SURMISES. SUSPICION, HOWEVER STRONG CANNOT TAKE PLACE OF MATERIAL IN SUPPORT OF THE FINDING FROM THE AO. THE AO SHOULD ACT IN A JUDICIAL MANNER, PROCEED WITH JUDICIAL SPIRIT AND COM E TO A JUDICIAL CONCLUSION. THE AO IS REQUIRED TO ACT FAIRLY AS A REASONABLE PERSON AND NOT ARBITRARILY AND CAPRICIOUSLY. THE ASSESSMENT MADE SHOULD HAVE ENOUGH MATERIAL AND IT SHOULD STAND ON ITS OWN LEGS. THE BASIS FOR ADDITION CANNOT BE ONLY THE LOOSE S HEET OR A THIRD PARTY STATEMENT. IN THE ABSENCE OF CORROBORATIVE MATERIAL, AND/OR CIRCUMSTANTIAL EVIDENCE, THE ADDITION CANNOT BE SUSTAINED. THUS, NO ADDITION CAN BE MADE ON A DUMB DOCUMENT AND NOTING ON LOOSE SHEET. IT SHOULD BE SUPPORTED BY THE EVIDENCE ON RECORD AND THE EVIDENCE ON RECORD IS NOT SUFFICIENT TO SUPPORT THE REVENUE'S ACTION. IN A BLOCK ASSESSMENT UNDISCLOSED INCOME HAS TO BE DETERMINED OR THE .BASIS OF THE MATERIAL AND EVIDENCE DETECTED IN THE COURSE OF THE SEARCH ACTION. THE CIRCUMSTANCES SURROUNDING THE CASE ARE NOT STRONG ENOUGH TO JUSTIFY THE ADDITION MADE BY THE DEPARTMENT. THE BURDEN OF PROVING THE ACTUAL CONSIDERATION IN THE PURCHASE OF PROPERTY IS ON THE REVENUE. CONSIDERING THE ENTIRE FACTS OF THE CASE, THE REVENUE HAS FAILED TO DIS CHARGE ITS DUTY, INSTEAD MADE UP A CASE ON SURMISES AND CONJECTURES WHICH CANNOT BE ALLOWED. UNDER THESE CIRCUMSTANCES, THERE IS NO REASON TO CONFIRM THE ADDITION OF RS. 100 LAKHS TOWARDS ON - MONEY PAYMENT. ACCORDINGLY, THE ADDITION OF RS. 100 LAKHS IS DELE TED. CIT VS. P.V. KALYANASUNDARAM (2006) 203 CTR (MAD) 449: (2006) 282 ITR 259 (MAD) RELIED ON 19. THE HONBLE A.P. HIGH COURT IN THE CASE OF SMT. K.V. LAKSHMI SAVITRI DEVI VS. ACIT IN ITTA 563 OF 2011, UPHELD THE ORDER OF THE ITAT HYDERABAD BENCH. THE H ONBLE HIGH COURT WHILE, DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE HELD AS UNDER: WE ARE OF THE VIEW THAT THE TRIBUNAL HAS RIGHTLY HELD THAT THE REGISTERED DOCUMENT DT. 21.8.2006 UNDE4R WHICH THE RESPONDENT PURCHASED THE ABOVE PROPERTY SHOWED THAT ONLY RS.65.00 LAKHS WAS PAID TO THE VENDOR BY THE RESPONDENT; THAT THERE WAS NO EVIDENCE TO SHOW THAT THE RESPONDENT HAD PAID RS.1.00 CRORE IN CASH ALSO TO THE VENDOR; THAT NO PRESUMPTION OF SUCH PAYMENT OF RS.1.00 CRORE IN CASH CAN BE DRAWN ON THE BASIS OF AN ENTRY FOUND IN A DIARY/LOOSE SHEET IN THE PREMISES OF C. RADHA KRISHNA KUMAR WHICH I S 14 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) NOT IN THE RESPONDENTS HANDWRITING AND WHICH DID NOT CONTAIN THE NAME OF THE RESPONDENT OR ANY DATE OF PAYMENT OR THE NAME OF THE PERSON WHO MADE THE PAYMENT. IT RIGHTLY HELD THAT THE REVENUE FAILED TO ESTABLISH THE NEXUS OF THE SEIZED MATERIAL TO THE R ESPONDENT AND HAD DRAWN INFERENCES BASED ON SUSPICION, CONJECTURES AND SURMISES WHICH CANNOT TAKE THE PLACE OF PROOF. WE ALSO AGREE WITH THE TRIBUNAL THAT THE ASSESSING OFFICER DID NOT CONDUCT ANY INDEPENDENT ENQUIRY RELATING TO THE VALUE OF THE PROPERTY PURCHASED AND THE BURDEN OF PROVING THE ACTUAL CONSIDERATION IN THE PURCHASE OF THE PROPERTY IS ON THE REVENUE AND IT HAD FAILED TO DISCHARGE THE SAID BURDEN. 20. THE A.R. FURTHER RELIED UPON THE ITAT AHMEDABAD `C' BENCH DECISION IN THE CASE OF JAWAHARBHA I ATMARAM HATHIWALA VS. ITO REPORTED IN (2010) 128 TTJ 36, WHEREIN UNDER SIMILAR SET OF FACTS, THE HONBLE ITAT DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AS UNDER: THE ASSESSEE HAS CLAIMED TO HAVE MADE PAYMENT OF RS.1,01,687/ - ONLY UPTO 31 ST MARCH, 1999 AND HAS CONSISTENTLY TAKEN THE STAND THAT IT HAS NOT PAID BALANCE AMOUNT OF RS.3,81,414/ - AS STATED IN THE SEIZED DOCUMENT. NO EVIDENCE COULD BE BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT IN FACT THE ASSESSEE HAD PAID THE AMOUNT OF RS.3,81,414/ - TO OD . NO DOCUMENT CONTAINING SIGNATURE OF THE ASSESSEE OR HANDWRITING OF THE ASSESSEE TO CORROBORATE THE ABOVE MAKING OF PAYMENT BY THE ASSESSEE WAS FOUND DURING THE COURSE OF THE SEARCH. EVEN AT TIME OF CROSS EXAMINATION BY THE ASSESSEE THE PARTNER OF OD CO ULD NOT PRODUCE ANY EVIDENCE THAT THE AMOUNT WRITTEN IN THE SEIZED DOCUMENT WAS IN FACT RECEIVED FROM THE ASSESSEE. AS THE ASSESSEE HAS CATEGORICALLY DENIED TO HAVE MADE ANY PAYMENT IN EXCESS OF RS.1,01,687/ - UPTO 31ST MARCH, 1999 IN RESPECT OF PURCHASE O F FLAT THE SAID DENIAL CANNOT BE BRUSHED ASIDE WITHOUT BRINGING ANY POSITIVE MATERIAL ON RECORD. MERELY RECORDING MADE BY A THIRD PARTY OR STATEMENT OF A THIRD PARTY CANNOT BE TREATED AS SO SACROSANCT SO AS TO READ AS A POSITIVE MATERIAL AGAINST THE ASSES SEE. IN VIEW OF THE ABOVE THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING ADDITION TO THE EXTENT OF RS.3,81,414/ - IN THE HANDS OF THE ASSESSEE. THEREFORE THE ADDITION OF RS.3,81,414/ - IS DELETED. ASST. CIT VS. PRABHAT OIL MILLS (1995) 52 TTJ (AHD) 533 RELIED ON; K.P. VARGHESE VS. ITO (1981) 24 CTR (SC) 358: (1981) 131 ITR 597 (SC) APPLIED. 15 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) 21. IN YET ANOTHER CASE, THE ITAT HYDERABAD `B BENCH IN THE CASE OF DCIT (CENTRAL CIRCLE) - 6 VS. B. VIJAY KUMAR IN ITA NO.930 & 931 OF 2009 HELD THE ISSUE IN FAVOUR OF TH E ASSESSEE AS UNDER: 11. WE HAVE HEARD RIVAL SUBMISSIONS, PERUSED THE MATERIAL SUBMITTED BEFORE US AND ALSO PERUSED THE ORDERS OF THE REVENUE AUTHORITIES. ON A READING OF THE ASSESSMENT ORDER, IT IS ABSOLUTELY CLEAR THAT THE ADDITION HAS BEEN MADE ENTIRELY ON THE BASIS OF THE PHOTOCOPY OF THE SALE AGREEMENT SEIZED FROM THE RESIDENCE OF THE ASSESSEE IN COURSE OF SEARCH AND SEIZURE OPERATION. UNDISPUTEDLY, THE SALE AGREEMENT IS ONLY PHOTOCOPY AND HAS NOT BEEN SIGNED BY THE ASSESSEE. THE ASSESSEE HAS ALSO RAIS ED SERIOUS ALLEGATION REGARDING THE SEIZURE OF THE IMPUGNED DOCUMENT AND FILED AFFIDAVIT BEFORE DDIT (INV.) ASSERTING THAT THE SAID DOCUMENT WAS PLANTED BY AN OFFICER OF THE DEPARTMENT ALSO NAMED BY THE ASSESSEE IN THE AFFIDAVIT. HOWEVER, SUCH ALLEGATION O F THE ASSESSEE HAS NOT AT ALL BEEN ENQUIRED INTO AND HAS BEEN MET WITH COMPLETE SILENCE BY THE DEPARTMENT. FROM THE MATERIALS ON RECORD, IT IS VERY CLEAR THAT THE AO HAS FAILED TO LAY HIS HANDS ON ANY CREDIBLE EVIDENCE TO ESTABLISH THE FACT THAT THE ASSESS EE HAS PURCHASED THE PROPERTY FOR A CONSIDERATION OF RS.1,68,00,000/ - AS MENTIONED IN THE PHOTO COPY OF SALE AGREEMENT SEIZED IN COURSE OF SEARCH AND SEIZURE OPERATION. THE ASSESSEE HAS PRODUCED BEFORE THE AO REGISTERED SALE DEEDS IN SUPPORT OF ITS CLAIM T HAT THEY HAD PURCHASED THE PROPERTY FOR A CONSIDERATION OF RS.23.50 LAKHS. WHEN THE AO ALLEGES THAT THE ASSESSEE HAS PAID MORE THAN WHAT HAS BEEN DECLARED IN THE REGISTERED SALE DEED BECAUSE THE FAIR MARKET VALUE OF THE ASSET AS ON THE DATE OF TRANSACTION EXCEEDS FULL VALUE OF CONSIDERATION DECLARED BY THE ASSESSEE THEN IT IS FOR THE AO TO PROVE THAT THE VALUE DECLARED BY THE ASSESSEE IS UNDERSTATED. IN THE APPEAL BEFORE US, EXCEPTING THE PHOTO COPY OF SALE AGREEMENT, THERE IS NO OTHER EVIDENCE ON RECORD FO UND AS A RESULT OF SEARCH OR BROUGHT ON RECORD ON THE BASIS OF ENQUIRY CONDUCTED BY THE AO WHICH COULD ESTABLISH THE FACT THAT THE ACTUAL CONSIDERATION PASSED BETWEEN THE PARTIES IS NOT AS MENTIONED IN THE REGISTERED SALE DEED BUT AS PER THE SALE AGREEMENT FOUND DURING SEARCH OPERATION. IT IS ALSO AN INTERESTING FACT TO NOTE THAT IN THE STATEMENT RECORDED FROM THE ASSESSEE U/S 132(4) THE REVENUE AUTHORITIES HAVE NOT PUT ANY QUESTION WITH REGARD TO THE SALE AGREEMENT SEIZED AT THE TIME OF SEARCH AND SEIZURE OPERATIONS. SMT. R. NALINI DEVI ALSO IN HER STATEMENT FURTHER CLEARLY STATED THAT THE PROPERTY WAS SOLD AT RS.23.50 16 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) LAKHS AND NOT AT THE RATE OF RS.1.68 CRORES. THE HON'BLE SUPREME COURT IN THE CASE OF K.P. VERGHESE REPORTED IN 131 ITR 597 HAS HELD THAT O NUS IS ON THE DEPARTMENT TO PROVE THAT THE ASSESSEE HAS UNDERSTATED THE VALUE OF THE PROPERTY AND HAS PAID MORE THAN WHAT IS MENTIONED IN THE REGISTERED SALE DEED. THE HON'BLE SUPREME COURT IN THE CASE OF MOOSA S. MADHA AND AZAM S. MADHA VS. CIT ( 89 ITR 6 5) HAS HELD THAT PHOTOCOPIES HAVE LITTLE EVIDENTIARY VALUE. THEREFORE, PHOTOCOPIES OF ANY DOCUMENT CANNOT BY ITSELF BE CONSIDERED AS EVIDENCE FOR PURPOSE OF MAKING ADDITION IN ASSESSMENT PROCEEDINGS. THE AO IS REQUIRED TO BRING FURTHER EVIDENCE ON RECORD T O SHOW THAT THE SALE AGREEMENT WAS ACTUALLY ACTED UPON BY THE PARTIES. THIS IS BECAUSE OF THE FACT. WHEN THE AO IS GOING TO MAKE AN ADDITION, THERE SHOULD BE SUFFICIENT EVIDENCE BROUGHT ON RECORD TO SUPPORT SUCH ADDITION. NO ADDITION CAN BE MADE ON CONJEC TURES AND SURMISES. AS SEEN FROM THE ASSESSMENT ORDER, THE AO HAS ADOPTED VALUE OF THE PROPERTY AT THE RS.7000/ - PER SQ. YARD ON THE DATE OF TRANSACTION. FOR ADOPTING SUCH A VALUATION, THE AO HAS NOT CONDUCTED ANY ENQUIRY OR BROUGHT ANY MATERIALS ON RECORD TO SHOW THAT THE VALUE OF THE PROPERTY ON THE DATE OF TRANSACTION WAS ACTUALLY RS.7000 PER SQ. YARD. ON THE OTHER HAND, THE ASSESSEE HAS DEMONSTRATED WITH SUPPORTING EVIDENCE THAT THE VALUE OF THE LAND ON THE DATE OF TRANSACTION WAS THE RATE MENTIONED IN THE REGISTERED SALE DEED AND FOR WHICH THE PROPERTY WAS SOLD. THE ASSESSEE HAS ALSO PRODUCED SUFFICIENT EVIDENCE TO SHOW THAT THE - RE WAS DISPUTE GOING ON REGARDING THE LEGAL RIGHT OVER THE PROPERTY WHICH ALSO HAD AN EFFECT ON THE FAIR MARKET VALUE OF THE P ROPERTY. IT IS ALSO PERTINENT TO MENTION HERE THAT THE ASSESSEE HAD FILED HIS RETURN F INCOME FOR THE ASSESSMENT YEARS UNDER DISPUTE MUCH PRIOR TO THE DATE OF SEARCH DECLARING THE PURCHASE OF LAND IN QUESTION AT THE CONSIDERATION MENTIONED IN THE REGISTERE D SALE DEEDS. 155) FAR AS THE AO'S OBSERVATIONS ON THE LOOSE SHEETS RECOVERED FROM THE RESIDENCE OF SMT. NALINI DEVI ARE CONCERNED, THE CIT (A) AFTER DULY EXAMINING THEM HAS GIVEN A CONCLUSIVE FINDING THAT THE ASSESSEE'S NAME HAS NO WHERE BEEN MENTIONED IN THOSE DOCUMENTS NOR THE AMOUNT OF RS.109.48 LAKHS REPRESENTS THE EXPENDITURE INCURRED BY SMT NALINI DEVI. HOWEVER, THE AMOUNT WAS FOUND TO BE THE SUMMARY OF THE BALANCE OF VARIOUS ACCOUNTS OPERATED BY THE FAMILY MEMBERS OF SMT. NALINI DEVI. WE FIND THAT T HE CIT (A) IN HIS ELABORATE AND WELL REASONED ORDER HAS DEALT WITH ALL THESE ASPECTS AND CAME TO A FINDING ON FACT THAT THE AO HAS MADE THE ADDITION PURELY ON CONJECTURES AND SURMISES AND NOT ON 17 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) THE BASIS OF ANY MATERIAL OR EVIDENCE BROUGHT ON RECORD. ON E XAMINING THE FACTS AND MATERIALS BEFORE US, WE ARE OF THE VIEW THAT THE FINDING ARRIVED BY THE CIT (A) IS JUST AND PROPER AND IN ACCORDANCE WITH THE PRINCIPLES OF LAW LAID DOWN BY THE HON'BLE SUPREME COURT AND HON'BLE HIGH COURTS WHICH ARE CITED BEFORE HIM . WE THEREFORE FIND NO NECESSITY TO INTERFERE WITH THE FINDING OF THE CIT (A) ON THIS ISSUE. HENCE THE GROUNDS RAISED BY THE REVENUE FOR THE YEARS UNDER CONSIDERATION ARE DISMISSED. 22. THE HONBLE A.P. HIGH COURT IN ITA NO.232 OF 2013 IN THE CASE OF CIT VS. SMT. R. NALINI DEVI HAS UPHELD THE ORDER OF THE ITAT HYDERABAD BENCH. THE HONBLE HIGH COURT WHILE, CONSIDERING THE ISSUE HELD AS UNDER: WE HAVE HEARD THE LEARNED COUNSEL FOR THE APPELLANT AND GONE THROUGH THE IMPUGNED JUDGEMENT AND ORDER OF THE LEAR NED TRIBUNAL. IT APPEARS, THE ASSESSING OFFICER HAD RELIED ON A PHOTOCOPY OF AN UNSIGNED SALE AGREEMENT IN ORDER TO FIND THAT CONSIDERATION AMOUNT HAS BEEN PAID AT RS.1,68,00,000/ - . THEREFORE, THIS AMOUNT WAS NOT DISCLOSED. THE LEARNED TRIBUNAL HAS CORRE CTLY CONCLUDED THAT UNSIGNED PHOTOCOPY OF THE AGREEMENT FOR PURCHASE OF THE PROPERTY CANNOT BE A MATERIAL TO RELY ON, WHEN THE REGISTERED SALE DEED HAS BEEN PRODUCED AND THE SAME SHOWS THAT THE PROPERTY WAS PURCHASED AT A PRICE OF RS.23,50,000/ - . THIS REG ISTERED SALE DEED WAS DISCLOSED AT THE TIME OF ORIGINAL ASSESSMENT. ACCORDING TO US, THE AGREEMENT OF SALE LOSES ITS FORCE, THE MOMENT REGISTERED SALE DEED IS EXECUTED. IF THE PROPERTY HAS BEEN PURCHASED AT A HIGHER PRICE THAN THAT OF MENTIONED IN THE PU RCHASE DEED, THEN THE ONUS IS ON THE ASSESSING OFFICER TO ESTABLISH THAT, AS HAS BEEN RIGHTLY CONCLUDED BY THE TRIBUNAL ON THIS ISSUE. MOREOVER, PHOTOCOPY OF THE UNSIGNED AGREEMENT HAS GOT NO EVIDENTIARY VALUE. THE ASSESSING OFFICER HAS DONE A GUESS WORK WHILE COMING TO THE CONCLUSION THAT THE PRICE OF THE PROPERTY IS MORE THAN MENTIONED IN THE SALE DEED. THERE MUST BE SOME MATERIAL AND BASIS TO CONCLUDE THAT THE PURCHASE HAS BEEN MADE AT AN UNDER VALUATION. 23. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. P.V. KALYANA SUNDARAM (2007) 294 ITR 49, UNDER THE SIMILAR CIRCUMSTANCES HELD IN FAVOUR OF THE ASSESSEE. THE HONBLE SUPREME COURT, WHILE DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE HELD AS UNDER: WE HAVE HEARD LEARNED COUNSEL FOR THE PARTIES AND HAVE GONE THROUGH THE RECORD. IT IS TRUE THAT THE DIVISION BENCH OF THE HIGH COURT HAS BORROWED EXTENSIVELY FROM THE ORDERS OF THE TRIBUNAL AND THE COMMISSIONER AND PASSED THEM OFF AS IF THEY WERE THEMSELV ES 18 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) THE AUTHOR(S). WE FEEL THAT QUOTING FROM AN ORDER OF SOME AUTHORITY PARTICULARLY A SPECIALIZED ONE CANNOT PER SE BE FAULTED AS THIS PROCEDURE CAN OFTEN HELP IN MAKING FOR BREVITY AND PRECISION, BUT WE AGREE WITH MR. VAHANVATI TO THE EXTENT THAT ANY BO RROWED WORDS USED IN A JUDGEMENT MUST BE ACKNOWLEDGED AS SUCH IN ANY APPROPRIATE MANNER AS A COURTESY TO THE TRUE AUTHOR(S). BE THAT AS IT MAY, WE ARE OF THE OPINION THAT THE THREE QUESTIONS REPRODUCED ABOVE CAN, IN NO WAY, BE CALLED SUBSTANTIAL QUESTION S OF LAW. THE FACT AS TO THE ACTUAL SALE PRICE OF THE PROPERTY, THE IMPLICATION OF THE CONTRADICTORY STATEMENTS MADE BY RAJARATHINAM OR WHETHER RELIANCE COULD BE PLACED ON THE LOOSE SHEETS RECOVERED IN THE COURSE OF THE RAID ARE ALL QUESTION OF FACT. WE THEREFORE FIND NO INFIRMITY IN THE ORDER OF THE HIGH COURT. ACCORDINGLY, WE DISMISS THE APPEAL. 24. CONSIDERING THE TOTAL FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO APPLYING THE RATIOS OF THE JUDGEMENTS CITED ABOVE, WE ARE OF THE OPINION THAT THE A.O. IS NOT CORRECT IN COMING TO THE CONCLUSION THAT THE ON MONEY IS EXCHANGED BETWEEN THE PARTIES BASED ON A LOOSE SHEET FOUND IN THE PREMISES OF A THIRD PERSON AND ALSO ADMISSION BY A THIRD PERSON. TO SUSTAIN THE ADDITION, THE A.O. SHOULD HAVE CONDUCTED AN IN DEPENDENT ENQUIRY ABOUT THE VALUE OF THE PROPERTY AND ASCERTAIN WHETHER ANY UNDER VALUATION IS DONE, IF SO WHAT IS THE CORRECT VALUE OF THE PROPERTY. FURTHER, THE A.O. DID NOT BROUGHT ON RECORD ANY EVIDENCE TO SUPPORT HIS CONTENTION TO SAY THAT THERE IS O N MONEY EXCHANGED BETWEEN THE PARTIES. IN THE ABSENCE OF PROPER ENQUIRY AND SUFFICIENT EVIDENCES, WE FIND NO REASON TO CONFIRM THE ADDITION MADE BY THE A.O. THEREFORE, WE REVERSE THE CIT(A) ORDER AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION. 10 . IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF M/S. ANDAMAN TIMBER INDUSTRIES (SUPRA) AND ALSO THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SRI VENKATA RAMA SAI DEVELOPERS (SUPRA) AND ALSO BY CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE , WE FIND THAT THE ORDER S PASSED BY THE ASSESSING OFFICER AND LD.CIT(A) CANNOT SURVIVE. THUS, WE REVERSE THE ORDER PASSED BY THE LD. CIT(A) AND THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED. 19 ITA NO. 264/VIZ/2019 ( SMT. KARUTURI VIJAYA BHARATHI ) 1 1 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 1 4 T H DAY OF AUGUST , 201 9 . S D / - S D / - ( D.S. SUNDER SINGH ) ( V. DURGA RAO ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 1 4 T H AUGUST , 201 9 . VR/ - COPY TO: 1. THE ASSESSEE SMT. KARUTURI VIJAYA BHARATHI, D.NO. 1 - 2 - 8, PRESIDENCY APARTMENT, 1 ST FLOOR, 1 ST LINE, JKC NAGAR, GUNTUR. 2. THE REVENUE ITO, WARD - 1(1), GUNTUR. 3. THE PR. CIT , GUNTUR. 4. THE CIT(A) - 1, GUNTUR. 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.