THE ACIT., CENTRAL CIRCLE, Vinkonda V. Sri Kosaraju Koteswara Rao, Gudivada

ITA 67/VIZ/2013

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 6769 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 year(s) 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-12-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 11-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R GOVINDARAJAN
• Keywords: Unexplained investment; Capital asset; Document seized
• Section: 69C; 133A; 132; 10

Judgement Text

ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . ' , % BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER ./I.T.A.NO.67/VIZAG/2013 ( / ASSESSMENT YEAR: 2006-07) ACIT, CENTRAL CIRCLE, VIJAYAWADA K. KOTESWARA RAO, GUDIVADA [PAN NO. AJXPK6865D ] ( ' / APPELLANT) ( ()' / RESPONDENT) / APPELLANT BY : SHRI R. GOVINDA RAJAN, DR / RESPONDENT BY : SHRI C. SUBRAHMANYAM, AR / DATE OF HEARING : 26.07.2017 / DATE OF PRONOUNCEMENT : 18.08.2017 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) {CIT(A)}, VIJA YAWADA DATED 1.11.2012 FOR THE ASSESSMENT YEAR 2006-07. 2. ALL THE GROUNDS OF APPEAL ARE RELATED TO ON MONE Y PAYMENT OF ` 1,06,73,014/- ASSESSED BY THE A.O. AS UNEXPLAINED I NVESTMENT U/S 69B ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 2 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT'). A SEARCH U/S 132 OF THE INCOME TAX ACT WAS CARRIED OUT IN TH E RESIDENTIAL PREMISES OF THE ASSESSEE AND OTHER CONNECTED CASES OF GOWTHA M GROUP ON 24.7.2006. DURING THE COURSE OF SEARCH, A LOOSE SH EET MARKED AS A/KKR/GCS/10 WAS FOUND AND SEIZED. THE INCRIMINATI NG MATERIAL FOUND DURING THE SEARCH INDICATED THAT THE ASSESSEE HAS M ADE THE PAYMENT OF ` 1,45,61,300/- FOR PURCHASE OF LAND ADMEASURING 2.4 1 ACRES AS PER THE DETAILS FURNISHED HEREUNDER: S.NO. PROPERTY & THE NAME OF THE BUYER DT. OF THE TRANSACTION AMOUNT OF REGISTERED CONSIDERATION CONSIDERATION AS PER SEIZED MATERIAL 1. AC.0.45 K.K.R. 22.10.2005 720000 2128500 2. AC.1.96 B. VENKATADRI 22.10.2005 3166000 12432800 3. TOTAL 3888000 14561300 3. THE A.O. TREATED THE DIFFERENCE AMOUNT OF ` 1,06,75,014/- AS UNEXPLAINED INVESTMENT FOR PURCHASE OF LAND AND BRO UGHT TO TAX U/S 69B OF THE ACT. AGGRIEVED BY THE ORDER OF THE A.O., TH E ASSESSEE WENT ON APPEAL BEFORE LD. CIT(A) AND THE LD. CIT(A) DELETED THE ADDITION OBSERVING THAT THE SELLER OF THE PROPERTY DENIED HA VING RECEIVED ANY ON MONEY AND THE AO HAS NOT MADE ANY INDEPENDENT ENQUI RY NOR BROUGHT ANY EVIDENCE TO SUPPORT THE CONTENTION OF HAVING PA ID THE ON MONEY ON RECORD. THE LD CIT(A) FURTHER OBSERVED THAT THE NO TING OF LOOSE SHEET REQUIRED TO BE SUPPORTED BY CORROBORATED EVIDENCE W HICH MAY INCLUDE ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 3 STATEMENT OF A PERSON WHO ADMITTEDLY IS A PARTY TO THE NOTING. SINCE THE VENDOR HAS DENIED HAVING RECEIVED THE ON MONEY AND NO OTHER EVIDENCE WAS BROUGHT ON RECORD BY THE A.O. TO SUPPORT THE ON MONEY PAYMENT, THE LD. CIT(A) HELD THAT THE A.O. HAS NOT DISCHARGE D HIS BURDEN TO ESTABLISH THAT THE ASSESSEE HAS MADE ON MONEY PAYME NT FOR PURCHASE OF THE LAND AND ACCORDINGLY, DELETED THE ADDITION M ADE BY THE A.O. WHILE DELETING THE ADDITION, THE LD. CIT(A) RELIED O N THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF K.P. VERGHESE (1981) 131 ITR 597. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 4. DURING THE APPEAL HEARING, THE LD. D.R. ARGUED T HAT A SEARCH U/S 132 OF THE ACT WAS CARRIED OUT IN THE ASSESSEES CA SE AND DURING THE COURSE OF SEARCH, A LOOSE SHEET CONTAINING THE DETA ILS OF THE LAND COST WAS FOUND, WITH THE COMPLETE DETAILS OF PAYMENT MAD E IN CASH AND THE CONSIDERATION RECORDED FOR REGISTRATION AS UNDER: LAND COST OF 2.41 ACRES: B. VENKAT AC 0.60 @ 100 LAKH 60,00,000 AC 1.36 @ 47.30 LAKHS 64,32,800 1,24,32,800 K.K.R. AC 0.45 @ 47.30 LAKHS 21,28,500 AC 2.41 1,45,61,300 5. ACCORDING TO THE NOTING THE ASSESSEE MADE THE PA YMENT OF ` 1,24,32,800/- FOR 1.96 ACRES OF LAND PURCHASED IN T HE NAME OF ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 4 SHRI B. VENKATADRI, SON-IN-LAW OF THE ASSESSEE AND A SUM OF ` 21,28,500/- PAID FOR 0.45 ACRES OF AGRICULTURAL LAN D PURCHASED IN THE NAME OF ASSESSEE HIMSELF AND REGISTERED THE LAND FO R A PALTRY SUM OF ` 31.66 LAKHS IN THE CASE OF B. VENKATADRI AND ` 7.20 LAKHS IN THE CASE OF THE ASSESSEE, RESULTING IN A DIFFERENCE OF ` 1,06,73,014/-, WHICH WAS PAID OUTSIDE THE BOOKS OF ACCOUNTS AND THE ASSESSIN G OFFICER HAS RIGHTLY ASSESSED THE UNACCOUNTED PAYMENT U/S 69B OF THE ACT AND ARGUED THAT THE ASSESSMENT MADE BY THE A.O. REQUIRED TO BE CONF IRMED AND THE ORDER OF THE LD. CIT(A) REQUIRED TO BE SET ASIDE. 6. ON THE OTHER HAND, THE LD. A.R. APPEARING FOR TH E ASSESSEE ARGUED THAT A SEARCH WAS CONDUCTED IN THE CASE OF THE ASSE SSEE AND IT WAS A FACT THAT A LOOSE SHEET WITH DIFFERENT NOTINGS WAS FOUND IN THE RESIDENTIAL PREMISES AND AS PER THE LOOSE SHEET, IT WAS ALSO RE CORDED THAT A SUM OF ` 1,24,32,800/- WAS THE COST OF LAND IN THE NAME OF B. VENKAT AND ` 21,28,500/- IN THE NAME OF K. KOTESWARA RAO. HOWEV ER, THE CONTENTS OF THE SAID LOOSE SHEET WAS DENIED BY THE ASSESSEE AT THE TIME OF SEARCH ITSELF AND STATED THAT HE HAS NOT PAID THE SUMS MEN TIONED IN THE LOOSE SHEET AND THE ACTUAL PAYMENT FOR THE PURCHASE OF LA ND WAS ` 7,20,000/- IN THE CASE OF THE ASSESSEE AND ` 31.66 LAKHS IN THE CASE OF B. VENKATADRI. THE LD. A.R. FURTHER ARGUED THAT THE H AND WRITING OF THE LOOSE SHEET WAS NOT OF THE ASSESSEE AND ASSESSEE DO ES NOT KNOW WHO ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 5 HAS WRITTEN THE SAID LOOSE SHEET AND PURPOSE. THE INVESTIGATION WING HAS RECORDED STATEMENT FROM THE ASSESSEE ON THE DAT E OF SEARCH I.E. ON 7.8.2006, WHICH IS REPRODUCED AS UNDER: Q.23. PLEASE GO THROUGH LOOSE SHEET NO.2 OF THE AN NEXURE-A/KKR/GCS/R-10 AND EXPLAIN THE CONTENTS IN DETAIL? ANS. THE PAPER IS NOT WRITTEN BY ME. I HAVE NO IDE A ABOUT THIS. 7. LD. A.R. FURTHER SUBMITTED THAT THE STATEMENT WA S RECORDED FROM MR. M. ANANDA KISHORE, THE VENDOR OF THE LAND WHO A LSO HAD DENIED THE RECEIPT OF ANY ON MONEY. HE INVITED OUR ATTENTION TO PAGE 20 & 21 OF THE PAPER BOOK, WHERE THE REPLY OF MR. ANANDA KISH ORE IS RECORDED AS UNDER: Q9. PLEASE EXAMINE THE SEIZED MATERIAL NUMBER ANNE XURE- KKR/GCSIR-1O, PAGE-2 AND TELL THE DETAILS AND WHAT WAS THE AMOUNT RECEIVED BY YOU FROM BUYERS. PLEASE GIVE THE DETAILS? A) THE FIGURES MENTIONED IN THAT PAPER DO NOT RELAT E TO ME I RECEIVED FROM SRI KOTESWARA RAO RS.16 LAKHS PER ACRE. HE HAS NOT PAID TO ME ANY EXTRA MONEY. Q10. DID YOU RECEIVE ANY ADVANCE FOR THE ABOVE TRAN SACTION FROM SRI KOTESWARA RAO? A) I DID NOT RECEIVE ANY ADVANCE FROM SRI KOTEWARA RAO. THIS IS TRUE. Q11. PLEASE REMEMBER ONCE AGAIN AND CONFIRM WHETHER YOU RECEIVED ANY ADVANCE? A) IN RESPECT OF THE ABOVE TRANSACTION I DID NOT RECE IVE ANY ADVANCE FROM SRI KOTESWARA RAO. EXCEPT THE TWO CHEQUES REFERRED TO ABOVE I DID NOT RECEIVE ANY ADVANCE. Q12. PLEASE EXAMINE ONCE AGAIN ANNEXURE-A/KKR/GCS/R 10, PAGE-2 AND GIVE THE DETAILS? A) I DO NOT KNOW. Q13. IN THE ABOVE PAGE K.K.R, AC.0.45 RS.47.30 LAK HS WAS MENTIONED. PLEASE GO THROUGH THE SAME AND TELL WHAT WAS THE A MOUNT YOU PAID TO SRI KOTESWARA RAO? ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 6 A) I DO NOT HAVE ANY CONNECTION TO THE ABOVE PAPER. I SOLD LAND TO SRI KOTESWARA RAO @RS.16 LAKHS PER ACRE. Q14. IN ANNEXURE-KKR/GCS/R10, PAGE-1, IT WAS MARKED AC.0-45. PLEASE TELL WHETHER THAT LAND IS YOURS OR NOT AND WHETHER YOU SOLD THE SAME TO SRI KOTESWARA RAO OR NOT? A) THAT LAND AC 0-45 IS MINE. I SOLD IT TO SRI KOTESWA RA RAO. THIS IS TRUE BUT I DO NOT KNOW ABOUT THE MARK IN THE MAP. Q.15. WHEN DID YOU PURCHASE THE LAND SITUATED IN GOODAVALLI WHICH WAS SOLD TO KOTESWARA RAO AND HIS SON-IN-LAW? A) I PURCHASED THE SAME IN THE YEAR 2001 FROM SRI P OSANI PATTABHI RAMA RAO OF VIJAYAWADA @ RS.4,25,000/- PER ACRE. Q16. IN ANNEXURE-KKR/GCS/R-10, PAGE-2, IT WAS MENTI ONED AS UNDER: 'B. VENKAT AC 0.60 @RS.100 LAKHS - 60,00,000 AC 1.36 @RS. 47.30 LAKHS - 64,32,800 1,24,32,800 PLEASE EXAMINE THE ABOVE DETAILS AND TELL WHETHER YOU SOLD OR NOT TO B.VENKATADRI THE ABOVE LAND FOR THE VALUE MENTIONE D ABOVE? A) THE ABOVE DETAILS DO NOT BELONG TO ME. IT IS TRU E THAT I SOLD THE LAND TO B.VENKATADRI BUT @RS.16 LAKHS PER ACRE. THIS IS T RUE. Q17. DO YOU WANT TO SAY ANYTHING? A) NO 8. THE LD. A.R. FURTHER ARGUED THAT THE ASSESSEE HA S REGISTERED THE SALE DEEDS AND THE STAMP DUTY WAS PAID BY THE ASSES SEE ON THE PROPERTIES PURCHASED BY HIM AND THE LANDS WERE REGI STERED FOR ` 7,20,000/- IN THE CASE OF THE ASSESSEE AND ` 31,66,000/- IN THE CASE OF SHRI B. VENKATADRI, SON-IN-LAW OF THE ASSESSEE. SI NCE THE SALE DEED WAS REGISTERED WITH S.R.O. AND NO EXCESS STAMP DUTY WAS PAID, THE REGISTERED DOCUMENT IS A VALID EVIDENCE FOR THE CON SIDERATION PAID. SINCE THE DEPARTMENT HAS NOT PRODUCED ANY EVIDENCE TO PROVE THAT ON ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 7 MONEY WAS PAID FOR PURCHASE OF THE LAND, THE LD. A. R. SUBMITTED THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE LD. CIT(A) AND IT SHOULD BE UPHELD. THE LD. A.R. FURTHER ARGUED THAT EVEN IF I T IS PRESUMED THAT THE ASSESSEE HAS MADE THE ON MONEY PAYMENT FOR PURCHASE OF LAND, A SUM OF ` 1,24,32,800/- WAS RECORDED AGAINST THE NAME OF B. VENKATADRI AND A SUM OF ` 21,28,500/- WAS RECORDED IN THE NAME OF THE ASSESS EE. MR. B. VENKATADRI IS INDEPENDENTLY ASSESSED TO INCOME T AX, THEREFORE, IF AT ALL THE ADDITION REQUIRED TO BE MADE, THE AMOUNT OF ` 1,24,32,800/- SHOULD BE ASSESSED IN THE HANDS OF B. VENKATADRI WH O IS A DIFFERENT AND INDEPENDENT ASSESSEE AND IT CANNOT BE CLUBBED IN TH E HANDS OF THE ASSESSEE. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIALS AVAILABLE ON RECORD. A SEARCH U/S 132 OF THE ACT W AS CARRIED OUT IN THE CASE OF THE ASSESSEE ON 24.7.2006 AND ON SUBSEQ UENT DATES. DURING THE COURSE OF SEARCH, THE INVESTIGATION WING FOUND A LOOSE SHEET CONTAINING THE DETAILS OF LAND COST FOR PURCH ASE OF 2.41 ACRES AGRICULTURAL LAND. AS PER THE LOOSE SHEET, THE PAYM ENT WAS OF ` 1,24,32,800/- WAS THE COST OF 1.96 ACRES OF LAND PU RCHASED FOR SHRI B. VENKATADRI AND A SUM OF ` 21,28,500/- WAS THE COST OF 0.45 ACRES OF LAND FOR THE ASSESSEE. THE LANDS WERE REGISTERE D FOR A SUM OF ` 31,66,000/- AND ` 7,20,000/- RESPECTIVELY. DURING THE COURSE OF ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 8 SEARCH, THE ASSESSEE HAS DENIED THE PAYMENT OVER AN D ABOVE THE REGISTERED SALE DEED. THE ASSESSEE ALSO DENIED THE NOTING AND STATED THAT IT WAS NOT IN HIS HAND WRITING AND HE COULD NO T EXPLAIN IN WHOSE HAND WRITING THE NOTING WAS MADE AND THE PURPOSE OF NOTING. THE REVENUE HAS EXAMINED THE VENDOR MR. M. ANAND KISHOR E AND THE VENDOR HAS DENIED HAVING RECEIVED THE PAYMENT OVER AND ABOVE THE AMOUNTS RECORDED IN SALE DEED. THE QUESTIONS AND T HE ANSWERS OF THE VENDOR MR. ANAND KISHORE IN THE STATEMENT RECOR DED BY I.T. DEPARTMENT ARE AS UNDER: Q9. PLEASE EXAMINE THE SEIZED MATERIAL NUMBER ANNE XURE- KKR/GCSIR-1O, PAGE-2 AND TELL THE DETAILS AND WHAT WAS THE AMOUNT RECEIVED BY YOU FROM BUYERS. PLEASE GIVE THE DETAILS? A) THE FIGURES MENTIONED IN THAT PAPER DO NOT RELAT E TO ME I RECEIVED FROM SRI KOTESWARA RAO RS.16 LAKHS PER ACRE. HE HAS NOT PAID ME ANY EXTRA MONEY. Q10. DID YOU RECEIVE ANY ADVANCE FOR THE ABOVE TRAN SACTION FROM SRI KOTESWARA RAO? B) I DID NOT RECEIVE ANY ADVANCE FROM SRI KOTEWARA RAO. THIS IS TRUE. Q11. PLEASE REMEMBER ONCE AGAIN AND CONFIRM WHETHER YOU RECEIVED ANY ADVANCE? A) IN RESPECT OF THE ABOVE TRANSACTION I DID NOT RECE IVE ANY ADVANCE FROM SRI KOTESWARA RAO. EXCEPT THE TWO CHEQUES REFERRED TO ABOVE I DID NOT RECEIVE ANY ADVANCE. Q12. PLEASE EXAMINE ONCE AGAIN ANNEXURE-A/KKR/GCS/R 10, PAGE-2 AND GIVE THE DETAILS? A) I DO NOT KNOW. Q13. IN THE ABOVE PAGE K.K.R, AC.0.45 RS.47.30 LAK HS WAS MENTIONED. PLEASE GO THROUGH THE SAME AND TELL WHAT WAS THE A MOUNT YOU PAID TO SRI KOTESWARA RAO? ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 9 A) I DO NOT HAVE ANY CONNECTION TO THE ABOVE PAPER. I SOLD LAND TO SRI KOTESWARA RAO @RS.16 LAKHS PER ACRE. Q14. IN ANNEXURE-KKR/GCS/R10, PAGE-1, IT WAS MARKED AC.0-45. PLEASE TELL WHETHER THAT LAND IS YOURS OR NOT AND WHETHER YOU SOLD THE SAME TO SRI KOTESWARA RAO OR NOT? B) THAT LAND AC 0-45 IS MINE. I SOLD IT TO SRI KOTESWA RA RAO. THIS IS TRUE BUT I DO NOT KNOW ABOUT THE MARK IN THE MAP. Q.15. WHEN DID YOU PURCHASE THE LAND SITUATED IN GOODAVALLI WHICH WAS SOLD TO KOTESWARA RAO AND HIS SON-IN-LAW? A) I PURCHASED THE SAME IN THE YEAR 2001 FROM SRI P OSANI PATTABHI RAMA RAO OF VIJAYAWADA @ RS.4,25,000/- PER ACRE. Q16. IN ANNEXURE-KKR/GCS/R-10, PAGE-2, IT WAS MENTI ONED AS UNDER: 'B. VENKAT AC 0.60 @RS.100 LAKHS - 60,00,000 AC 1.36 @RS. 47.30 LAKHS - 64,32,800 1,24,32,800 PLEASE EXAMINE THE ABOVE DETAILS AND TELL WHETHER YOU SOLD OR NOT TO B.VENKAT THE ABOVE LAND FOR THE VALUE MENTIONED ABOVE? A) THE ABOW DETAILS DO NOT BELONG TO ME. IT IS TRU E THAT I SOLD THE LAND TO B.VENKAT BUT @RS.16 LAKHS PER ACRE. THIS IS TRUE. Q17. DO YOU WANT TO SAY ANYTHING? B) NO 10. BOTH ASSESSEE AND THE VENDOR HAVE DENIED THAT T HE ON MONEY WAS EXCHANGED FOR TRANSFER OF LAND OF 2.41 ACRES. NO OTHER EVIDENCE WAS BROUGHT BY THE A.O. TO ESTABLISH THAT ON MONEY WAS EXCHANGED BETWEEN THE PARTIES. THE LD. CIT(A) DELETED THE AD DITION AS PER THE DISCUSSION IN PAGE-6, PARA 5C, WHICH IS EXTRACTED AS UNDER: 5C. REGARDING UNEXPLAINED INVESTMENT OF RS.106,73, 014/- ADDED UNDER SECTION 69B BY THE AO, THE BRIEF FACTS ARE TH AT THE APPELLANT AND HIS SON IN LAW HAVE PURCHASED LANDED PROPERTY F ROM ONE SHRI MUSUNURI ANANDA KISHORE FOR AN AGREED PRICE AND REG ISTRATION ALSO TOOK PLACE ON 22.10.2005. SUBSEQUENT TO THIS DATE, SEARCH ACTION ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 10 UNDER SECTION 132(1) TOOK PLACE ON 24.07.2006 IN TH E RESIDENTIAL PREMISES OF THE APPELLANT, WHEREIN BUNDLE OF LOOSE SHEETS WERE SEIZED UNDER IDENTIFICATION MARK A/KKR/GCS/10, IN W HICH ONE OF THE PAPERS WAS REGARDING WORKINGS OF THE ALLEGED PURCHA SE AND DEVELOPMENT OF IMPUGNED PROPERTY. THIS PAPER CONTAI NED NO NAMES, BUT WORKINGS OF THE PRICE OF THE PROPERTY, STAMP DU TY, REGISTRATION CHARGES ETC MATCHED PERFECTLY, BUT THERE WAS A DIFF ERENCE IN THE PURCHASE PRICE OF RS. 1,06,73,014, WHICH WAS ADDED UNDER SECTION 69B, WHICH WAS DISPUTED IN TOTO. IN THIS BACKGROUND , I HAVE AGAIN AND AGAIN PERUSED THE ASSESSMENT ORDER; COPY OF IMP UGNED DOCUMENT, WRITTEN SUBMISSIONS MADE BY AR. I FIND TH AT AO HAS MADE ADDITION ON THE BASIS OF DOCUMENT SEIZED FROM THE P REMISES OF THE APPELLANT. SINCE THE IMPUGNED DOCUMENT WAS SEIZED F ROM THE PREMISES OF THE APPELLANT, THE AO SOLELY DEPENDED O N IT FOR THE IMPUGNED ADDITION. IT MAY BE NOTED HERE THAT THE AD I HAS CONDUCTED SURVEY UNDER SECTION 133A IN THE PREMISES OF THE SE LLER OF THE PROPERTY SHRI MUSUNURI ANANDA KISHORE PRESUMABLY TO FIND EVIDENCE TO STRENGTHEN THE CASE THAT THE SELLER OF THE PROPE RTY MUST HAVE RECEIVED ON MONEY FROM THE PURCHASER OF THE PROPERT Y BY K. KOTESWARA RAO, I.E., THE APPELLANT. THE RESULTS OF SURVEY HAS NOT YIELDED DESIRED RESULTS OF THE ADI, AS NO MATERIAL WAS FOUND TO CLINCH THE EVIDENCE THAT THE SELLER RECEIVED ON MON EY OR THAT IN COURSE OF RECORDING THE SWORN STATEMENT, THE SELLER OF THE PROPERTY DENIED RECEIVING ON MONEY. IT MAY HOWEVER BE NOTED HERE THAT NO INDEPENDENT ENQUIRY WAS MADE BY THE AO NOR ANY EVID ENCE TO SUPPORT HIS CONTENTION WAS BROUGHT ON RECORD. THE D OCUMENT SEIZED HAD NO RELEVANCE IN ABSENCE OF ANY SUPPORTING EVIDE NCE REGARDING PAYMENTS MADE. NO AGREEMENT, RECEIPT ETC. WAS RECOV ERED DURING THE COURSE OF SEARCH/SURVEY. THE REVENUE HAS ALSO N OT MADE ANY ENQUIRIES FROM THE PROPERTY DEALERS, VENDORS, ETC. TO ESTABLISH THAT THE APPELLANT PAID ANY AMOUNT, OVER AND ABOVE THE A PPARENT CONSIDERATION IN PURCHASE OF THE SAID PROPERTY. I H AVE ALSO GONE THROUGH THE CONTENTS OF THE PAPER SEIZED. ADMITTEDL Y THIS PAPER DATED NIL IS A VAGUE ONE TALLYING IN ALL RESPECTS E XCEPT THE PURCHASE PRICE. ANY DOCUMENT SEIZED HAS TO BE CORROBORATED B Y BRINGING EVIDENCE TO CLINCH THE ISSUE OF PAYMENTS OF ON MONE Y. IT MAY HOWEVER BE NOTED HERE THAT THE PROVISIONS OF THE IN DIAN EVIDENCE ACT ARE NOT STRICTLY APPLICABLE TO THE PROCEEDINGS UNDER THE INCOME- TAX ACT, BUT THE BROAD PRINCIPLES OF LAW AND EVIDEN CE DO APPLY TO SUCH PROCEEDINGS. FURTHER AN ENTRY IN THE BOOKS OF ACCOUNT MAINTAINED IN THE REGULAR COURSE OF BUSINESS IS REL EVANT FOR PURPOSES OF CONSIDERING THE NATURE AND IMPACT OF A TRANSACTION, BUT NOTING ON SLIPS OF PAPER OR LOOSE SHEETS OF PAPER C ANNOT FALL IN THIS CATEGORY. NOTING ON LOOSE SHEET OF PAPERS ARE REQUI RED TO BE SUPPORTED/ CORROBORATED BY OTHER EVIDENCE AND WHICH MAY INCLUDE THE STATEMENT OF A PERSON, WHO ADMITTEDLY IS A PART Y TO THE NOTING. IN THIS CASE, NO SUCH EVIDENCE WAS BROUGHT ON RECOR D BY AO. IT IS IMPORTANT TO NOTE HERE THAT IT CANNOT BE DISPUTED T HAT THE BURDEN TO ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 11 ESTABLISH THAT THE APPELLANT HAS MADE INVESTMENT OF A SUM IN EXCEEDING TO THE DECLARED CONSIDERATION, RESTS ON T HE REVENUE. THE MERE ROUGH WORKING SHEETS SEIZED FROM THE PREMISES OF THE APPELLANT CANNOT BE ANY EVIDENCE TO ESTABLISH THAT THE ALLEGED CONSIDERATION WAS PAID BY APPELLANT. IN THIS CONNEC TION THE JUDGMENT OF THE SUPREME COURT IN THE CASE OF K.P. V ERGHESE (1981) 131 ITR 597 IS RELIED. THUS, AFTER CONSIDERING TOTA LITY OF THE CASE AND DOCUMENTS, I FIND THAT IN THE ABSENCE OF ANY SU CH EVIDENCE, AND THE INVESTMENT HAVING BEEN PROVED, NO ADDITION COULD BE MADE UNDER SECTION 69B OF THE INCOME-TAX ACT. THE AO IS NOT JUSTIFIED IN MAKING THE ADDITION OF RS.1 06,73,014/-ON ACCOUNT O F UNDISCLOSED INVESTMENT BY WAY OF PAYMENT OF ON-MONEY IN EXCESS OF MONEY MENTIONED IN SALE DEED OF THIS PROPERTY. HENCE, I D IRECT HIM TO DELETE THIS ADDITION OF RS.1 06,73,014/-. 11. THE LD. A.R. RELIED ALSO ON THE ORDER OF THIS T RIBUNAL ON SIMILAR FACTS IN THE CASE OF ITO WARD-2(4), VIJAYAWADA VS. SRI MUPPALLA SRINADHA RAO, VIJAYAWADA IN ITA NO.217/VIZ/2013 DAT ED 21.3.2007 AND THE RELEVANT PARAGRAPH IS EXTRACTED AS UNDER: 11 . HAVING HEARD BOTH THE SIDES AND CONSIDERED THE MA TERIAL AVAILABLE ON RECORD, WE FIND THAT THE ASSESSING OFFICER HAS M ADE ADDITIONS SOLELY BASED ON THE DOCUMENTS FOUND DURING THE COURSE OF S URVEY WITHOUT THERE BEING ANY EVIDENCE TO SUGGEST THAT THE ASSESSEE HAS PAID ON MONEY OVER AND ABOVE THE CONSIDERATION RECORDED IN THE BOOKS O F ACCOUNT FOR PURCHASE OF FUTURE FILM. THE ASSESSING OFFICER, RE FERRING TO THE IMPOUNDED DOCUMENT AT PAGE 16 OF BUNDLE NO.20 AND P AGE 6 OF BUNDLE NO.20, STATED THAT ASSESSEE HAS PAID CASH AS WELL A S DEMAND DRAFTS, WHICH AMOUNTS TO 1,85,00,000/-, WHEREAS THE ASSES SEE HAS RECORDED PURCHASE PRICE AT 1,01,29,747/-. WE FIND THAT TH OUGH, THE ASSESSING OFFICER STATED THAT THE ASSESSEE HAS PAID ON MONEY OVER AND ABOVE THE CONSIDERATION RECORDED IN THE BOOKS OF ACCOUNT, FAI LS TO ESTABLISH ANY FINANCIAL CONNECTIONS/TRANSACTIONS BETWEEN SHRI V.R AMAKRISHNA AND THE ASSESSEE AND THE PRODUCER AND ALSO FAILED TO PROVE THE PAYMENT OF 1,85,00,000/- FOR PURCHASE OF DISTRIBUTION RIGHTS W ITH ANY EVIDENCE, OTHER THAN LOOSE SLIPS DURING THE COURSE OF SURVEY. THE AGREEMENTS RELIED UPON BY THE ASSESSING OFFICER STATED TO BE ENTERED WITH THE ASSESSEE FOR KRISHNA & GUNTUR DISTRICTS ARE NOT SIGNED BY THE AS SESSEE. THE ASSESSEE, IN HIS STATEMENT, CATEGORICALLY STATED THAT THE AGR EEMENTS, WHICH WERE FOUND DURING THE COURSE OF SURVEY ARE ONLY DRAFT AG REEMENTS SENT BY THE PRODUCER WHILE TALKS ARE IN PROGRESS FOR DISTRIBUTI ON RIGHTS. WE FURTHER OBSERVED THAT MERELY BASED ON THE STATEMENT, WHICH WAS RECORDED ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 12 DURING THE COURSE OF SURVEY, SUCH ADDITIONS CANNOT BE MADE UNLESS SUCH ADDITION IS SUPPORTED BY SOME CORROBORATIVE EVIDENC E. WHERE THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THE DISCREPANCY F OUND DURING THE COURSE OF SURVEY WITH REGARD TO PURCHASE PRICE PAID FOR DISTRIBUTION RIGHTS, ADDITIONS CANNOT BE MADE SOLELY ON THE BASIS OF STA TEMENT MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY. 12. IN THIS CASE, THE ASSESSEE DURING THE COURSE OF SURV EY, IN THE STATEMENT RECORDED, CATEGORICALLY STATED THAT HE HA S PAID 1,01,29,747/- , BUT NOT 1,85,00,000/-. THE ASSESSING OFFICER W ITHOUT ANY EVIDENCE TO SUGGEST THAT THE ASSESSEE HAS PAID ON MONEY IN CASH OVER AND ABOVE THE CONSIDERATION RECORDED IN THE BOOKS OF ACCOUNT, WHI CH WAS FURTHER SUPPORTED BY THE DEPOSITION OF PRODUCER IN THE FORM OF LETTER, WHEREIN HE HAD CONFIRMED RECEIPT OF 1,01,29,747/- ADDITION S CANNOT BE MADE UNDER SECTION 69C OF THE ACT, AS UNEXPLAINED EXPEND ITURE, TOWARDS DIFFERENCE BETWEEN PURCHASE PRICE FOUND IN LOOSE SL IPS AND AMOUNT RECORDED IN BOOKS OF ACCOUNT. THE COMMISSIONER OF INCOME TAX (APPEALS), AFTER CONSIDERING THE RELEVANT FACTS, HA S RIGHTLY DELETED THE ADDITIONS MADE BY THE ASSESSING OFFICER. WE DO NOT FIND ANY ERROR IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), H ENCE, WE INCLINE TO UPHOLD THE ORDER OF THE COMMISSIONER OF INCOME TAX ( APPEALS) AND DISMISS THE APPEAL FILED BY THE REVENUE. 12.0 ON SIMILAR FACTS THE HONBLE PUNJAB AND HARYANA HIGH COURT IN [2010] 195 TAXMAN 273 (PUNJ. & HAR.) PARAMJIT SINGH VS. INCOME-TAX OFFICER HELD AS UNDER: IT IS A WELL-KNOWN PRINCIPLE THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE THE DOCUMENT CONTAINS ALL THE TERMS AND CONDITIONS. SEC TIONS 91 AND 92 OF THE INDIAN EVIDENCE ACT, 1872 INCORPORATE THE AFORESAID PRINCI PLE. ACCORDING TO SECTION 91, WHEN TERMS OF A CONTRACT, GRANTS OR OTHER DISPOSITI ONS OF PROPERTY HAVE BEEN REDUCED TO THE FORM OF DOCUMENTS, THEN NO EVIDENCE IS PERMISSIBLE TO BE GIVEN IN PROOF OF ANY SUCH TERMS OF SUCH GRANT OR DISPOSITIO N OF THE PROPERTY EXCEPT THE DOCUMENT ITSELF OR THE SECONDARY EVIDENCE THEREOF. ACCORDING TO SECTION 92, ONCE THE DOCUMENT IS TENDERED IN EVIDENCE AND PROVED AS PER THE REQUIREMENTS OF SECTION 91, THEN NO EVIDENCE OF ANY ORAL AGREEME NT OR STATEMENT WOULD BE ADMISSIBLE AS BETWEEN THE PARTIES TO ANY SUCH INSTR UMENT FOR THE PURPOSES OF CONTRADICTING, VARYING, ADDING TO OR SUBTRACTING FR OM ITS TERMS. THEREFORE, IT FOLLOWS THAT NO ORAL AGREEMENT CONTRADICTING/VARYIN G THE TERMS OF A DOCUMENT CAN BE OFFERED. ONCE THE AFORESAID PRINCIPAL IS CLEAR, THEN IN THE INSTANT CASE, OSTENSIBLE SALE CONSIDERATIONDISCLOSED IN THE SALE DEED HAD TO BE ACCEPTED AND IT COULD NOT BE CONTRADICTED BY ADDUCING ANY ORAL EVID ENCE. THEREFORE, THE ORDER OF THE TRIBUNAL DID NOT SUFFER FROM ANY LEGAL INFIRMIT Y IN REACHING TO THE CONCLUSION THAT THE AMOUNT SHOWN IN THE REGISTERED SALE DEED W AS RECEIVED BY THE VENDORS AND DESERVED TO BE ADDED TO THE GROSS INCOME OF THE ASSESSEE. [PARA 4]. IN THE INSTANT CASE AN UNDATED LOOSE SHEET WAS FOUN D WITH THE DETAILS OF COST OF LAND WITH THE REGISTERED COST AND THE TOTAL AMOUNT. THE ASSESSEE ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 13 AS WELL AS THE VENDOR HAVE DENIED HAVING EXCHANGED ANY ON MONEY FOR TRANSFER OF THE LAND. THE DEPARTMENT HAS NOT MADE A NY EFFORT TO ASCERTAIN WHO HAS WRITTEN THE DOCUMENT. NO OTHER EV IDENCE WAS BROUGHT ON RECORD TO PROVE THAT THE ON MONEY HAS BE EN EXCHANGED BETWEEN THE PARTIES. IT IS SETTLED ISSUE THAT THE F INAL CONSIDERATION AS PER REGISTERED DOCUMENT IS THE ACTUAL CONSIDERATION UNLESS IT IS PROVED OTHERWISE. IN THIS CASE NO OTHER EVIDENCE IS AVAILA BLE TO DISPROVE THE CONSIDERATION REGISTERED. THEREFORE, THIS CASE IS S QUARELY COVERED BY THE DECISION OF THIS COORDINATE BENCH AND THE CASE LAW CITED (SUPRA). ACCORDINGLY, WE HOLD THAT THE A.O. HAS NOT MADE OUT A CASE FOR ON MONEY PAYMENT AND WE DO NOT FIND ANY INFIRMITY IN T HE ORDER OF THE LD. CIT(A) AND THE SAME IS UPHELD .THE APPEAL OF THE RE VENUE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT O N 18 TH AUG17. SD/- SD/- ( . ) ( . . ' ) (V. DURGA RAO) (D.S. SUNDER SINGH) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 18.08.2017 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT THE ACIT, CENTRAL CIRCLE, VIJAYA WADA 2. / THE RESPONDENT SRI KOSARAJU KOTESWARA RAO, GOW THAM CONCEPT SCHOOL, D.NO.8-339, BYPASS ROAD, SHANTI NAGAR, GUDI VADA, KRISHNA DIST. ITA NO.67/VIZAG/2013 K. KOTESWARA RAO, GUDIVADA 14 3. + / THE CIT, VIJAYAWADA 4. + ( ) / THE CIT (A), VIJAYAWADA 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM