9911796707
TMI Blog2024 (1) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the survey operation that no consideration was passed on to the vendor Sri M. Subba Reddy. Subsequently, the assessee filed his return of income for the AY 2004-05 on 24/12/2004 admitting a total income of Rs. 81,550/-. In the return of income the assessee admitted a loss of Rs. 37,654/- from the business activity of purchase and sale of sites in respect of the land acquired from Sri M. Subba Reddy for a consideration of Rs. 98,91,000/-. In the return of income it was also stated by the assessee that out of the sites purchased from Sri M. Subba Reddy, two sites were sold during the year 2004-05. During the course of assessment proceedings, in the statement recorded from the assessee, the assessee stated that Rs. 98,91,000/- was paid to the vendor Sri M. Subba Reddy on the date of registration of the sale-cum-GPA Agreements itself ie., on 08/07/2003. Regarding the sources for such investment, the assessee explained that he paid the purchase consideration out of the amounts received as advances from 30 persons and produced the confirmation letters from them. Thereafter, it was noticed by the Ld. AO that the 30 persons who stated to have been advanced to the assessee are agricultur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee vide order dated 02/08/2007 by holding that in the absence of any information or document in the record available with the Department relating to any purported cancellation deeds it cannot be said that there is a mistake apparent from the record attributable to the order passed u/s. 143(3) of the Act, dated 29/03/2005. Aggrieved by the order of the Ld. CIT(A), the assessee preferred an appeal before the Hon'ble ITAT, Visakhapatnam. On appeal, the Tribunal has passed the order in ITA No. 415/Viz/2007, dated 19/07/2010 wherein the Tribunal has remitted the matter back to the file of the Ld. AO with a direction to admit the cancellation deeds and to re-examine the entire issue in the light of these documents. Giving effect to the directions of the Hon'ble Tribunal, the Ld. AO passed a detailed consequential order u/s. 154 r.w.s 254 of the Act on 30/12/2011 wherein the Ld. AO sustained the addition of Rs. 35,96,210/- made in the original assessment order towards unexplained investment. Against the consequential order of the Ld. AO, dated 30/12/2011, the assessee preferred an appeal before the Ld. CIT(A), Vijayawada. On appeal, the Ld. CIT(A) discussed the issues at length and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Act. The Ld. AR further submitted that the land owner (Vendor) received all the payments directly from various parties and subsequently in the year 2004, the land owner cancelled the agreement of sale-cum-GPA by stating that he has not received any consideration. The Ld. AR further submitted that the assessee, being unaware of this fact, filed a rectification petition u/s. 154 of the Act, which was dismissed by the Ld. AO and on appeal the Ld. CIT(A) also dismissed the appeal and therefore the assessee filed an appeal before the Tribunal in the first round of proceedings. On appeal of the assessee, the Tribunal remitted the matter to the Ld. AO to examine the cancellation deeds and decide the issue afresh. However, in the consequential order passed giving effect to the directions of the ITAT, the Ld. AO again has made the addition of Rs. 35,96,210/- in the hands of the assessee which was sustained by the Ld. CIT(A). He therefore pleaded that the addition made by the Ld. AO and confirmed by the Ld. CIT(A) is not sustainable in law and therefore the same may be deleted because while passing the consequential order, the Ld. AO has not considered the directions issued by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed by the Ld. AO. Therefore considering all the above facts, the Ld. DR pleaded that since there is no error in the orders of the Ld. AO and the Ld. CIT(A), the same may be upheld. 6. I have heard both the sides and perused the material available on record as well as the orders of the Ld. Revenue Authorities. This is the second round of proceedings before the Tribunal. On perusal of the facts and circumstances of the case in toto, it is an admitted fact that the assessee himself has admitted on disclosure of income of Rs. 35,95,210/- by stating that to buy peace he is accepting to make the addition and subsequently the assessee retracted the same by filing the rectification petition u/s. 154 of the Act before the Ld. AO by relying on the registered cancellation deed dated 29/11/2005 executed by the owner of the land Mr. M. Subba Reddy. On this aspect, the contention of the assessee is that the land owner cancelled the initially registered sale agreement-cum-GPA (dated 08/07/2003) by executing a registered cancellation deed dated 29/11/2005 before the SRO on the ground that he has not received any sale consideration under the original sale agreement-cum-GPA. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is voidable, the court may if the defendant has received any benefit under the instrument from the other party, require him to restore, so far as may be, such benefit to that party or to make compensation for it; (b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefited thereby. 7. From the plain reading of section 31, 32 & 33 of THE SPECIFIC RELIEF ACT, 1963, it is clearly mentioned that any instrument which has been registered under the Indian Registration Act, 1908 (16 of 1908) has to be cancelled by the Civil Court by way of Decree only and then only the SRO can implement the cancellation of the earlier instrument so registered with them. In the present case on hand, there is no Decree obtained from the Civil Court by the Land Owner with regard to cancellation of the earlier agreement and therefore, the registered canc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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