TMI Blog1997 (9) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 loose sheets regarding cash transactions and another 178 sheets containing cash transactions are real and genuine books of account of the assessee, partners and firm of M/s. Bansal Brothers, and M/s. Chhattisgarh Iron and Steel Works, pertaining to the unaccounted business not disclosed before the department in its regular return of income. It was the case of the assessee that these documents seized by the department were fabricated by Lalson and Rajan, two accountants of the assessee on directions of one Mr. Bakshi. In first appeal, after hearing the assessee's counsel and the Department's Representatives, the additions were deleted by the learned CIT(Appeals) holding that the documents were fabricated by two Accountants at the instruction of Mr. Bakshi. 2. There was prolonged hearing before the Tribunal. Either of the parties sought adjournments for some reason or other and the matter was finally fixed for hearing on 21-2-1985 on which date, the Departmental Representative sought an adjournment on the ground that the seized papers were not available since they were sent for the expert's opinion. In the adjournment application, it was mentioned that since March month being bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Works which only shows that the Tribunal has decided the issue in favour of the assessee appreciating the experts' opinion produced by the assessee. Thus, he submitted that the evidence now adduced by way of expert's opinion by the department should be taken note of. Supporting the expert's opinion produced by the revenue, the learned D.R. submitted that though in the cross-examination, minor discrepancies were admitted due to natural variation that may occur, he being well experienced and qualified person, his opinion cannot be brushed aside. The learned Departmental Representative submitted that the statements of Shri N.B. Lalson and Shri Rajan cannot be accepted and taken note of since they are interested parties who still continued to be in the services of the assessee. Thus, he submitted that the evidence now adduced by the revenue in the form of expert's opinion should be taken note of and should be admitted as an evidence and the matter calls for fresh decision in view of the above. In the alternative, the learned Departmental Representative submitted that the matter requires to go back since the assessee's experts were not cross-examined. 6(b). Opposing the above submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he speed similar in both the questioned and admitted writings. 8. The pictorical effect is striking the similar in both the questioned and admitted writings. The learned counsel further brought to our attention the expert's opinion given on page 53 (page 8 of the opinion). This is comparative study of the original deposition of Mr. Lalson made before the First Class Magistrate, Durg and all the 11 questioned documents executed in the 14 photographs in set No. 1. Hence deposition made before Magistrate in 4 pages, as Set No. 4. After studying this, he certifies as under :--- "I have carefully and thoroughly examined the above referred 11 questioned documents exhibited in 16 photographs in set No. in original as well as in the enlarged photographs thereof and also the admitted document of affidavit of Shri N.B. Lalson dated 23-4-1986 of four pages in original as well as the enlarged photographs thereof as in set No. 4 and found that the handwriting and digital work in all 11 questioned documents from Q 1 to Q 11 in 16 enlarged photographs are identical with the handwriting and digital work in the affidavit dated 23-4-1986 of Shri N.B. Lalson referred above as in set No. 4. I am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not possible to express any definite opinion on the writings marked Q-1/3, Q-4, Q10/1 and Q-10/3 on the basis of the material at hand." 7. Here before us there are two sets of opinion, one held by the assessee and the other by the department. The opinion by the assessee's experts on the handwritings are detailed, specifying differences and similarities, with some other set of alleged writings. Q-1 to Q-11/3 are of the disputed documents, A1 to A10 to A-37 are of Mr. K.K. Bansal, standard and specimen writings. L- 1 to L-7 are of Mr. Lalson. In the opinion of Mr. Pillay, he specifically states that in Q1 to Q11 and A1 to A37, the following differences have occurred :---- '(a) Capital letter "T" are different. (b) The execution of capital letters is quite different in both the sets. (c) The word 'for' is executed in quite different manner and letter 'f' is also executed in different manner in both sets. (d) the letter 'h' is executed in different manner. (e) Capital letter 'P' is executed in different manner. (f) The lower curve in the disputed writings are executed on the top, but it is executed like small letter 'I', it is one of the most significant different betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not of itself form the basis for a conviction." In the case of Chatt Ram v. State of Haryana AIR 1979 SC 1890, Hon'ble Supreme Court held that "Expert opinion of the handwriting, even if admissible, was not a safe basis for finding a forgery". In other words, so as to form an opinion in a case like this expert's opinion is admissible under section 45 of the Evidence Act which reads as under :---- " Opinions of experts --- When the Court has to form an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identify of handwriting or finger impressions are relevant facts. Such persons are called experts." As a general rule, the opinion that of beliefs of 3rd parties are irrelevant and inadmissible. It is the duty of the Court to form its own opinion on the facts stated. But there are few exceptions to the above rule, when the question involved needs experience or knowledge or where special study of subject or subject experience is necessary. In such case, experts' help be sought under section 45 of the Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of legal provisions. Of all kind of evidence admitted, this is the most unsatisfactory." 11. Section 73 of the Evidence Act permits comparison of signature, writing or seal with others admitted or proved. Section 73 reads as under :--- 'Section 73. Comparison of signature, writing or seal with others admitted or proved --- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." Section 45 states as to who is an expert and section 47 explains as to who is a person said to be acquainted with the handwriting of the another person. Section 45 of the Evidence Act has already been reproduced above. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is always not necessary." Answering question No. 18, he states that" though I compared 'S' of stock in Q 1 with stock of A 2 with the letter 'S'; whereas it is capital in Q 1, hence letter 'S' is not comparable. Answering question No. 19, he states that "I agree that all the words with 'S' in A 1 are part of the sentences. As it is in the book form I say that 'S' of the statement in the second line of A 1 is capital 'S'. 'S' of statement in line 4 of A 1 is small one and it is of different shape, than the disputed 'S'. Answering question No. 22, he states that " 'S' of stock in A 8 is of different shape that of Q1. They are dissimilar and is not connected with the letter 'T' ". Answering to question No. 23, he states that it is incorrect to say that the word 'Book' in Q 1 is in cramped space. He further states that :--- "Oval of 'oo's are not round in A2. They are also not round in Q 1. You can say that 'k' in Book of Q 1 looks like 'm' or 'w'. The letter 'k' in the word 'Books' in line 3 of A2 give an appearance of the letter 'h' whereas the same letter of the word 'book' against details appears like to be 'm' or 'w' as that of Q 1." Answers to Question Nos. 27, 28, 29, 32, 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. I agree that some difference will be there in pen and pencil writing depending upon the quality of the implements used for writing. Similar is the position with Bal pen. No. 36: In Q 1/2 it is pencil writing whereas Q 1, Q 1 / 2, Q 1/ 4, Q 4 are Bal pen writings. The writings Q 2/1, Q 3, Q 3/1, Q 5, Q 5/1, Q 5/2, Q 5/3, Q 6, Q 7, Q 8, Q 9, Q 10 are ink writings." 14. Handwriting may be proved by the evidence of a person familiar with such writings as provided under section 47 of the Evidence Act, or by the testimony of an expert competent to make the comparison on a scientific basis as provided under section 45 of the Act, or by the Court by comparison with a writing made in its presence, or admitted, or proved to be the writing of the person. In the case of Sarojini v. Haridas 26 CWN 113, it was held that "it is not difficult to forge the handwriting of almost any person, so that it may be impossible for even the most acute and experienced judge to discriminate between the false and the true" and it was further held that " it is too true that persons may be found willing for a sufficient consideration, to swear to any statement of facts." (per GRIER, J.) in Turner v. Lucia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tants in the cross-examination before the ITO and the IAC along with the probabilities of the case coupled with the incorrect entries and also the entries contrary to the principles of accountancy found in 47 sheets, which also exhibit the intention of the two accountants to show more profits, we are fully convinced that the loose sheets seized are false and fabricated. The case of the department is based purely on presumptions, surmises and conjectures. To prove the genuineness of the seized three sets the department failed to prove the interlacing and interlinking between the entries found in the three sets of loose sheets seized and the entries in the regular books of account. Only on the basis of the entries found in the seized sheets the revenue wanted to build up the case that the assessee is doing No. 2 business. The assessee has proved beyond doubt that the seized sheets are false and fabricated. Further the CIT(Appeals) had dealt with the points raised by the IAC, the Sr. D.R. and ADI effectively and given his wording. We, therefore, fully agree with the finding given by the CIT(Appeals) that the loose sheets are false and fabricated and in deleting the addition made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the seized original material could have sent the handwriting to the handwriting Expert to find out whether they are really in the handwriting of K.K. Bansal. Even before us, the learned Departmental Representative has taken two adjournments on the ground that the hand-writing has been referred to the Hand-writing Experts and wanted us to adjourn the hearing till the opinion of the Hand-writing Expert is received. It is surprising that even in the absence of such a material evidence, the learned D.R. proceeded with the hearing of the case. On the other hand, the assessee has obtained the opinion of the Handwriting Experts from Calcutta as well as from Nagpur, the copies of which are found at pages 154 to 182 of the assessee's paper book No. 2, wherein the Experts clearly opined that it is not in the handwriting of K.K. Bansal though the disputed handwriting referred to the Handwriting Expert's is a photostat copy. Had the department obtained the opinion of the Handwriting Expert that would have probably helped the revenue prosecuting the case. In other words, the finding given by the Tribunal is not based on the evidence in the form of the department's expert's opinion. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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