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TMI Blog2013 (6) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment proceedings. The action of the Ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the action of the Ld. AO being against the principles of natural justice. 2. In the facts and circumstances of the case and in law, the Ld. CIT (A) has erred in confirming the disallowance of Rs. 16,549/- out of Repair and Maintenance Expenses. The action of the Ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the said disallowance of Rs. 16,549/- 3. In the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in confirming the disallowance of Rs. 42,000/- under the head Commission Expenses. The action of the Ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be grated by quashing the said disallowance of Rs. 42,000/-. 4. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in confirming the disallowance of Rs. 23,442/- out of Telephone Expenses. The action of the Ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee's counsel made elaborate arguments and also filed written statement, which are reproduced as under:- 1.1 The registered sale deed confirms that the stamp duty was paid by Shri Sohan Lal Mali. This confirmation of Shri Sohan Lal Mali in the sale deed is not disputed by the ld. AO. This apparent fact is not accepted by the lower authorities. Apparent is real. Any party who alleges that apparent is not real the onus heavily lies on such alleging party to prove that apparent is not real. Reliance is placed on the judgment of Hon'ble Supreme Court in the case of Commissioner of Income Tax Vs. Daulat Ram Rawatmull (1973) ITR 349 (SC). 1.2 A document in writing duly signed by the seller and registered under the provisions of law confirms stamp duty having been paid by the seller. Seller is confirming, through this registered sale document, that he has paid the stamp duty. 1.3 Only on the basis of oral evidence, Ld. AO has taxed the assessee. Mere oral evidence is not sufficient. This statement could become evidence only if opportunity of cross examination would have been provided. The ld. AO, without giving any opportunity of cross examination blindly relied on the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to provide an opportunity to the assessee to cross examine the Manager. 1.7 Hon'ble Supreme Court in the case of Bhupinder pal Singh (2003) 3 Supreme Court Cases 633 has held as under:- From Head Notes: "Natural Justice- No opportunity of cross-examination given to the appellant during both the inquiries-Held, order of removal passed in clear violation of principal of natural justice cannot be sustained." From Para 3 at page 636: "It appears to us that no opportunity was given to the appellant either during the inquiry made for the first time or in the second inquiry. Since the order passed is in clear violation of principles of natural justice, it is unnecessary for us to go into the merits of the other contentions raised. In the normal course, we would have set aside the order giving liberty to the respondents to hold a fresh inquiry. Since the appellant has superannuated and at this length of time, we think it is neither appropriate nor desirable to direct a fresh inquiry". 1.8 It was observed by the Hon'ble Apex Court that an order passed in violation of the principles of natural justice is a nullity as held in A.K. Kraipak Vs. Union of India A/R-1970 SC-150 RB. Shree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he registered document." 1.14 The Kerela High Court in Leelamma Ambikakumari and another Vs. Narayan Ramakrishnan AIR 1992 Kerela 115 at 119 held:- "Sections 91 and 92 of the Evidence Act is a complete bar for any party to set up a case that the consideration for sale is more than what is mentioned in the conveyance or in the contract. In the present case, the plaintiff has no case that the consideration mentioned in the document was not paid, or that there was any failure of consideration or that the consideration agreed to between the parties was of a different kind than what was mentioned in the document. The definite case of the plaintiff is that the real consideration for the sale was Rs. 16,000/- where as the conveyance shows the consideration to be Rs. 10,000/-. In view of the provisions contained in Sections 91 and 92 of the Evidence Act, the plaintiff is not entitled to plead such a case, nor he is entitled to adduce evidence in support of the same." 1.15 The Hon'ble Supreme Court in M/s Febril Gasosa Vs. Labour Commissioner and others AIR 1997(SC) 954 at 958 has held- A written settlement arrived at between the parties could not, therefore, be varied or modified except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the document itself or the secondary evidence thereof. According to Section 92 of the 1872 Act once the document is tendered in evidence and proved as per the requirements of Section 91 then no evidence of any oral agreement or statement would be admissible as between the parties to any such instrument for the purposes of contradicting, varying, adding to or subtracting from its terms." 1.18 The Hon'ble Jaipur Bench was seized of the legal issue of impact or Sections 91 and 92 of the Indian Evidence Act, 1872 in the case of Sunita Dhadda Vs. Deputy Commissioner of Income Tax (2012) 148 TTJ (JP) 719 (Copy Enclosed, PB 1 to 30). The Hon'ble Jaipur Bench following the Punjab and Haryana High Court judgment in Paramjit Singh Vs. ITO 323, ITR 588, in the said case, held that no other/oral evidence is admissible against the registered sale deed. 1.19 Section 26 of the Specific Relief Act, 1963 provides that- "When instrument may be rectified.- (1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956), applies) does not express their real intenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deleted. 5. On the other hand, Ld. D.R. placed reliance on the findings and conclusions reached by the Ld. CIT(A) in upholding the addition. 6. Heard parties with reference to material on record and case laws brought to our notice. Perusal of sale deeds placed on record reveals that the seller has paid the expenses for registration. There was thus, document evidencing payment made by Shri Sohan Lal Mali, the seller of the agricultural land on which the aforesaid amount of Rs. 4,63,960/- for stamp registration charges is under consideration. The Assessing Officer has recorded the statement behind the back of the assessee and collected information without allowing cross examination of said Shri Sohan Lal Mali. The said Shri Sohan Lal Mali was a witness of the Income Tax Department. It was, therefore, the duty of the Assessing Officer to have allowed opportunity to the assessee by way of cross examination even though the assessee had not asked for. Without cross examination, statement as such was of no evidentiary value nor such evidence could have been used against the assessee. This view finds support from the judgment rendered by the Hon'ble Apex Court in the case of Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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