TMI Blog2013 (6) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... ocumentary evidence on record, oral evidence is not entitled to any weight as decided in Behari Lal Murarka and Ors. [1977 (11) TMI 130 - SUPREME COURT]. Thus in absence of any conclusive evidence, the document could not have been disbelieved. In favour of assessee. Disallowance for non business use of expenses - repair and maintenance on account of telephone expenses - Held that:- Disallowance of expenses has been made for non business purpose by making a reasonable estimate. Reasonable estimate is permissible for making such disallowances. Finding no merit in grounds raised in appeal. Against assessee. Disallowance of payment made to M.s Girish and Sons (HUF) - Held that:- The appellant has failed to explain the nature of services rendered for which such commission is claimed to have been paid. On being asked he is not even able to show as to whether there is any evidence for work done for such payment of commission claimed as an expenditure. For lack of evidence for services rendered, disallowance of expenses so made is found justified. Against assessee. - ITA No. 1161/JP/2010 - - - Dated:- 29-5-2013 - Shri B. R. Jain And Shri Vijay Pal Rao,JJ. For the Appellant : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o sale deeds dated 27/12/2003 registered with Sub-Registrar, Sanganer, Jaipur on 27/12/2003 itself. It was clearly stated in the sale deeds that the stamp duty on the registration of the said document aggregating to Rs. 4,63,960/- has been paid by seller of the property i.e. agricultural land. During the course of assessment proceeding, the Assessing officer issued summons u/s 131 of the Income Tax Act on seller Shri Sohan Lal Mali and enquired about the payment of registration charge amounting to Rs. 4,63,960/-. In his statement, the seller, denied of making actual payment for the aforesaid registration charges and subsequently, an affidavit reiterating the same fact was also filed before the Assessing Officer, which was pursuant to another notice issued u/s 131 of the Act. The said Shri Sohan Lal Mali also presented a copy of his income tax return showing that he had not claimed any deduction of the stamp charges alleged to have been paid by him. The Assessing Officer required the assessee to state his case on 09/11/2005 with regard to non-disclosure of payment of Rs. 4,63,960/- in the balance sheet placed on record or otherwise produce Shri Sohan Lal Mali before him. On the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided with an opportunity of cross examination. Principles of natural justice have an ancient ancestry. Law presumes that Man has an innate sense of goodness, of fairness, and of morality. Since certain principles are considered to be omnipresent in nature, Man's conscience has been able to discover them. These principles are not part of the codified law, but they permeate the codified laws like ether. Two main principles of natural justice are firstly "nemo judix in causa sua" or "nemo debet esse judex in propria causa sua" that "no man shall be a judge in his own cause". The second rule is "audi alteram partem" that is. "hear the other side". A corollary has been deduced from the above two rules and particularly the audi alterem partem rule, namely "qui aliquid statuerit, parte inaudita altera acquum licet dixerit, haud acquum fecerit" that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right" or in other words, as it is now expressed, :justice should not only be done but should manifestly be seen to be done". 1.5 In state of Kerela Vs. L.T. Shaduli AIR 1977 SC 1627, the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances what prevented the ld. AO to allow the opportunity of cross examination is best known to him alone. He has willfully done this to avoid the truth from surfacing. On the contrary he asked the assessee to produce the seller knowing very well that once the seller has turned hostile to the assessee in his (seller) own interest, the seller would not, in any case, come before the ld. AO on the request of the buyer assessee. 1.10 As per the provisions of Section 91 of Indian Evidence Act, 1872 "When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the from of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. " 1.11 Section 92 of Indian Evidence Act, 1872 provides that "When the terms of any such contract, grant or other disposition of property, or any matter required to the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by law to be reduced to the form of a document, have been proved as per the provisions of Section 91 of the Evidence Act, no evidence of any oral agreement or settlement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms." 1.16 Hyderabad Bench of ITAT in Smt. K. Narasamma Vs. ITO (1990) 32 ITD 494 held: "any evidence stood precluded by virtue of provisions of Sections 91 and 92 of the Indian Evidence Act, 1872, according to which, when the terms of any disposition of property, etc. have been reduced to the form of a document, no evidence shall be given in proof of the terms of such disposition of property except the document itself. This being the position, on facts and in law, no weight coulod be given to the statement of B to prove that an amount of Rs. 3.5 lakhs and not Rs. 3 lakhs passed on from B to the assessee as sale consideration." 1.17 The deed is synthesis of intentions of parties to an agreement and as the deed specifically provides that the seller has paid all the expenses arising on transfer of property, the mere fact that he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be rectified; or (c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument. (2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value. (3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced. (4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed: Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim." 1.20 Thus, there is a procedure ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is not entitled to any weight. This finds support from the judgment rendered by the Hon'ble Apex Court in the case of Behari Lal Murarka and Ors. AIR 1978 SC 300: 1978 (1) SCC 109. The appellant has also placed reliance on the judgment by the Hon'ble Punjab and Haryana High Court in the case of Paramjit Singh Vs. Income Tax Officer (2010) 323 ITR 588 where it has been held that once the document is tendered in evidence and proved as per the requirement of Section 91 of the Indian Evidence Act, then no evidence of any oral agreement or statement would be admissible as between the parties to any such instrument for the purpose of contradicting, varying, adding or subtracting from its terms. In the present case in appeal, the sale deed was a duly registered document having recital of payment of stamp registration charges by the seller. The assessee had thus discharged its onus that lay upon him by laying such document on record. In absence of any conclusive evidence, the document could not have been disbelieved. We, therefore, do not find any justification in treating the payment of Rs. 4,63,960/- as paid by the appellant and on that basis, the addition made is found unjustified. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
