TMI Blog2021 (5) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... and reduce Stamp Duty etc., and then, after the Sale stands concluded, to subsequently very conveniently deny the correctness of the Agreement to Sell 'Ikrarnama'. If the document has been signed and signatures are not denied consequences follow. In case, signatures are denied then forensic examination becomes necessary. Hence in such circumstances the correctness of the 'Ikrarnama' cannot be out rightly discarded and the authenticity of the same, including the signatures of the parties need to be forensically examined and the witnesses to the document also would need to be examined. Parties cannot be allowed to treat the document/agreement entered into between them casually or disown them at their convenience as such actions may invite criminal consequences for the crimes of forgery and perjury. In the facts of the present case, the tax authorities therefore need to ascertain and verify whether the signatures on the Agreement to Sell 'Ikrarnama' has been disowned by the purchaser as a forgery. These are all relevant issues for consideration and the tax authorities cannot evade the responsibility to ensure that only correct and due taxes are collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The relevant facts of the case are that an addition of ₹ 40 lacs was made in the hands of the assessee on account of deposits found made in the assessee's bank account. The assessee explained the same as being sourced from sale of land measuring 11.28 Marla (Muraba No. 51, Kila No. 4/1/1 Khewat No. 246, 277) sold to Shri Mehar Singh S/o Shri Babu Ram of Pehowa, who was the purchaser. The relevant extract from the assessment order reads as under: 2. .........cash of ₹ 40,00,000/- was deposited in his bank account out of sale of property to Sh Mehar Chand S/o Sh Babu Ram, Pehowa during the financial year 2009-10 relevant to assessment year 2010-11. From the perusal of lkrarnama dated 02.06.2010, it is noticed that agreement was made between mother of the assessee. Smt. Krishna Devi W/o Sh Ramesh Kumar R o Pehow and Shri Mehar Chand S/o. Sh. Babu Ram. Pehowa on 02.06.2010 to sell land measuring 11.28 Marla (Muraba No. 51, Kila No. 4/1/1 Khewat No. 246, 277) for ₹ 40,00,000/- and the whole amount of ₹ 40,00,000/- has been received in cash....... 4.1. However, the purchaser as per record denied having paid 'Biyana' in terms of 'Ikrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal as the final fact finding authority. The purchasers have been seen to be avoiding the need to explain the availability of moneys spent to make the purchases and have been noticed to under- report the purchase price. No doubt there may be times where the sellers may also help the purchasers innocently or knowingly to hoodwink the authorities. It goes without saying that these condemnable efforts whenever in connivance or unilaterally in violation of the laws of land are to be strictly restrained and penalized. The fact that the direct beneficiary of such under reporting etc. generally are the purchasers cannot be disputed. The motive to reduce Stamp duty costs and utilize funds on which income tax has not been paid cannot be brushed under the carpet to the prejudice of ignorant agriculturist land owner selling their farm lands and receiving cash payments for such sale. These are largely non-taxable events for the agriculturists. These observations of prevalent practices is not a justification for condoning such insupportable actions as it goes without saying that such acts of under-reporting by either the purchaser or the seller are unacceptable in law. The practices have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstand is based on the 'best evidence rule'. The best evidence rule does not demand the greatest amount of evidence which can possibly be given of any fact, but its aim and purpose is to prevent the introduction of any evidence other than the document itself duly signed by the two consenting parties. The Rule is there on the Statute for the prevention of fraud or when better evidence available with a party is withheld. In such a background it can be fair to presume that the party has some sinister motive for not producing the best evidence which if offered his design would be frustrated. Herein the reduction of Stamp Duty paid or consequences for the purchaser under the Income Tax Act are valid areas of concern. It need be clarified that Section 91 alongwith the addendum Sections of the Indian Evidence Act referred to lays down the best evidence rule but it does not prohibit any other evidence where writing is capable of being construed differently and which may show how the parties understood the document. 9.3. Here, it needs to be also borne in mind that a written document duly signed by both the parties has a certain sanctity as parties having taken care to put in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary facts i.e. ownership of the specific land with the assessee/his mother; subsequent sale thereof if any, and if 'Yes' at what price have not been addressed. 11. Addressing the alternate explanation filed at the appellate stage by way of an Affidavit, I am of the view that the explanation cannot be out rightly discarded. It needs to be borne in mind that some assessee's like the present assessee are not necessarily seasoned tax litigators. The assessee's exposer to the nitty-gritty of tax litigation and the available legal expertise cannot be expected to be at par with the legal and tax administrative training of the Appellate Authority. The explanation which possibly could and should have been given at the first instance many a times has been seen to come at the Appellate stage. Thus, even if the explanation offered apparently out of desperation, was an alternate explanation by way of Affidavit, as the assessee admittedly had failed to get relief on the main plea even then it is not expected from the tax authorities to arbitrarily reject it without any discussion. If the rejection of the Affidavit has to be upheld then its rejection must be in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me contrary facts not placed on record. It needs be addressed that the presumption that claims are correctly made are open to verification and in case the ownership of the land by the mother of the Assessee itself is disputed, then the assessee may be forewarned of the possible consequences that would come into play. No doubt, the correctness of the alternate claim be examined on merits. However, in case the ownership at the relevant time is established and further sale thereof is also an accepted fact then keeping the prevalent malpractices and deprecating them for the purposes of the present proceedings since only the correct income is to be brought to the tax, in addition to the test of human probabilities, it may be necessary to examine what was the correct value of the specific land at the relevant point of time. This enquiry in the facts is necessary and crucial for determining the source of cash deposit and its taxability. It needs to be borne in mind that not to so enquiry would tantamount to placing an unfair and impossible burden on a Seller to plead with the purchaser to acknowledge and accept the fact that part payment may have been from his/purchasers unaccounted money ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
