Some provisions from the Indian Evidence Act – which may be relevant in proceedings under tax laws

[CA DEV KUMAR KOTHARI]

In the following table. In left column some provisions from the Indian Evidence act are reproduced with highlights added for easy understanding, analysis and catch words for memory. In the right column author has given his observations and comments, so far they may be useful in tax matters.

 

Provision from the Indian Evidence Act	Remarks and observations of author
Statements made under special circumstances
34. Entries in books of account when relevant - Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.	Entry in books of account are primary and conclusive evidence so far payables / liabilities recorded in books are concerned. In respect of receivable from others such entry alone will not be sufficient. Other evidence will be required. Entries in books of account which cast certain statutory, contractual and other obligations are evidence for such obligations or liabilities.
Illustration A sues B for ₹ 1,000, and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant but are not sufficient, without other evidence, to prove the debt.	A has to show evidence about receivable from B. However, if his book  shows ₹ 1000/- payable to C, then entry in books of A will be evidence for sum payable to C, and such entry can be used as evidence by C in his favour.
35. Relevancy of entry in public record, made in performance of duty - An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.	Evidences like certificate of incorporation of company are statutory and primary evidences based on statutory records. Similarly records taken on record by Registrar of Companies like return of allotment of shares and securities, register of charges, annual returns etc. are statutory evidences. By these evidences, company states a fact and the same is taken on public records. Therefore, such records are also relevant statutory evidences about facts stated therein.
Character when relevant 52. In civil cases character to prove conduct imputed irrelevant - In civil cases, the fact that the character of any person concerned is such as to render probable or improbably any conduct imputed to him, is irrelevant except in so far as such character appears from facts otherwise relevant.	Character of person including past character and conduct, may not be relevant to render probable or improbable any conduct imputed to him. Particularly when other documentary evidences are available, the character of person will not be relevant. Thus, evidence as per records will be important and one cannot take advantage of character of concerned person.
59. Proof of facts by oral evidence - All facts, except the contents of documents, may be proved by oral evidence.	Contents of a document is evidence to prove a fact. When there is no document, then only oral evidence can be used to prove a fact. Thus, contents of documents cannot be disproved by any oral statement or evidence.
60. Oral evidence must be direct - Oral evidence must, in all cases, whatever, be direct; that is to say; If it refers to a fact which could be seen, it must be the evidence of a witness who says he heard (sic. has seen it) it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds - Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable. Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.	Oral evidences must be direct. Means the person who gives an evidence, must himself have heard, seen, felt or perceived the same. It cannot be based on any other person having heard, seen, perceived or felt. In case of opinion the evidence can be based on documentary evidence in form of opinion or treatise of opinion etc. and oral evidence of expert may be waived if Court feels that it will be unreasonably costly and time consuming. As per author if opinion is in written document, then such document can be documentary evidence. If oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection. From this provision also it is clear that oral evidence is not relevant when documentary evidence is available.
61. Proof of contents of documents - The contents of documents may be proved either by primary or by secondary evidence.	Contents of documents may be proved by primary or secondary evidence. In case of shares issued by company, share certificate issued by company is primary evidence for allotment of shares so far the shareholder is concerned.  The letter of allotment, application for issue of shares and evidence of payment are secondary evidences, and will be useful, if the share certificate is disputed. In case of company, the register of allotment, register of shareholder, return of allotment etc. are primary evidence of shares allotted. For the public, the return of allotment is primary and statutory evidence because this is a public document available with company and the Registrar of Companies both for public information, inspection and obtaining copy. Entry in Register of members - is a book entry admitting liability by company towards shareholder. This  can be used by anyone against the company.
62. Primary evidence - Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original. Illustration A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.	Primary evidence means the document itself which is produced for the inspection of the Court. In case of share certificate the share certificate issued, or evidence of issue of share certificates, like Resolution of Board, counterpart of share certificate and return of allotment are primary evidences.
63. Secondary Evidence - Secondary evidence means and includes. 1. Certified copies given under the provisions hereinafter contained; 2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies; 3. Copies made from or compared with the original; 4. Counterparts of documents as against the parties who did not execute them; 5. Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original. (b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.	The provision relates to secondary evidence by way of copy of original documents a photograph or copy made  from original document, by a reliable process which ensure accuracy and a copy made from such copy by similar method is considered as secondary evidence.  A copy made from original document and compare and certified as such is a secondary evidence. However copy made from such a copy, from a certified copy is not a secondary evidence unless it is also compared with the original document. Oral evidence - neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original. Even in case of copies, an oral account is not a secondary evidence.
64. Proof of documents by primary evidence - Documents must be proved by primary evidence except in the cases hereinafter mentioned.	Documents must be proved by primary evidence, subject to exceptions provided. Entry in books of account are primary evidence, against the person whose books are concerned, so far liability is concerned, other primary documents provided to other party (creditor) are primary evidences in his hands. Therefore in case of shares issued, register of members, share certificates issued, return of allotment, annual return etc. are primary evidences against the company and in favor of other parties like shareholder and public.
74. Public documents - The following documents are Public documents- (i) Documents forming the acts, or records of the acts (a) Of the sovereign authority, (ii) Of Official bodies and the Tribunals, and (iii) Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country. 75. Private documents - All other documents are private. 81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents - The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.	Documents issued, taken on record and kept by Registrar of Companies are public documents. Presumption The Court shall presume the genuineness of every document purporting to…. of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. Thus books of account, register of members, returns filed with ROC and other statutory records and returns are presumed to be genuine.
94. Exclusion of evidence against application of document of existing facts. - When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.	When documents prove existing facts in clear language, and when it applies accurately to existing facts, then any other evidence cannot be given to show that it was not meant to apply to such facts.