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TMI Blog2016 (12) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... ding the issue have neither been examined nor even been produced or directed to be produced for examination in reference to the bare affidavits filed by the assessee. As find that there is no discussion on the contents of affidavits whatsoever. Thus any conclusion without ascertaining the correctness of the affidavits is not permissible. It is further seen considering the doubts of the tax authorities that whether the specific piece of land was ancestral land which devolved on the assessee and his sisters by way of inheritance is a basic fact which too is not coming out from the record. It is noted that the AO has given a finding that from the bank statement of the assessee the payments to the sisters of their share is not reflected. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Village Garhi Alawalpur allegedly belonging to him and his two sisters, Ms. Prem and Ms. Bati. The sisters are stated to have executed a Power of Attorney authorizing the assessee to sell their share of land also. The sale of property has allegedly been registered by Tehsildar for which full sale consideration admittedly was received by the assessee. As per assessee s claim the sisters share of the sale proceeds was given to them in cash. Considering the facts the AO found no evidence of sisters having been paid their share and considering the remaining evidence also not supported the case rejected the claim of the assessee. The specific objection of the AO is extracted hereunder:- a) The assessee has adopted the cost of acquisition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e building has been estimated between 16 to 17 lakh therefore- keeping in the view of fact of the case the value of the building is taken at ₹ 16,50,000/- e) The value of acquisition cost of land as on 01.04.1981 is taken at ₹ 300 per marla on the basis of sale of Agrl. Land in village Garhi Alawalpur by Sh. Ajit Singh S/o Mohan vill- Garhi Alwalpur on 01.07.1981 vide which one canal land has been sold for ₹ 6.000/-. Copy of sale deed is placed on record. (emphasis provided) 3.1. As a result thereof, he made an addition of ₹ 14,51,987/- to the income of the assessee as per the following computation of the capital gain in the hands of the assessee:- Cost of acquisition of land a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted that by convention the sisters of the assessee as daughters in an inherited property would not have been given any share in the sale proceeds of the ancestral agricultural lands as daughters are generally not given any rights. Thus, the occasion for the assessee to pay his sisters for their so-called share would not arise and the bank accounts of the assessee have already been examined which show no such out flow of money towards his sisters. Accordingly, it has been argued that the addition in the hands of the assessee is warranted on facts. 5. I have heard the submissions and perused the record. In the first instance, I find that on record there is no reference to copy of Sale Deed being filed. Only a copy of Jamabandi as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l property need to be rejected as they run contrary to the laws of the land. There is no escaping the fact that by virtue of the Hindu Succession (Amendment) Act, 2005 No.39 of 2005 the Hindu Succession Act 1956 stands amended and in the Joint Hindu family governed by the Mitakshara law, the daughters alongwith the sons also have henceforth been given equal inheritance rights in the joint family property. As per assessee s own claim, the share of the sisters has been given to them. Thus, as far as the law is concerned, the daughters can not be denied their share in the ancestral property. However, if bowing to convention Ms. Bati Ms. Prem have chosen not to accept the sale proceeds from their share in the lands either as co-purchasers wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case, it is a suo moto decision of the assessee to file affidavits of the sisters affirming that they have received their share of the sale consideration. Thus, the affidavits in the facts of the present case are only written sworn statements of facts filed voluntarily by the deponents under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the deponents signature by a taker of oaths such as notary public or Commissioner of oaths. Thus, in the facts of the present case the legal position as understood in law is that in the absence of primary supporting fact the affidavit cannot be said to be an evidence of a fact. It can be used as an ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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