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TMI Blog2021 (5) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... of hearing, an adjournment application has been moved on behalf of the assessee wherein no reasons for seeking adjournment appear to have been given. The stated reason read as under: "Dear Sirs, With reference to above, the Bench is requested to kindly adjourn the hearing in the case. Thanks and Regards." 3. However, on considering the above mentioned grounds, in the context of the facts on record after hearing ld. Sr. DR, it was deemed appropriate to proceed with the present appeal ex-parte qua the assessee appellant on merits. 4. The relevant facts of the case are that an addition of Rs. 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 Rs. 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that it is the only document which has been made available as an evidence cannot be whimsically discarded. The order is silent on the aspect whether ultimately pursuant to this Ikrar Nama/Agreement to Sell any Sale Deed was finally executed in respect of the said land between the parties or not. I agree that the prevalent practice of under-reporting of Sale price generally by the purchaser to reduce the stamp duty costs etc., are realities which cannot be overlooked and also can neither be ignored by the 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 utili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by documentary evidence. The Section contains two exceptions, two explanations and five illustrations, it is seen that in order to avail of the shelter of this Section, it is necessary that the document be produced so as to prove its contents. It may be considered that the said Section enunciates that the admission of oral evidence be excluded for proving the contents of the document duly signed and excluded by the two parties except in cases where secondary evidence is allowed. This principle as I understand 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 Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsupported, Oral evidence stands excluded. For the purpose of contradicting, varying, adding to, or subtracting from the terms of the written document or Contract and primary evidence some unimpeachable documentary evidence needs to be brought on record to show that the Ikrarnama/Agreement to Sell was subsequently altered and the alteration was mutual and not unilateral. 10. Reverting to the facts of the case, it is seen that in the facts of the present case, as noticed earlier also, the preliminary 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or rejected. 12. Having addressed the manner in which the documentary evidence, namely the 'Ikrarnama' - Agreement to Sell and the Affidavits are to be considered where the basic/primary facts itself are missing namely whether the ownership of the specific land ever vested with the assessee/his mother or not and if yes, was it ultimately sold and if yes, then again to whom and at what price, I am alive to the possibility that the necessary queries and findings may also throw up some 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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