ORDER
R.D. Agrawala, Judicial Member
1. In this second appeal preferred by the assessee, the addition of Rs. 50,000 made over and above the sale consideration of Rs. 3 lakhs shown in the sale deed dated 3rd January 1973 for the purposes of computation of capital gains has been objected to, inter alia, on the ground that no such amount was paid to her by the buyer who only with a view to purchase peace with the department, by way of an affidavit submitted during the Voluntary Disclosure Scheme, disclosed the additional payment, as was evident from the contents of the affidavit of the buyer Mr. Bishanlal according to which, he had filed the affidavit only to avoid harassment from the department.
2. The appellant absented despite notice. We have heard the learned departmental representative and proceed to dispose of the matter on merits.
3. On facts, the appellant sold a property located at Tilak Road to M/s. Bishanlal & Co. for a total consideration of Rs. 3 lakhs through a registered sale deed dated 3rd January 1973. While a sum of R’s. 25,000 was paid at the time of executing the agreement, another sum in similar denomination was paid at the time of registration, the balance of Rs. 25,000 to be paid in 5 equated half yearly instalments beginning from 30th June, 1973 carrying on interest at the rate of 12% per annum.
4. During the assessment proceedings Shri Bishanlal when summoned by the Income-tax Officer stated that he had in fact paid a sum of Rs. 3,50,000 and not Rs. 3 lakhs.
5. The Income-tax Officer made an addition. On appeal, the Appellate Asstt. Commissioner vide order dated 31-10-1979 directed the Income-tax Officer to afford an opportunity to the appellant to cross-examine Shri Bishanlal on this issue. In second innings Shri Bishanlal filed an affidavit confirming the payment of Rs. 3,50,000 adding that he had filed the return under Voluntary Disclosure Scheme admitting therein the excess payment of Rs. 50,000. the Income-tax Officer took the same view and computed capital gains on total consideration of Rs. 3,50,000 which was also confirmed by the first appellate authority. Hence the present appeal.
6. As is evident from the sale deed registered on 3rd of January 1973, the sale consideration stands at Rs. 3 lakhs. Shri Bishanlal in the Voluntary Disclosure Scheme admitted having paid another sum of Rs. 50,000 at the time of registration to which, however, there is no contemporaneous record or evidence. We do not feel impressed by the argument advanced by Shri M.L. Kuppusjvamy, learned departmental representative that factum of payment of Rs. 3,50,000 having been made by the purchaser as against the sale consideration of Rs. 3 lakhs as per the sale deed, the authorities below were justified in accepting the contention of Shri Bishanlal. Our reasons for disagreement are two-fold. Firstly, no equiry has been made by the authorities below to find out the sources of Shri Bishanlal for testing the veracity of his statement according to which additional sum of Rs. 50,000 was paid by him. If this sum was really paid he must have shown it in his books for which the source could be gone in to, especially in view of the consistent denial about the receipt of the additional sum by the appellant. Secondly, such evidence also stands precluded by virtue of provisions of Sections 91 & 92 of the 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, we are unable to give weight to the statement of Shri Bishanlal to prove that not the sum of Rs. 3 lakhs but an amount of Rs. 3.5 lakhs passed on from them to the appellant as sale consideration.
7. We are also not impressed by the contention raised by the learned Senior Departmental Representative that some money passes away over and above the sale consideration shown in a sale deed. Firstly we are not aware of any such practice and secondly even if in some stray cases it happens, it would be too risky to draw an inference and standardise it in law.
8. In the result, the appeal succeeds and is allowed.