Income Tax Returns and Related Issues

To start with Income Tax Return we should understand first everything about a PAN card:

1. What is a PAN Card?

The full form of PAN is: Permanent Account Number. This is a unique ten digit alphanumeric number provided by the Income tax department to each applicant. This is a sort of Financial Identity of the person to whom that that card belongs to.

2. What dose the Characters in the PAN number stands for?

A PAN card contains TEN characters which are alphanumeric, would like to educate you all that they are not random. A typical PAN is AEZPK0967L, in this the first three characters are ‘AEZ’ which are alphabetic series running from AAA to ZZZ, the fourth character of the PAN is ‘P’ in the above example which means ‘Individual’, ‘F’ stands for Firm, ‘C’ stands for Company and ‘H’ stands for HUF (Hindu Undivided Family), ‘A’ for Association of Persons (AOP), ‘T’ for Trust etc. The fifth character in the PAN No represents the first character of the surname of the PAN holder, now the numeric numbers in the PAN represents sequential number starting from 0001 to 9999. The last character in the above example is ‘L’ which represents a alphabetic check digit. For us to understand and remember is that we should check our PAN numbers with fourth and fifth character as they represent your status and surname. In case of any discrepancy we should immediately bring it in the notice of the issuing authority.

3. Just having a PAN number means that I have to pay Tax?

No it’s not that, paying tax depends upon the annual income of an individual.

4. How should I get my data corrected / updated in my PAN Card?

There is a form called as CSF form which needs to be filled up and you need to tick over the left box which ever is applicable. Further you need to submit the supporting documents to support your request for correction in the records.

5. I am a married lady now, I have my PAN card with my maiden surname, now I want to get the same changed/updated to my husband’s surname, what should I do?

It’s a very old tradition that the lady changes her maiden surname after her marriage, to change the surname from maiden name to husband’s surname the married lady needs to submit a correction form along with a proof of marriage and the valid documents are: marriage certificate, invitation card either side, publication in the newspaper. The PAN number remains the same only the surname changes in the new card.

6. Why a lady has to mention her father’s name in the PAN application form?

The reason to have father’s name always over the PAN card even for married ladies is that a married women’s status can change any time due to the following reasons : divorce taking place, death of husband, remarriage of the women, not changing the surname at all even after her marriage.

Therefore to identify her always it’s better to have the father’s name over the PAN card rather than the husband’s name.

7. I am a divorced lady now, can I get back my maiden surname in the legal documents such as Passport, PAN etc.

Yes you can do so; first of all you need to get the final divorced decree from the court, then the very first step towards getting back your maiden name is to apply for updated PAN card with the support of your divorce decree, this would be the starting of getting back all other legal documents into your maiden name.

These were some queries related to PAN Card which are most commonly being asked, now moving forward about the ITR matter: (Salary Class & Self Employed Category)

1. Why should I file an ITR?

Filing an ITR (Income Tax Return) is very important for every citizen as it’s a document which provide an information about your total annual income for the previous year, and if it exceeded the maximum amount them it become necessary to file your return, and you shall get the benefits of any tax paid in excess as a refund on the basis of your annual savings etc. In short it is your Financial CV.

2. What’ll happen if I do not file my ITR return at all?

Not filling your ITR is an offence U/s 276-CC of the Income Tax Act, 1961, howsoever income is getting taxed should file an ITR without any default.

3. I am getting Form 16 from my office, isn’t it sufficient enough?

No, it’s not sufficient enough as its not providing the complete picture of your income, its just showing your salary income, you may have a rental income from somewhere for example house property, your interest income from your savings or fixed deposits in the banks or post office. Hence, to cover all the area and to compute your actual total income of a given year you need to file an ITR for that.

4. What dose FY or AY stands for I completely get confused when some account personnel’s talks to me in these terms in my office?

I won’t provide you with the full forms or exact explanations of these terms, rather I shall try to make you learn the terms in a very easy way:

FY = foregone year or days gone by or in short previous year.

AY = evaluation year or gauging year.

See as per the accountancy a FY (previous year) starts from 1st of April and ends on 31st of March every year, then in most lay man’s term we all have to furnish our income details in the subsequent year called as AY (evaluation year), evaluation can only be done once we have made any earning in a given year, therefore always remember that FY shall always be one step behind from the AY.

For example if we are talking about our income for the year 2012 – 2013, then the FY start date would be 1st April, 2012 and its end date would be 31st March, 2013. Now whenever after 31st of March 2013 we file our ITR the AY for that ITR would be 2013 – 2014, meaning thereby that we are furnishing our income details which we made during the FY 1st April, 2012 to 31st March, 2013.

Hey!! Still not clear.

FY = First you earn, then AY = get your income evaluated.

5. I have filed my ITR electronically, now why I have to send the hard copy via post to Bangalore address?

It is a sort of notification to the Income Tax Department that you are through with the process of filing of return and all the data has been entered in the prescribed format and now they can start evaluation and processing the same at their end. Therefore, it is more like an acknowledgement to the department for the process of filling your ITR.

6. What dose ITR under scrutiny means?

‘Scrutiny’ means in another word ‘inspection’, meaning there by that whatever declaration etc you had provided to your CA or Financial Advisor or you yourself had mentioned in your ITR while submitting the same in the department, is under review and the department may come up and ask for any kind of proof to be produce in order to verify that whatever you have declared in that financial year was it correct or not.

This process of the Income Tax department is generally random, no specific person gets been targeted. Hence it’s always advisable to maintain all the supporting records of each financial years for which you are submitting your ITRs. Up till 7 years all records must be maintained, keeping the records electronically is better and less space consuming.

7. What dose ITR Refund means, can I get the same if I file my ITR?

It’s an amount received back from the Income tax department which you have already paid via tax to the government and you are claiming back some percentage out of it because as per the Income Tax Law you have fulfilled some of the criterion defined there to avail the tax benefits.

8. What do you mean by Income as per the Income Tax Law?

The word ‘Income’ is very broad and its meaning would be vast. In regard of a salaried person, all that is received from an employer in cash, kind or as a facility is considered as income. For a businessman, his net profits would constitute his income. Income can be from investments in the form of Interest, Dividend, and Commission etc. Under the Act, all incomes earned by persons are classified into 5 different heads, such as:

a. Income from Salary

b. Income from House property

c. Income from Business or Profession

d. Income from capital gains

e. Income from other sources

9. How much Tax am I liable to pay, how I will come to know about it?

For that you’ll have to review the Income Tax website:

http://law.incometaxindia.gov.in/DIT/Xtras/taxcalc.aspx or ask your CA or Tax Lawyer, they would be able to help you out.

10. I am a small time businessman; do I have to file my returns too?

Yes, if your business annual turn over is 10 lacs or above and your net profit is 1.20 lacs or above, then you are suppose to maintain the books and file an ITR for the same.

11. What do you mean by TDS?

It’s the tax which has been deducted out of total earning just at the source or disbursal or before transfer/paid in the account. You can review the details of the same in the form called as 26AS.

This way I, have tried to answer your some questions, there might be plenty of questions in your mind for which you are looking for logical answers, you can reach me via emailpranabroychowdhury@gmail.com.  I’ll try to answer your concerns.

The above mentioned article is purely the author’s point of view his versions and understanding, readers are requested to refer the government websites, for further clarifications.

Regards and Thanks to--

Mr. Pranab Roy Chowdhury

B.Com., MBL, LL.b

Advocate

Member: All India Federation of Tax Practitioners

Partner: M/s AP Associates Legal Consultant

--

Haider Ajaz 

Advocate

Alqaab (Titles) of Imam Ali bin Abi Taleb (as)

Among various titles, the most famous were:

Al-Murtaza (Murtadha) - The Chosen one of Allah
Amir al-Muminin (Ameerul Momineen) - The Commander of the Faithful
Imamul Muttaqeen - The Guide of the Pious and God fearing people
Mozhar al-Ajaaib (Mazharul Ajaib) - The Manifest of wonders
Madeenatul Ilm - The Gateway of the City of Knowledge
Saiyyidul Ausiya - The Chief of deputies of the Holy Prophet
Imamul Auliya - The Guide of the Saints
Asadullahul Ghaleb - The Ever Triumphant Lion of Allah
Lisaanullah - The Tongue of Allah
Yadullah - The Hand of Allah
Wajhullah - The Face of Allah
Nafse Rasulullah - The Soul of the Holy Prophet
Valiullah - The Friend of Allah
Siddeequl Akbar - The Greatest Truthful
Farooqul Aazam - The Greatest Distinguisher (between the truth and the falsehood)
Abu Turab - The Father of the Soil/Earth
Faateh-e-Khaiber - The Conqueror of Khaiber
Abul Aimmah - The Father of the Holy Imams
Akhu Rasulullah - The Brother of the Holy Prophet
Abul Eetam - The Father of orphans and the helpless
Haidar-e-Karrar - The Charging Lion
Safdar - Piercing lines, fighter


--
Haider Ajaz
(Advocate)

On the Occasion of International Mother's Day---Sayings of Syeda Fatima Zahra(s.a.) the MOTHER of Imam Husain (as), Imam Hasan (as) and Two Daughters

1. Praise and Eulogy is for Allah for the blessing and bounties which He has bestowed. And thanks to HIM upon what He revelated (to His servants) And Praise is for HIM upon the common boons and blessings which He bestowed upon His servants without their request And upon the comprehensive and complete blessings which He granted to all and sundry and gave it to us, consequetively. Those graces and favours which are uncountable.

And are irredeemable and uncompensatable due to their plentifulness of number. And the imagination of their end is out of the reach of human mind.
He invited the servant to thankfulness for the sake of the consecutive and continuous enhanecment of blessings. And opened the door of euloqy and Praise (of Allah) upon them so that He may make his favours and beneficences great and plentiful for them.

2. I testify that there is no Diety (Lord) except the sole and matchless Allah. And the testification of the singleness of Allah is a word that Allah has declared sincerity (as) it's reality, and made the hearts the centre of it's contact and union. And has made the specifications and research of the oneness of Allah's station obvious and evident in the light of meditation. The Allah Who can not be seen by the eyes and tongues are unable and baffled to describe His virtues and attributes. And the intelligence and apprehension of man is helpless and destitute from the imagination of his howness.

3. Allah made all the beings without previous matter and sample and shape and pattern. And made them wear the dress of life by His main and mights and created them according to His Devine will and Intention short of it that He might have needed their creatlon or have wished any benefit for Himself from their shaping and sketching except this that he wanted to give a proof of HIS wisdom and make the people (creations) aware about His obedience and submission and invited them to his servitude and worship and make His Invitation grand and ostentatious.

4. Allah fixed the reward for His obedience and torment for His insubordination and disobedience so that He may restraln His servants from His wrath and fury and lead them to His paradise.

5. And I testify that my father Mohammad (pbuh&hf) is the apostle and the servant of Allah. And Allah selected and chose him before appointing him at the post of Prophethood. And He named him before choosing and selecting him. And chose him before envoying and delegating him. Then all the creations were hidden and covered in the covers of unseen and were hidden amid the screen and curtain of fear and fright and stayed near the last and final border of non entity (nothingness) for Allah was aware of and knew the end of matters and because of His encompassing the incidents of times and ages and His knowledge of the predestinates.
Allah appointed him (as apostle) so that he may complete and finalise His matter and Implement His order and materialise His decreeds and predestinates.

6. Allah saw nations and groups had various different sects in their religion and scattered and staying on the verge of the fires of differences, busy with the their idol worshipping. They denied God with all the signs and symbols of HIM. (IRFAN) So Allah illuminated the darknesses through my father Mohammad (pbuh&hf) and removed the darknesses from their hearts, removed (cured) the blindness of the eyes.

7. My father (Mohammad (pbuh&hf) ) stood up with (his) guidance among the people. And saved them from perversion and aberration, and turned their blindness into enlightenment and guided them towards the firm religion. And called (invited) them to the straight way.

8. You the servants of Allah, are the ones to maintain His injunctions and prohibitions, and the carriers of His religion, and His relevation, and the trustees of Allah upon your souls, and the propagators of His religion among the other nations.

9. Oh the servants of Allah! (beware) the real leader from Allah, is present among you and the commitment has previously been made to you and the remaining and left over of the prophet hood has been appointed for your guidance.
That is the speaking book of Allah the truthful Quran, and a beaming and gleaming light, in which all the secrets and facts about the completion of man and his prosperity have been exhibited and illuminated. It guides from darkness towards light of guidance. It s followers are the subject of envoy of others.

10. The book of Allah is the guide of it's followers towards the pleasure of Allah. Listening (carefully) to it leads to the salvation. The enlightened and conspicuous evidences and proofs of Allah can be obtained through it. And (also the knowledge) of His interpreted intentions and fear invoking constraining prohibitions. His sufficing testimonies and conspicuous arguments, and desired virtues and allowed endowments and gifts and obligatory divine laws. (can be obtained from it)

11. Allah made the faith for you as a purity from polytheism (and infidelity).

12. And (made) service the cause of your getting distant (purification) from pride (egoism).

13. And rendered alms for the purity of your soul and flourishment and expansion of your sustenance.

14. And rendered fasting for the maintenance and firmness of your sincerity.

15. And Allah set Hajj for the consolidation and reinforcement of the religion.

16. Allah executed and rendered justice for the sake of putting together and harmonization of the hearts.

17. And (Allah set) the subordination and obedience of us (the household of the Prophet (SAW)) for the security of society's system and our Immamate as a safety from segregation and disunity).

18. And (Allah made) Jihad (holy war), the honour and glory for Islam and abjectness and humbleness for the infidels and the hypocrites.

19. And (Allah rendered) patience as a help for getting reward.

20. And (Allah caused) commanding goodness and forbidding to do evil for the amendment and correction of society and the common folks (public).

21. And (Allah made) the kindness to parents as a protection (shield) to His wrath and displeasure.

22. And Allah made joining and connecting with the kinship and cognition, the cause of lengthening of life.

23.And Allah made law of retaliation (revenge for homicide) as the security of blood (from being shed).

24. And Allah executed the vow performing as a medium for forgiveness.

25. And (Allah rendered) the correct use of weights measure (units) a medium for stopping from selling less (than actual).

26. And (Allah rendered) prohibition from drinking wine the cause of taking distance from contaminations (evils).

27. And Allah made the prohibition to accuse someone of adultery a protection (shield) for avoiding (His) curse.

28. And (Allah made) refraining from theft for the sake of positiveness and affirmation for modesty.

29. And Allah prohibited polytheism for the sake of (bringing about) sincerity in (His) adoration and worship.

30. Certainly, an apostle has come to you from among yourselves; grievous to him is your falling into distress, excessively solicitous respecting you; to the believers (he is) compassionate, merciful. So if you assay and recognise him you will find he is my father not the father of your women and the brother of my cousin, Ali (a.s.) not that of your men. And how nice a relation I have to him. So he propagated his prophetic (mission). He always used to turn his face from the polytheists. And fought against them till he beat them up. He would invite people towards Allah by wisdom, and beautiful admonition. He broke the idols and scattered the aggregation of polytheists in a way that they ran away (from the battle fields), so that finally the hidden secret of oneness of Allah became manifested by him. And he made the logic of religion reach the ears ((of the people) and settled down the foam of the camels of satan and turned the salogan yelling of those devils silent. And downed the agents of hypocrisy and mutual commitments of the infidels got dissolved till such time that, you (people) spoke to a group of enlightened and modest men with the words of oneness of Allah and sincerity.

31. You were on the edge of a fire ditch, and were a cup of drink and the morsel of a greedy one and a firebrand of every hasty one and were being trampled on (by other nations) and drank from the contaminated waters gathered over in ditches and your energy (food) was (secured by) the leaves of trees and desert grass. And for your abjectness and abasement you were always afraid that those around you might abduct you in the winking of an eye. So, Allah liberated you (of these misfortunes) through my father Mohammed (pbuh&hf). Inspite of it that he (pbuh&hf) was involved and at war against the intrepid and the hungry wolves of Arab and the stubborn refractoriness of the people of the books (Jews and Christians). Whenever his opponents would lit the fire of war, Allah extinguished it to your benefit.

32. Imam Hassan (A.S) said, 'on the Friday night I saw my mother (Fatima (a.s.)) standing in her arch of prayer. She was continuously kneeling and performing prostration till the dawn broke. I would hear her pray for the faithful men and women, but she did not at all pray for herself. I said, 'Oh mother why did you not pray for yourself like you prayed for others?' so she replied, 'Oh my son, first thy neighbour and there after your own house.'

33. The Holy Prophet (pbuh&hf) said to Fatima (a.s.) what is the thing which is a blessing for woman?' She said that, 'she must not see a man (stranger and not intimate) and a man must not see her.'

34. One day a lady came to Fatima (a.s.) said 'I have a weak old mother who does not know a few problems about her service (prayers). She has sent me towards you to question you (about them). Thus Fatima(a.s.) answered her (questions). And the number of her queries reached to ten and Fatima (a.s.) replied to all her questions. Then she (the woman got a shamed because of the high number of her questions. And said, 'Oh daughter of the Prophet (pbuh&hf), 'I do not put you to more inconvenience than this.' Fatima (a.s.) said, 'Ask me what you do not know. Have you ever seen a person who is one day hired to carry a heavy thing to the roof top from ground for an amount (equal to) a thousand dinnars (nearly a hundred thousand miskal (unit of weight) of gold) and he may feel himself tired.'
She said 'No'. Fatima (a.s.) said, 'I have been hired by Allah to get a wages which if the space between the earth and sky is filled up with pearls still (That wages) would he more than it for each of the questions I may answer you. Therefore, I deserve it that I must not feel tired exhausted.

35. Oh Allah! belittle me in my eyes and glorify and magnify Your station to me. And inspire me (about) Your obedience and the practice which may cause Your pleasure and the shunning and evading from things (matters) which are the cause of Your wrath, oh the most merciful of all! 36.

36. Oh Allah! content me with the sustenance you have granted me. And till such time that you keep me alive, hide me and make me sound and prosperous. And forgive me and take pity upon me when I die. (During death process). Oh Allah! do not help me in something that you have not predestined for me. And facilitate the achievement of that thing which you have predestined for me.

37. Oh Allah! bestow upon my parents and all those persons who have rights of their blessings and beneficiences upon me, the best of Your rewards. Oh my Allah, spare me the leisure and respite for the object for which You have created me. And do not let me be busy and involved (absolutely) in my commitments. And do not torment me when I ask forgiveness. And do not deprive me of what I yearn and question you for.

38. Underlying are the rhymes which Hazrat Zahra(s.a.) recited upon the mourning of Prophet's (pbuh&hf) demise. The person who smells the sweet fragrance of the grave of the Holy Prophet (pbuh&hf) so what if he does not smell any other fragnance for long times to come?
Agonies and anguishes and grief's poured upon me in such a way that had they poured upon days those would have turned into nights. (bleak, dark and bewildering).

39. The dust of sorrow covered the space of sky and the sun has faded and the bright day turned bleak. The earth has become dark and gloomy after the death of the Prophet (pbuh&hf) Woe! Alas! what the earth will have much of Jolting upon being separated and parted from him (pbuh&hf).
It is meritorious and befitting that the east and west of the world may weep upon the parting of Prophet (pbuh&hf) and the persons of Muzzir tribe and all of they rest of the Yemen tribes shed tears. And the great magnificent mountain of the existence and the hidden and covered Kabaah (House of ALLAH) and its pillars should shed tears. Oh the terminator and finaliser of the (series of) prophets! the light of whom is the source of blessing for the worlds inhabitants, Be the salutation and blessings of Allah the desender of Holy Quran upon you.

40. Following you (Prophet (pbuh&hf)) inequities (intrigues and revolts) took shape and variant voices were raised so that if you were present and supervising (things) all these differences and deviations would not have taken place. You set off (on the journey of eternity) from among us and now our condition is like the earth which becomes devoid of the beneficial rains. And your nation upset the order and discipline of matters. So be a witness and do not let their matter get out of your sight.

PROCEDURE TO BE ADOPTED BY COURTS IN A PARTITION SUIT WHEN A PLAINTIFF WANTS TO WITHDRAW THE SUIT

Smt. Gowramma vs Nanjappa And Ors. AIR 2002 Kant 76 The procedure to be adopted by Courts in a partition suit, when a plaintiff wants to withdraw the suit, or when plaintiff wants the suit to be dismissed as settled out of Court with some defendants, can be summarised thus :
(i) When a plaintiff wants a partition suit to be dismissed or withdrawn as settled out of Court, the Court should require notice of such application or memo to all other parties (not only all defendants, but co-plaintiffs if any) and hear the parties.
(ii) If all parties are agreeable for the dismissal or withdrawal, the Court may grant the request.
(iii) If any defendant has already sought partition and separate possession by paying Court Fee and opposes the dismissal/ withdrawal, it shall permit such defendant to transpose himself/herself as plaintiff and continue the suit, irrespective of whether he makes an application for transposition or not.
(iv) Even if no defendant has sought the relief of partition and separate possession, till then, the Court may in appropriate cases permit any defendant who files an application in that behalf, to get himself transposed as plaintiff and claim partition and separate possession by paying necessary Court Fee and continue the suit. Refusal to grant such permission should be for valid reasons to be assigned by the Court.

--
Special Thanks to:
Mr Sridhara Babu

---
Haider Ajaz (Advocate)

Supreme Court on its ‘power to review’ in Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors

In “Union of India vs. Sandur Manganese & Iron Ores Ltd. & Ors”, Review Petition (C) No. 739 of 2012, in Civil Appeal No. 7944 of 2010, (decided on 23.04.2013) the Hon’ble Supreme Court delved upon its power or review under Article 137 of Constitution of India, Part VIII Order XL of the Supreme Court Rules, 1966, and Order XLVII, Rule 1(1) of the Code of Civil Procedure, 1908.

The Hon’ble court after going through the aforesaid provisions, observed as under:

“The following grounds of review are maintainable as stipulated by the statute:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii)  Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason” [Para 12]

The words “any other sufficient reason” has been interpreted in Chhajju Ram vs. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanasius Ors., (1955) 1 SCR 520, to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. [Para 13]

The Court further observed that:

(i) In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment. [Para 24]

(ii) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. [Para 23]

(iii) The power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. [Para 22]

The Court also quoted following case law:

Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715, which held as under:

“9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

--

Supplement from: 

lawbeed.com

--

Haider Ajaz

(Advocate)

Use of Stamp Part even after six months

Thiruvengada Pillai vs. Navaneethammal and Anr., 
the stamp papers do not have any expiry period. Relevant extract from SC judgement is reproduced herein below:

The Indian Stamp Act, 1899, nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in Section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months. Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.


SUPREME COURT OF INDIA
Thiruvengada Pillai Vs. Navaneethammal & Anr. [2008] 19 February 2008

ORDER R. V. Raveendran & P.Sathasivam R. V. Raveendran, J.

This appeal by special leave is by the plaintiff in a suit for specific performance – OS No.290/1980 on the file of District Munsiff, Tindivanam. Pleadings

2. In the plaint, the plaintiff (appellant) alleged that the first defendant (Adilakshmi) agreed to sell the suit schedule property to him under an agreement of sale dated 5.1.1980 for a consideration of Rs.3,000/-, and received Rs.2,000/- as advance. She agreed to execute a sale deed by receiving the balance consideration of Rs.1,000/- within three months.

Possession of the suit property was delivered to him, under the said agreement. He issued a notice dated 14.2.1980 calling upon the first defendant to receive the balance price and execute the sale deed. The first defendant sent a reply denying the agreement. To avoid performing the agreement of sale, the first defendant executed a nominal sale deed in regard to the suit property in favour of the second defendant (first respondent herein), who was her close relative. The said sale was neither valid nor binding on him. On the said averments, he sought specific performance of the agreement of sale, against the defendant, alleging that he was ready and willing to perform his part of the contract.

3. The defendants denied the allegation that the first defendant had executed an agreement of sale dated 5.1.1980 in favour of the plaintiff or that she had delivered possession of the suit property to him. They contended that plaintiff had concocted and forged the document with the help of his henchmen to defraud the defendants. They claimed that the first defendant had executed a valid sale deed dated 11.2.1980 in favour of the second defendant and had delivered possession of the suit property to her; and that the second defendant had put up a hut in the schedule property and was actually residing therein. The second defendant raised an additional contention that she was a bona fide purchaser for value and therefore, the sale in her favour was valid.

4. During the pendency of the suit first defendant died, and the third defendant (second respondent herein) was impleaded as her legal representative, who adopted the written statement of the second defendant.

Issues and the Judgment

5. On the said pleadings, three issues were framed by the trial court :

(i) whether the agreement put forth by the plaintiff was true or concocted ?

(ii) whether the second defendant had purchased the suit property for valid consideration ? and

(iii) whether the plaintiff was entitled to the relief of specific performance ?

The plaintiff examined himself as PW-1 and the scribe of the agreement (Ramaswami Pillai) as PW-2 and an attesting witness to the sale agreement (Venkatesha Pillai) as PW-3. The agreement of sale was exhibited as Ex. A-1. The notice and reply were marked as Ex. A2 and A4. The second defendant, (purchaser of the site), gave evidence as DW-1 and the third defendant, who was also a witness to the sale deed dated 11.2.1980, was examined as DW-2. The sale deed dated 11.2.1980 executed by first defendant in favour of second defendant was marked as Ex.B2 and previous title deed was exhibited as Ex. B4. The plaintiff and his witnesses gave evidence that the sale agreement was duly executed by first defendant in favour of plaintiff. The defendants gave evidence about the sale in favour of second defendant and denied execution of any agreement of sale in favour of plaintiff.

6. The trial court after appreciating the evidence, dismissed the suit by judgment and decree dated 28.2.1984. It held that the agreement of sale put forth by plaintiff was false and must have been created after the sale on 11.2.1980 in favour of second defendant, by using some old stamp papers in his possession. The said finding was based on the following facts and circumstances :

(a) The sale agreement (A-1) was not executed on currently purchased stamp paper, but was written on two stamp papers, one purchased on 25.8.1973 in the name of Thiruvengadam and another purchased on 7.8.1978 in the name of Thiruvengadam Pillai.

(b) The two attestors to the agreement were close relatives of plaintiff. One of them was Kannan, brother of the plaintiff and he was not examined. The other was Venkatesa Pillai, uncle of plaintiff examined as PW3. The scribe (PW-2) was a caste-man of plaintiff. Their evidence was not trustworthy.

(c) Though the agreement of sale recited that the possession of the suit property was delivered to plaintiff, no such possession was delivered. On the other hand, the second defendant was put in possession on execution of the sale deed and she put up a thatched hut in the schedule property and was in actual physical possession. This falsified the agreement.

(d) If really there was an agreement of sale, in the normal course, the plaintiff would have obtained the title deeds from the first defendant. But the earlier title deeds were not delivered to him. On the other hand, they were delivered to the second defendant who produced them as Ex.B3 and Ex.B4.

(e) In spite of defendants denying the agreement (Ex.A1), the plaintiff failed to discharge his onus to prove that execution of the agreement as he did not seek reference to a fingerprint expert to establish that the thumb impression on the agreement was that of the first defendant.

The first & second appeals

6. Feeling aggrieved, the plaintiff filed an appeal before the Sub-Court, Tindivanam. The first appellate court allowed the plaintiff’s appeal by judgment dated 12.1.1987, held that the agreement of sale was proved and decreed the suit granting specific performance. The following reasons were given by the first appellant court in support of its finding :

(a) The evidence of PW1 (plaintiff), the scribe (PW2) and the attestor (PW3) proved the due execution of the agreement by the first defendant. As the scribe (PW2) was not related to plaintiff and as PW3 was not a close relative of plaintiff, their evidence could not have been rejected.

(b) The burden of proving that the agreement of sale was concocted and forged was on the defendants and they ought to have taken steps to have the document examined by a Finger Print expert, to establish that the disputed thumb mark in the agreement of sale (Ex.A1), was different from the admitted thumb mark of the first defendant in the sale deed (Ex.B2). They failed to do so.

(c) There appeared to be no marked difference between the finger impression in the agreement of sale (Ex.A1) and the finger impression in the sale deed in favour of the second defendant (Ex.B2), on a perusal of the said two documents. Therefore, it could be inferred that first defendant had executed the agreement.

(d) Execution of the agreement of sale on two stamp papers purchased on different dates, did not invalidate the agreement.

8. Being aggrieved, the second defendant filed a second appeal. The High Court allowed the second appeal and dismissed the suit, by judgment dated 17.2.1999. The High Court while restoring the decision of the trial court held that the agreement of sale was not genuine for the following reasons:

(i) The first appellate court had placed the onus wrongly on the defendants to prove the negative. As the first defendant denied execution of the agreement, the burden of establishing the execution of document, was on the plaintiff. The plaintiff had failed to establish by acceptable evidence that Ex. A-1 was a true and valid agreement of sale. The evidence, examined as a whole, threw considerable doubt as to whether it was truly and validly executed.

(ii) A perusal of the agreement (Ex.A1) showed that the thumb impression was very pale and not clear. The first appellate court could not, by a casual comparison of the disputed thumb impression in the agreement with the admitted thumb impression in the sale deed, record a finding that there were no marked differences in the thumb impressions in the two documents (Ex.A1 and Ex.B2). In the absence of an expert’s opinion that the thumb impression on the agreement of the sale was that of the first defendant, the first appellate court ought not to have concluded that the agreement of sale was executed by the first defendant.

(iii) In the normal course, an agreement would be executed on stamp papers purchased immediately prior to the execution of the agreement. The fact that the agreement was written on two stamp papers bearing the dates 25.8.1973 and 7.8.1978 purchased in two different names showed that it was not genuine, but was anti-dated and forged.

(iv) The attesting witnesses to the agreement of sale were close relatives of plaintiff. Their evidence was not trustworthy.

Points for consideration

8. The said judgment of the High Court is challenged in this appeal by special leave. The appellant contended that having regard to the provisions of Evidence Act, 1872, there was nothing improper in the first appellate court comparing the disputed thumb impression in Ex. A-1 with the admitted thumb impression of first defendant in Ex. B-2; and the finding of the first appellate court on such comparison, that there were no marked differences between the two thumb impressions, being a finding of fact, was not open to interference in second appeal. It was next contended that the execution of the agreement of sale was duly proved by the evidence of plaintiff (PW1), the scribe (PW-2) and one of the attesting witnesses (PW3). It was pointed out there was no evidence to rebut the evidence of PW1, PW2 and PW3 regarding due execution as first defendant died without giving evidence, and as the defendants did not seek reference to a finger print expert to prove that the thumb impression on the agreement of sale was not that of first defendant. It was submitted that an agreement cannot be doubted or invalidated merely on account of the fact that the two stamp papers used for the agreement were purchased on different dates. The Appellant therefore submitted that the sale agreement was duly proved.

9. On the contentions urged, the following questions arise for consideration:

(i) Whether the agreement of sale executed on two stamp papers purchased on different dates and more than six months prior to date of execution is not valid?

(ii) Whether the first appellate court was justified in comparing the disputed thumb impression with the admitted thumb impression and recording a finding about the authenticity of the thumb impression, without the benefit of any opinion of an expert?

(iii) Whether the High Court erred in reversing the judgment of the first appellate court in second appeal? Re : Question (i)

11. The Trial Court and the High Court have doubted the genuineness of the agreement dated 5.1.1980 because it was written on two stamp papers purchased on 25.8.1973 and 7.8.1978. The learned counsel for first respondent submitted that apart from raising a doubt about the authenticity of the document, the use of such old stamp papers invalidated the agreement itself for two reasons. Firstly, it was illegal to use stamp papers purchased on different dates for execution of a document. Secondly, as the stamp papers used in the agreement of sale were more than six months old, they were not valid stamp papers and consequently, the agreement prepared on such ‘expired’ papers was also not valid. We will deal with the second contention first. The Indian Stamp Act, 1899 nowhere prescribes any expiry date for use of a stamp paper. Section 54 merely provides that a person possessing a stamp paper for which he has no immediate use (which is not spoiled or rendered unfit or useless), can seek refund of the value thereof by surrendering such stamp paper to the Collector provided it was purchased within the period of six months next preceding the date on which it was so surrendered. The stipulation of the period of six months prescribed in section 54 is only for the purpose of seeking refund of the value of the unused stamp paper, and not for use of the stamp paper. Section 54 does not require the person who has purchased a stamp paper, to use it within six months.

Therefore, there is no impediment for a stamp paper purchased more than six months prior to the proposed date of execution, being used for a document.

12. The Stamp Rules in many States provide that when a person wants to purchase stamp papers of a specified value and a single stamp paper of such value is not available, the stamp vendor can supply appropriate number of stamp papers required to make up the specified value; and that when more than one stamp paper is issued in regard to a single transaction, the stamp vendor is required to give consecutive numbers. In some States, the rules further require an endorsement by the stamp vendor on the stamp paper certifying that a single sheet of required value was not available and therefore more than one sheet (specifying the number of sheets) have been issued to make up the requisite stamp value. But the Indian Stamp Rules, 1925 applicable to Tamil Nadu, do not contain any provision that the stamp papers of required value should be purchased together from the same vendor with consecutive serial numbers. The Rules merely provide that where two or more sheets of paper on which stamps are engraved or embossed are used to make up the amount of duty chargeable in respect of any instrument, a portion of such instrument shall be written on each sheet so used. No other Rule was brought to our notice which required use of consecutively numbered stamp papers in the State of Tamil Nadu. The Stamp Act is a fiscal enactment intended to secure revenue for the State. In the absence of any Rule requiring consecutively numbered stamp papers purchased on the same day, being used for an instrument which is not intended to be registered, a document cannot be termed as invalid merely because it is written on two stamp papers purchased by the same person on different dates. Even assuming that use of such stamp papers is an irregularity, the court can only deem the document to be not properly stamped, but cannot, only on that ground, hold the document to be invalid. Even if an agreement is not executed on requisite stamp paper, it is admissible in evidence on payment of duty and penalty under section 35 or 37 of the Indian Stamp Act, 1899. If an agreement executed on a plain paper could be admitted in evidence by paying duty and penalty, there is no reason why an agreement executed on two stamp papers, even assuming that they were defective, cannot be accepted on payment of duty and penalty. But admissibility of a document into evidence and proof of genuineness of such document are different issues.

13. If a person wants to create or a back-dated agreement, the first hurdle he faces is the non-availability of stamp paper of such old date. Therefore tampering of the date of issue and seal affixed by the stamp vendor, as also the entries made by the stamp vendor, are quite common in a forged document. When the agreement is dated 5.1.1980, and the stamp papers used are purchased in the years 1973 and 1978, one of the possible inferences is that the plaintiff not being able to secure an anti-dated stamp paper for creating the agreement (bearing a date prior to the date of sale in favour of second defendant), made use of some old stamp papers that were available with him, to fabricate the document. The fact that very old stamp papers of different dates have been used, may certainly be a circumstance that can be used as a piece of evidence to cast doubt on the authenticity of the agreement. But that cannot be a clinching evidence. There is also a possibility that a lay man unfamiliar with legal provisions relating to stamps, may bona fide think that he could use the old unused stamp papers lying with him for preparation of the document and accordingly use the old stamp papers.

Re : Point No.(ii)

14. Section 45 of the Indian Evidence Act, 1872 relates to ‘opinion of experts’. It provides inter alia that when the court has to form an opinion as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in questions as to identity or handwriting or finger impressions are relevant facts. Section 73 provides that in order to ascertain whether a finger impression is that of the person by whom it purports to have been made, any finger impression admitted to have been made by that person, may be compared with the one which is to be proved.

These provisions have been the subject matter of several decisions of this Court.

14.1) In The State (Delhi Administration) v. Pali Ram [1979 (2) SCC 158] this Court held that a court does not exceed its power under section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But this Court cautioned:

“Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert.”

The caution was reiterated in O. Bharathan vs. K. Sudhakaran 1996 (2) SCC 704. Again in Ajit Savant Majagvai v. State of Karnataka [1997 (7) SCC 110] referring to section 73 of the Evidence Act, this Court held :

“The section does not specify by whom the comparison shall be made.

However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the dispute signature with the admitted signature as this power is clearly available under Section 73 of the Act.”

14.2) In Murari Lal v. State of Madhya Pradesh – 1980 (1) SCC 704, this Court indicated the circumstances in which the Court may itself compare disputed and admitted writings, thus :

“The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusions. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court’s own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence.”

The decision in Murari Lal (supra) was followed in Lalit Popli v. Canara Bank & Ors. [2003 (3) SCC 583].

15. While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/ signature/finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression.

The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the Court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of finger prints, the court may record a finding on comparison, even in the absence of an expert’s opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal. The decision in Muralilal (supra) and Lalit Popli (supra) should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal.

16. In this case the first defendant had denied having put her finger impression on Ex. A-1. She died during the pendency of the suit before her turn came for giving evidence. The High Court having examined the document has clearly recorded the finding that the thumb mark in Ex. A-1 was pale (that is light) and not clear. The document though dated 1980, was executed on two stamp papers which were purchased in 1973 and 1978.

Contrary to the recital in the agreement that possession had been delivered to the plaintiff, the possession was not in fact delivered to plaintiff, but continued with the first defendant and she delivered the possession to the second defendant. The title deeds were not delivered to plaintiff. The attesting witnesses were close relatives of plaintiff and one of them was not examined. The scribe’s evidence was unsatisfactory. It was also difficult to believe that the first defendant, an illiterate old woman from a village, would enter into an agreement of sale on 5.1.1980 with plaintiff, and even when he is ready to complete the sale, sell the property to someone else hardly a month thereafter, on 11.2.1980. In this background, the finding by the first appellant court, recorded without the benefit of any expert opinion, merely on a casual perusal, that there appeared to be no marked differences between the two thumb impressions, and therefore Ex. A-1 (sale agreement) must have been executed by first defendant, was unsound. The High Court was justified in interfering with the finding of the first appellate court that the Ex.A1 was executed by first defendant.

Re : Point No.(iii)

17. The trial court had analyzed the evidence properly and had dismissed the suit by giving cogent reasons. The first appellate court reversed it by wrongly placing onus on the defendants. Its observation that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the defendants to establish that the document was forged or concocted, is not sound proposition. The first appellate court proceeded on the basis that it is for the party who asserts something to prove that thing; and as the defendants alleged that the agreement was forged, it was for them to prove it. But the first appellate court lost sight of the fact that the party who propounds the document will have to prove it. In this case plaintiffs came to court alleging that the first defendant had executed an agreement of sale in favour. The first defendant having denied it, the burden was on the plaintiff to prove that the first defendant had executed the agreement and not on the first defendant to prove the negative. The issues also placed the burden on the plaintiff to prove the document to be true. No doubt, the plaintiff attempted to discharge his burden by examining himself as also scribe and one of the attesting witnesses. But the various circumstances enumerated by the trial court and High Court referred to earlier, when taken together, rightly create a doubt about the genuineness of the agreement and dislodge the effect of the evidence of PW 1 to 3. We are therefore of the view that the decision of the High Court, reversing the decision of the first appellate court, does not call for interference.

18. We, therefore, find no merit in this appeal and the same is accordingly dismissed. Parties to bear their respective costs.


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Haider Ajaz 
(Advocate)