What is evidentiary value of an affidavit?
AMIT BAJAJ ADVOCATE
(Querist) 19 November 2010
This query is : Resolved
One of my client's(assessee's) friend has furnished an affidavit during the income tax proceedings of assessee in favour of assessee and also given the relevant proofs supporting and corroborating his affidavit.
But he doesnot want to get present personaly before the assessing officer. Assesing Officer wants the personal presence of the deponent that too to be enforced by the assessee.
I have given a written reply to the assessing officer to issue summons to the deponent for enforcing the deponent's presence u/s 131 of IT Act since assessee doesnot have any control over the deponent to enforce his personal presence of his own.
If A.O doesnot issue summons to the deponent can he then without any reason disbelieve the affidavit given by the deponent?
what is the evidentiary value of an affidavit which is duly supported and coroborated by further evidence. can anybody give relevant provisions of evidence act in this regard?
Thanks.
Raj Kumar Makkad
(Expert) 19 November 2010
It has full evidentiary value and assessing officer is bound to issued summon to the friend of your client to establish his identity and contents of the affidavit but even if he refuses to do so, your client has right to approach appellate authorities on this sole ground.
A V Vishal
(Expert) 19 November 2010
An Affidavit per se does not become evidence in the suits, but it can become evidence only by consent of the party or where it is specially authorized by particular provision of law. Affidavits are not even included in the definition of ‘evidence’ as provided in Section 3 of The Evidence Act, 1872. Consequently, Affidavits cannot be used as evidence even under any of the provisions of the Evidence Act.
In the case of Abdul Rasheed vs. Calcutta Municipal Corporation AIR 1990 Cal 37, it was observed that the text of a document was in English. There is no indication in the body of document that its text was explained to the deponent who had signed in Hindi. The Court held that in such circumstances the Affidavit cannot be relied upon.
In the ordinary course, an Affidavit can not be used as evidence to prove a particular fact. It can only be used as an admission of a party under 18 to 21 of the Evidence Act and can be used against the party making such admission.
It emerges from the resume of judgements concerning the Affidavits that except in certain circumstances referred to in the decisions, Courts have been by and large reluctant to place absolute reliance on
Affidavits as evidence to tilt the scale of their decision in favour of one party or another.
The Income Taxt Act and Rules made thereunder. The Income Tax Appellate Tribunal Rules, Settlement Commission rules etc. duly recognise the importance
and relevance of sworn statements.
In terms of Section 253 (7) read with Rule 35A of Appellate Tribunal Rules,1963, the Assessee is required to file the petition for stay of demand raised by the I.T. authorities. The Income Tax Appellate Tribunal requires that the stay petition must accompany an Affidavit verifying the contents of the stay petition.
Also, as per Rule 10 of the Income Tax Appellate Tribunal Rules,1963, “Where a fact which can not be borne out by, or is contrary to the record is alleged, it shall be stated clearly and concisely and supported by duly sworn Affidavit.”At yet another place namely under Section 226 (3)(vi), the Assessee is required to file statement on oath for registering objection in response to notice for
recovery proceedings of Income Tax demands raised.
The application setting out circumstances for delay in filing appeal before the appellate authorities and seeking condonation thereof etc. should as far as
possible, to be supported by duly verified Affidavit.
Likewise, the retraction of statements made earlier before Statutory Authorities during the course of search/survey proceedings, assessment proceedings
etc, if any, should necessarily be in the form of Affidavit.
The Gujrat High Court in the case of Glass Line Equipments Co. Ltd. vs. CIT reported in 253 ITR 454 (2001) held that while dealing with Affidavits, the revenue can not choose to accept only one part of the statement which is favour of revenue and against the Assessee while ignore the rest of the portion wherein specific averments were made on facts. It is a well settled canon of interpretation that a document has to be read as a whole: it is not permissible to accept a part and ignore the rest of the document.
The Supreme Court in the case of Mehta Parikh and Co. vs.CIT [1956] 30 ITR181 laid down that when none of the authorities considered it necessary to
cross-examine the deponent with reference to the statement made in the Affidavit, it was not open to the Revenue under these circumstances to challenge the correctness of the statement made by the deponent in the Affidavit. In other words, consequently, the Assessee was entitled to assume that the authorities were satisfied with the Affidavit as sufficient proof on this point.
The Allahabad High Court in the case of L. Sohanlal Gupta vs. CIT [1958] 33 ITR 786 was confronted with question of rejection of Affidavits. The Hon’ble High Court held that rejection of Affidavit is not justified unless Assessee has either been cross-examined or called upon to produce documentary evidence in support of the Affidavit sworn by him.
adv. rajeev ( rajoo )
(Expert) 20 November 2010
Affidavit is a sworn statement it can be believed by the assessing officer. If he the person failed to appear before the assessing officer, he can consider that affidavit. It has got evidentary value. There will not be any cross examination procedure. So affidavit is sufficient.
s.subramanian
(Expert) 20 November 2010
Mere production of the affidavit will not suffice. Even though evidence on affidavits is permitted and recognised in Indian Laws and Courts,the deponent ha to be personally and physically present to present such evidence on affidavit to the quasi judicial authorities. this is mandatory because,the quasi judicial authority has to administer oath to the witness giving evidence on affidavit before receiving the same as evidence under the Provisions of the Indian Evidence Act and Indian Oaths Act. if this is not done the affidavit will merely remain a piece of paper and cannot be treated as legal evidence for any purpose.
Kirti Kar Tripathi
(Expert) 20 November 2010
Mr. Makkad is correct. the officer concerned is bound to issue summon. in case, he does not issue the summon, he is bound to accept the contents of the affidavit. he can not disbelieve the same.
AMIT BAJAJ ADVOCATE
(Querist) 20 November 2010
Thanks all for their valuable advice. Dear Vishal ji I find Mehta Parikh and Co. vs.CIT [1956] 30 ITR181 as a relevant judgement in my case, thanks for providing it. Can you plz provide the full text of this judgement, I will be very thankfull to you.
Chanchal Nag Chowdhury
(Expert) 20 November 2010
How were the documents attached to the affidavit proved? The ITO may demand the presence of the deponent.If he refuses to exercise the power of calling the deponent, file an appeal.
A V Vishal
(Expert) 20 November 2010
I am unable to upload the file here Amit, I am mailing it to you.
A V Vishal
(Expert) 20 November 2010
Please check your mail now and confirm the same.
Guest
(Expert) 27 October 2014
Sorry, reply being meant for some other query has been deleted, as posted mistakenly.
Guest
(Expert) 27 October 2014
Evidentiary value of an affidavit of a person in favour of someone else is subject to confirmation of proof and verification by the AO from the deponant in person, if he desires to have any supplementary information from the deponant about truthfullness of the evidence. Otherwise, in the absence of the deponant, the AO is not bound to accept the evidence and may or may not reject that evidence at his discretion. So, Satisfaction of the AO is necessary.
So, better convince the AO to summon the deponant.
