AO cannot question genuineness of unregistered Will if attested by two witnesses

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INCOME TAX APPELLATE TRIBUNAL, DELHI

ITA Nos. 3558 to 3563/Del/2011

Assessment Years : 1996-97 to 2001-02

Rama Yadav Vs. ACIT (OSD)

In our considered view the contention of learned counsel for the assessee has substance inasmuch as Indian law does not prescribe registration of the Will, it should be in writing, attested by two witness; there is no requirement of any registration or notarization thereof. In this case the Will is in writing and duly attested by two witnesses, therefore, no adverse inference can be drawn on the aspect that witness did not advice for registration of the same.

Apropos the issue of flow of signature of late Shri Ram Bharosey Lal Yadav, in our view, the AO is not an handwriting expert, therefore, the observation amounts to a surmise. Besides, late Shri Ram Bharosey Lal Yadav is not disputed to be a freedom fighter and an affluent landlord, he is held to be marginally qualified. In our view, flow of writing as pointed out by AO cannot be held to be determinative to discard the Will, in the absence of any opinion of the handwriting expert.

ADI has examined the witnesses Shri Nawab Singh Yadav, ex-Principal and Shri Suresh Babu Yadav Adv., they have deposed the Will to be genuine, bearing signatures of deceased and about the distribution of assets. This fact has further been confirmed by the sons of the deceased and the servants who are also beneficiaries of the Will. In our view, this written record and statements cannot be ignored without pointing out any contradictions or inconsistencies therein.

The assessee cannot be held responsible for the non-filing of income-tax and wealth-tax returns by the deceased and his daughters after the distribution of the assets of the deceased, consequently, no adverse inference can be drawn on this count. The fact that late Shri Ram Bharosey Lal Yadav constructed a three storeyed village house in 1981 cannot be held as assumption that he must have exhausted all the savings even after a period of 12 years in 1993.

In our considered opinion, on the basis of material existing on record it cannot be held that Will was fake or an after thought. AO’s adverse inference is not based on any cogent evidence but on assumptions and probabilities. In our considered view when the direct evidence is available the issue cannot be decided on assumption without contradicting the statements on record. Consequently the additions in respect of the amount arising out of the Will are deleted.