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TMI Blog2024 (9) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri Shailendra Rathi, nowhere he has suggested that these payments relate to any transactions relating to the assessee on or behalf of the assessee or received on or behalf of the assessee. There is a complete mismatch of time period between What sApp message and the date mentioned in the statement. When assessee was confronted with the statement of Shri Shailendra Rathi, he has categorically stated that he is neither aware of such transaction nor does he have any business relation with Shri Ashok Lunia. No enquiry whatsoever has been conducted by the ld. AO as to what was the connection between assessee and Shri Ahok Lunia and what the transaction was for and what is the business relationship with Shri Shailendra Rathi and how this transaction pertains to assessee. During the search at Assessee s place no corroborative evidence or material has been found. Nowhere Shri Shailendra Rathi has implicated the assessee that he has paid or received cash of Rs. 80,00,000/- on behalf of the assessee. Addition has been made and secondary evidence of electronic record being What sApp conversation from a mobile and statement of a person and from the statement nowhere the name of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scrutiny and notice u/s. 143(2) was issued on 29/06/2022. Ld. AO noted that in the course of search proceedings at the residence of Shri Shailendra Rathi at Flat no. 203, Building No B-3, Kumar Parisar, Near Mahesh Vidyalaya, New DP Road, Kothrud Pune 411038, certain incriminating evidences were found from WhatsApp chat in the mobile phone of Shri Shailendra Rathi. These chats were between Shri Shailendra Rathi and Shri Nilesh Toshniwal wherein Shri Rathi has texted to Shri Toshniwal @ received 80 . Shri Shailendra Rathi in his statement recorded on oath dated 24.09.2021 u/s. 132(4) of the Act, explained the said message in the reply of Q. No. 32 of his statement and stated that they have received Rs. 80 lakh in cash through Shri Ashok Luniya, the contact given by Shri Nilesh Toshiniwal. The Statement of Shri Shailendra Rathi recorded on oath u/s. 132 (4) dated 26.09.2021 was confronted to the assessee wherein the assessee has stated that he is not aware of any such transaction nor does he have any business relation with Shri Ashok Luniya. Ld. AO noted that Shri Nilesh Toshniwal and Shri Shailendra Rathi were working in tandem and were exchanging documents and information with res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in section 2920 and 132(4A) were not available against the appellant as to the correctness of the contents of the seized data found from the possession of a third party The appellant thus pleaded that documents found from the possession of a third party could not be relied upon to make additions in the case of the appellant. According to the appellant Sh Shailendra Rathi was a consultant to the Rucha Group and not connected to the assessee Similarly Sh. Nilesh Toshniwal was an independent professional person who was a practicing advocate. According to the appellant, while Sh. Toshniwal at times rendered professional advice to the appellant in legal matters in connection with the real estate business activities, he was not assisting in financial matters. According to the appellant, there was no material to suggest that the appellant has entered into the alleged transaction While Sh Nilesh Toshniwal denied the impugned transaction of Rs. 80 lakh with Sh. Ashok Luniya, Sh. Shailendra Rathi had nowhere stated that the amount of Rs. 80 lakh was received by him at the instance of the appellant or on behalf of the appellant. The appellant stated that even if any transaction of Rs. 80 lak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ronted with the statement of Shri Rathi, wherein the assessee stated that he was not aware of such a transaction and that he did not have any business relation with Shri Ashok Luniya. 6.8 It is also seen that during the course of the assessment proceedings also, the assessee was asked to explain the transaction. In response, the assessee reiterated that while Shri Ashok Luniya was a friend of the assessee but he had no business relationship with him. Also, he was not aware about any such transaction and these transactions were not related to him. The explanation of the assessee was not found acceptable by the AO as Shri Shailendra Rathi in his statement recorded on oath had explained that on 19.07.2020, Rucha Group had received Rs. 80 lakhs in cash through Shri Ashok Luniya. The AO made the addition by observing that Shri Nilesh Toshniwal and Shri Shailendra Rathi were communicating with each other and were exchanging documents pertaining to various cash transactions and that Shri Toshniwal was found to be working on the directions of the assessee Shri Jayant Shah. The payment received by the Rucha Group from the friend of Shri Jayant Shah was considered by the AO as payment made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Similarly, raising presumption itself does not amount to proof. Presumption, however strong, cannot take the place of evidence as held in the case of Pooja Bhatt 66 TTJ (Mum) 817 and in the case of D.M Kamani HUF 65 TTJ (Pat) 504 Interestingly, even the WhatsApp conversation or the statement of Sh. Shailendra Rathi does not make any reference to the assessee but refers to one Sh. Ashok Luniya. It is also not the case that Sh. Ashok Luniya ever implicated the assessee Sh. Jayant Hiralal Shah in respect of the impugned transaction. While the assessee Sh Jayant Hiralal Shah was also covered under search, it is not the case either that any corroborating evidence was found in his case linking him to the material found from Sh. Shailendra Rathi. Thus, in the absence of any independent evidence linking the assessee with the material found from a third party or a third party statement, the addition made by the AO on the basis of such third party statement or material found from the third party cannot be sustained. The addition of Rs. 80,00,000/- made by the AO in the case of the assessee is accordingly deleted and the ground of appeal is allowed. 6. We have heard both the parties at leng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Shri Prashant Nilawar on 17.09.2019 which pertains to some conflict in Ajanta Cooperative Housing Society Ltd with Allwell Prop Pvt Ltd, This conflict was associated with Shri Jayant Shah s interest. Shri Nilawar asked me to see if anything could be done through our end. Therefore, I asked Nilesh Toshniwal ji to provide me details related to same. 5 On 19.07.2020, We had received Rs 80 lakh in cash through Shri Ashok Luniya, the contact given by Shri Nilesh Toshniwal ji in Dubai on 14.09.2019. 6 On 08.10.2020, I had received Rs. 1,00,00,000 in cash through Shri Nilesh Toshniwal ji. 7 One payment was to be made by Shri Nilesh Toshniwal ji. In this regard, I had shared him the detail of the angadiya Shri Vinod (9370511116) to coordinate with him for the payment of Rs 1,00,00,000 in cash on 02.03.2020. Shri Nilesh told me to instruct Shri Vinod to call him on what s App only. 8 On 12.03.2021, I had sent Shri Nilesh Toshniwal the bank account detail of M/s Kalyan Toll Infrastructure Ltd wrongly. 9 On 17.03.2021, I had again sent him the bank account detail of M/s Guna Infrastructure Limited for reversal of loan from M/s Guna Infrastructure Limited. The amount of Rs 10 crore was ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id or received cash of Rs. 80,00,000/- on behalf of the assessee. 9. Here, the addition has been made and secondary evidence of electronic record being What sApp conversation from a mobile and statement of a person and from the statement nowhere the name of the assessee figures. If the message and the information has not been retrieved or recovered from the assessee, there cannot be any presumption against the assessee. The onus was on the persons who have given the statement or from whose mobile What sApp chat had been found. Nowhere it has been brought on record whether Shri Nilesh Toshniwal has stated anything about the assessee or any enquiry was done from him. If the ld. AO is trying to use the What sApp chat relating to some third person against the assessee, then its mandatory requirement u/s 65 B of the Evidence Act to comply with the procedures given therein. This has been categorically held by the Hon ble Supreme Court in the case of Arjun Panditrao Khotkar vs. Kailah Kushanrao Gorantyal vide judgment and order dated 14/07/2020, wherein three Judges Bench of the Supreme Court have held that electronic evidence has to be certified u/s. 65B(4). There is no such certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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