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TMI Blog2025 (1) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, that all the more required the certificate u/s 65B of the Indian Evidence Act. If this piece of document is considered, the same has no signatures of the assessee or even Shri Anil Narang. There is no separate piece of evidence establishing the handwriting to be of Shri Anil Narang or the assessee. As we go through the contents there are no corroborating facts to establish that any on money was paid separately. The ld. AO himself mentions that when Shri Anil Narang was confronted with this document and his statement u/s 131(1A) of the Act was recorded, Shri Anil Narang had deposed that he is unable to understand the document. As with regard to the transaction also he had shown his ignorance. There is no independent inquiry also by the AO of the fact that the value of the property was otherwise thrice at Rs. 1,67,00,000/- than the amount paid by the assessee of Rs. 67,50,000/- by way of banking transactions. Thus being a case of no evidence, the addition is not sustainable under law. Assessee appeal allowed. - Shri S. Rifaur Rahman, Accountant Member And Shri Anubhav Sharma, Judicial Member For the Assessee : Shri Gaurav Jain, Advocate And Shri Vijay Singh, CA For the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), sustaining the addition of Rs. 1,05,50,000/-, the appeal is filed before this Tribunal through various grounds of appeal. 3. Ld. Counsel of assessee has primarily submitted that alleged seized material clearly shows that it is not legible. A photocopy of the same was confronted to the Appellant during the course of post search proceedings and her statement was recorded under section 131(1A) on 02.05.2018 i.e., after 4 months from the date of the search. In Q. No. 8 to her statement, the relevant tax authority explained the content of the said photo to the Appellant and asked for her confirmation. While answering to the said question the Appellant denied commenting upon the same, as it was recovered/seized from the mobile phone of Mr. Anil Narang, who would have been in a better position to explain the same. The relevant extract of the statement of Appellant recorded under section 131(1A): Q.8 I am showing you a print out of extraction taken from mobile phone of Sh. Anil Narang as Exhibit-I wherein it has been mentioned that the total cost of property B-376, B-Block, 2nd Floor, Sushant Lok-1, Gurugram, Haryana-122001 is Rs. 1.67 crore out of which Rs. 1.23 crore has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable in law. In this context it was pointed out that as per the typed copy of the seized material, relied by AO, the payment of Rs. 1,00,000/- (forming part of Rs. 7.5 Lakhs) was made allegedly vide some cheque, while the actual payment was made vide RTGS. A perusal of typed copy of the seized material, shows that on multiple occasions * are found mentioned between the words which shows that the seized Receipt could not be deciphered completely and inherits assumption on the part of the Ld. AO. 6.1 Ld. Counsel pointed out that at the bottom of the typed copy of seized material, it is mentioned that the recipient has 'taken' Rs. 43,50,000/- whereas in the same breath the document regards the said figure as 'payable'. Therefore, there is a contradiction on the amount of Rs. 43,50,000/- as whether it is payable or already received/taken. The seized receipt is neither dated nor signed by the Appellant or the opposite party. No date was mentioned against any of the payment entries, which is again not possible for a valid receipt to be issued by one party to the other, more so, when the payments were made on different dates. The seized receipt also refers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. AO is placed on record according to which the incriminating document found and seized was from the mobile of Mr. Anil Narang during the search operations and mentioned in the assessment order as AnnexureA-1 (Samsung Galaxy A9 Pro) for initiating proceedings u/s 153C r.w.s. 153A of the Act and the ld. AO did not have any certificate u/s 65B of the Indian Evidence Act, 1972 on record and the ld. AO mentions that a request has been made to ADIT (Investigations), Unit-2(1), New Delhi to provide a copy of certificate u/s 65B of the Indian Evidence Act, 1972 and the copy of the same will be forwarded when it is received. 10. On aforesaid facts of absence of certificate u/s 65B of the Indian Evidence Act 1972, we find that there is relevant provision in Information Technology Act, 2000, clause (t) of sub-section (1) of section 2, which defiend an electronic record to means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro file. This definition of electronic record is wide enough to cover person in possession of computer, storage device, server, mobile phone, ipod or any such device. Then Section 132(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on over that period by the person having lawful control over the use of the computer; b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. 13. Hon'ble Supreme Court in the case of Arju Arjun Pandit Rao Khotkar v. Kailash Kushanrao Gorantyal, Civil Appeal Nos. 20825- 20826 of 2017 dated 14.07.2020 has held that the non obstante clause in section 65B(1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of section 65B. 14. Thus, as per secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1872 and hence cannot be enforced. Therefore, the Certificate obtained in the case of the assessee cannot be regarded as a legally valid certificate u/s. 65B of the Indian Evidence Act and the same has no recognition in the eyes of law. The information contained in the seized pen drive is could not be considered as admissible evidence as per the provisions of section 65B of Indian Evidence Act. Therefore, we are of the considered view that such inadmissible seized material is not sustainable in the eyes of law. Thus, the assessment order passed in the case of the assessee on 31-3-2022 is not a valid assessment order in the eyes of law and it deserves to be set aside. 16. An identical issue has been considered by Indore Bench in case IT(SS)A No.03 04/Ind/2024 Amrit Homes Versus ACIT-Central II and M/s Asnani Builders Developers Ltd. in ITANo.11 to 14/Ind/2014 and relying Visakhapatnam Bench decision in Polisetty Somasundaram (supra), the Indore Bench has held as follows; 6.6 The Ld. AR has also raised a strong objection against the admissibility of excel sheet as an evidence in view of Section 65B of the Evidence Act which requires that the evidence in the form of electronic record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not required under the facts of the present case. For this, he relied on the following decisions: i) Hon'ble Supreme Court in the case of Tata Consultancy Services Ltd (S) vs. Cyrus Investments Pvt Ltd and Others (S.C), in Civil Appeal No.440-441 of 2020, judgment dated 26.03.2021 ii) Hon'ble Supreme Court in the case of Moni Shankar vs. Union of India and Anr (2010) (3 SCC 484) 11 SCC 233. iii) Hon'ble Telangana High Court in the case of The State of Telangana vs. P Govind Reddy and 10 Others in W.A No.1105 of 2018. 5.1 Further, relying on the decision of Hon'ble Madras High Court in the case of Saravana Selvarathnam Retails (P) Ltd vs. CIT (A) reported in (2024) 160 Taxmann.com 287 (Mad.) dated 23.02.2024, the Ld. DR submitted that, even if the instruction of the CBDT manual are not followed, if the electronic data obtained are supported by corroborative evidence, addition can be made on the basis of such electronic data. He also submitted that, in this case, the addition has been made on account of interest payable on the amount advanced by the assessee with regard to one dealing of the land and the corresponding sale deed is on the record (Page No 1 to 7 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents can be relied upon only if the said data are supported by the corroborative evidences. 7. It is abundantly clear from the decision of the Hon'ble Madras High Court (Supra) that in the absence of such E- certificate,(65 B Certificate) the electronic data must be supported by corroborative evidences. The sale deed on which the Ld. DR is relying as corroborative evidence does not confirm that whether any interest was to be payable or paid to the assessee. Further, there is no reference of paying of on money or cash amount or interest by the assessee in the said sale deed. Hence, under such circumstances, the sale deed cannot be taken as corroborative evidence. Hence, in our considered opinion, the Revenue Authorities has made the addition without obtaining any E- certificate and without any corroborative evidence with regard to the electronic data. Hence, we delete the addition made by the Revenue authorities, thereby allowing the appeal of the assessee. 8. In the result, appeal filed by the assessee is allowed. 18. In the instant case, admittedly there is no certificate under section 65B of the Indian Evidence Act, 1872. Thus, the evidence in the form of a print out tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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