Income Tax Appellate Tribunal - Cochin
M/S.Hillwood Imports And Exports P. ... vs The Ito(Tds), Calicut on 5 August, 2019
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IN THE INCOME TAX APPELLATE TRIBUNAL
COCHIN BENCH, COCHIN
BEFORE S/SHRI CHANDRA POOJARI, AM & GEORGE GEORGE K., JM
I.T.A. Nos.448 to 453/Coch/2018
Assessment Years : 2009-10 to 2013-14
Hillwood Imports & Exports Pvt. Vs. The Deputy Commissioner of
Ltd., Chungam, Feroke, Income-tax, Central Circle-2,
Kozhikode-673 631. Kozhikode.
[PAN: AAACH 8959A]
(Assessee-Appellant) (Revenue-Respondent)
I.T.A. Nos. 285 to 290/Coch/2018
Assessment Years : 2009-10 to 2013-14
Hillwood Furniture Pvt. Ltd., Vs. The Deputy Commissioner of
Chungam, Feroke, Income-tax, Central Circle,
Kozhikode-673 631. Kozhikode.
[PAN: AABCH 5005Q]
(Assessee-Appellant) (Revenue-Respondent)
I.T.A. Nos.446 and 447/Coch/2018
Assessment Years : 2012-13 & 2013-14
Hillwood Timbers, Vs. The Deputy Commissioner of
Door No. XI/67C, Punarpa, Income-tax, Central Circle,
Makkarparambu, Kozhikode.
Malappuram-676 507.
[PAN: AAGFH 2833N]
(Assessee-Appellant) (Revenue-Respondent)
Assessee by Shri P. Raghunathan, Adv. &
Shri C.B.M. Warrier, FCA
Revenue by Smt. A.S. Bindhu, Sr. DR & Shri
Shantam Bose, CIT(DR)
I.T.A. Nos. 448-453/Coch/2018,
285-290/Coch/2018 &
446 &447/Coch/2018
Date of hearing 23/07/2019
Date of pronouncement 05/08/2019
ORDER
Per CHANDRA POOJARI, AM:
These appeals filed by different assessees are directed against the different orders of the CIT(A)-III, Kochi and pertain to the assessment years 2008-09 t0 2013-14.
2. The assessees have raised the following common grounds of appeals except for variance in figures :
1. The order passed by the learned assessing Authority as well as Commissioner of Income Tax (Appeals) to the extent it upholds the assessing authority's findings are both against the law, facts and probabilities of the case.
2. The Assessing Officer has gone wrong in adopting the data in the pen drive for computing the total income of the Appellant for the following reasons:
a) The pen drive is claimed to have been recovered from the residence of one Mr. Shareef in survey u/s 133A of the Act without cross examining Mr. Riyas.
b) The Assessing Officer has gone wrong in accepting the pen drive as a piece of evidence and making substantial additions to the income returned. The pen drive is not having any evidential value as per evidence Act
c) The Commissioner of Income Tax has gone wrong in omitting to consider the Appellants' submission regarding the lack of evidential value of data in the Pen drive.
3. Without prejudice to the submission regarding evidential value of pen drive as above; the Assessing Officer has gone wrong in including stock transfer 2 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 between sister concerns and branches valued Rs. 2,99,77,239/- in the computation of sales turnover.
b) The Assessing Officer has gone wrong in omitting to deduct the cost of additional quantity of timber valued Rs. 8,29,05,394/- required to meet the alleged sale as per pen drive
c) The Assessing Officer has gone wrong in not deducting expenses Rs.6,80,288/-Shown in the pen drive for computing the total income.
4. The assessing Officer ought to have noticed that the seized materials claimed to have been recovered during search are not provided to Appellant for verification, in spite of specific request for the same by Appellant and the assessment based on such material are illegal and void.
5. Assessing Officer erred in adopting both data as per pen drive and books of accounts for computing the income in a mixed manner.
6. The Assessing officer has gone wrong in adopting Gross profit percentage of 30% on sales which is exorbitantly high when compared to average Gross profit ratio of 8% in similar cases.
7. For the above grounds and other grounds which may be raised at the time of hearing, The Appellant submits to cancel the addition to returned income made by the Assessing Officer.
2.1 Coming to the main grounds, the Ld. AR has pressed only Ground Nos. 2(a), 2(b) and 2(c) and has not pressed any other grounds of appeals. Accordingly, we proceed to consider only Ground Nos. 2(a), 2(b) and 2(c) and all other grounds in the main grounds of appeals are dismissed as not pressed.
3. The facts of the case as narrated in ITA No. 448/Coch/2018 are that the assessee is a Private Limited Company in which Shri V. Shareef is the Managing 3 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 Director engaged in the business of trading in imported timber having Head Office at Feroke, Kozhikode with a Branch at Pollachi. A search was conducted on 04.12.2013 at the office of the Company (which is also the administrative office of the group concerns) and the residential premises of Managing Director Shri V. Shareef during the course of which certain documents were seized and statements recorded from the Managing Director, some of the Employees and Customers. After more than seven months of the search, the Officers conducted a survey under Sec. 133A of the Act at the residence of one Sri Riyaz who was originally on the employment of the assessee on 14.07.2014 during the course of which, three pen drives were impounded. The assessment was thereafter completed by placing reliance on the pen drives claimed to have been recovered from Mr. Riyaz. Assessing Officer has included stock transfer to branches and sister concerns valued Rs. 2,99,77,239/- in the sales turnover.
4. Before the CIT(A), the assessee filed a revised working of computation of total income without prejudice to other grounds of Appeal. Income As per Income As per Assessed Income Income Computed original Return filed u/s. 153 A During Appellant Proceedings 47,67,320.00 78,67,320.00 7,31,36,150.00 1,70,55,478.00 CIT(A) observed that on 04.12.2013 a search and seizure operation was carried out at the premises of the appellant company, other group concerns and directors of 4 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 the companies. During the course of search, voluminous documents were found and seized evidencing that the assessee company as well as other group concerns were engaged in systematic suppression of sales and thereby profits and details of these documents seized and contents of these documents have been elaborated by the AO in the assessment order. It was observed that during the post search investigation, the Investigation Wing received information that the books of accounts were also maintained at a different premise, which was under the control of Shri Riyaz, who is an employee of Mr. Shareef, the controller of Hillwood Group. A survey u/s. 133A was carried out on 14.07.2014 at the said premises of Shri Riyaz M. and books of accounts belonging to Hillwood Group was found and impounded. During the course of survey 3 pen drives containing data of Hillwood Group was also found and these were also impounded. The contents of the pen drives were subjected to forensic imaging and a copy of the contents were provided to Shri Shareef and his Authorized Representative also. The vendor of the software used was identified as Shri Jacob A.J. and his statement was also taken. Mr. Jacob stated that the software was a complete accounting package and was sold to Hillwood Group, According to the CIT(A), there is no dispute about the fact that data contained therein in the pen drives found and impounded belonged to the Hillwood Group and the same were also compared to the documents found and seized during the course of search. The CIT(A) observed that since the data found in the pen drives have been supplied to the assessee i.e. Mr. Shareef, it cannot be said that the principle of natural justice have not been adhered to. The AO has compared the 5 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 data from the pen drive to the seized documents and also the books of account maintained by the assessee in regular course of business and nothing adverse can be inferred from the fact that the pen drive was impounded in a survey seven to 8 months after the search was initiated in the Group. Once an information has been received, the officers of the Department are duty bound to conduct inquiries through and according to various provisions available in the Act. Thus, on the basis of fact of this case, the CIT(A) observed as follows:
a) Ground of Appeal No.2 is factually incorrect as the assessment has been completed by the AO on the basis of data and evidences found during the course of search and the data found to be contained in the said Pen Drive.
Ground of Appeal No. 2 is dismissed accordingly.
b) On the basis of discussion above, it is clear that neither the search nor the survey conducted subsequently are bad-in-law, as there has been no legal or procedural infirmity in carrying out the same. There is no dispute that the data contained in the said Pen Drive belonged to the Appellant. Ground of Appeal No. 3 of the appellant is dismissed accordingly.
c) Ground of Appeal No.4 also cannot be allowed as it is proved beyond doubt that the data contained in the Pen Drive belonged to the Appellant and its group concerns and the AO has correctly used such data in computing the income of the appellant. This ground of appeal of the appellant is dismissed.
d) Grounds of Appeal Nos. 5, 6 and 7 relate to Principle of Natural justice and use of data contained in the Pen Drives. It has already been discussed earlier that there is no dispute about the fact that the data contained in the said pen drives belonged to the appellant group and copy of the data was provided to the appellant before finalization of the assessment. The appellant has objected that Mr. Riyaz was not made available for cross-examination by the Department. In this regard, it is an important fact that the statement of Riyaz has not been used to compute the income of the appellant, but it is the date contained in the pen drive has been used for assessment. Since the statement of Mr. Riyaz has not been used against the appellant, there is no question of giving an opportunity of cross-examination of Mr. Riyaz to the appellant arises. The data in the Pen Drive has been used against the appellant and, therefore, 6 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 a copy of the same was given to the assessee. Mr. Riyaz is an employee of Mr. Shareef and it is an undisputed admitted fact that data contained in the Pen Drive found during the course of survey at the premises of Mr. Riyaz belonged to the assessee. I do not see any violation of Principle of Natural Justice in the facts of this case. Since the above data belonged to the appellant, the AO has correctly used them for the purpose of assessment. Grounds of Appeal Nos. 5, 6 and 7 are thus dismissed.
5. Against this, the assessee is in appeal before us. First, we will discuss about the main grounds in Ground Nos. 2(a), 2(b) and 2(c).
5.1 Ground No. 2(a)
a) The pen drive is claimed to have been recovered from the residence of one Mr. Shareef in survey u/s 133A of the Act without cross examining Mr. Riyas. The main contention of the Ld. AR is that Mr. Riyaz was not available for cross examination before the Assessing Officer. It is an admitted fact that the statement of Mr. Riyaz had not been used to compute the income of the assessee, but it was the data contained in the pen drive which was used for the assessment. Hence, there is no question of giving opportunity of cross examination of Mr. Riyaz by these assessees. The data contained in the pen drive has been used against the assessee and therefore, a copy of the same was given to the assessee. Mr. Riyaz is an employee of Mr. Shareef and it is an admitted fact that the data contained in the pen drive which belonged to the assessee was found during the course of survey at the premises of Mr. Riyaz. It is needless to say that the Assessing Officer had given an opportunity of cross examination to Shri Riyaz on 23/03/2016 and 24/03/2016 However, Shri Riyaz did not turn up. It is to be noted that Shri Riyaz is an 7 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 employee of the assessee-Company and after recording the statement of Shri Riyaz, the same was confronted to Shri V. Shareef on 04/08/2014 in reply to which Shri V. Shareef stated as follows:
""Q.No.3 We are showing you a bunch of loose sheets marked as A-1 ,which was obtained and impounded from your office on the course of survey u/s l33A at the business premises of corporate office of M/s Hillwood group of cornpanies._Please comment on this this Ans.No.3 I have examined this. This pertains to the actual income expenditure details of the three companies - M/s Hillwood Exports & Imports ,M/s Hillwood Furniture, M/s Hillwood Makaraparamba on 24/07/2014 Page No.1,2,3 are prepared by Shri.Beeran, who is my staff. Page no.11 is prepared by my another staff Shri.Krishna Prasad. Further there are some more sheets which pertains to the sales on 24/07/2014. The accounts of all the three above concerns are included in these slips.lt is a daily practice we follow in maintaining accounts. Shri Beeran and Shri. Krishna Prasad daily prepare such reports and submit to me at the day end or on the next day. I generally give this slips to Shri.Hakim or Shri.Rajeev in accounts after verification. In addition to the above, these slips will have daily expenditure, outstanding amounts from customers and also the details of bank deposits/cheques etc. Q.No.4 In the search u/s 132 conducted at bussiness premises of M/s Hillwood group of companies, loose sheets inventorised as HW-1 and HW-2 were seized, which included the actual accounts of your business, When these materials were examined it was noticed that the complete accounts are not shown in the returns filed before the department. A detailed statement were recorded from you in this regard then. Now based on the above evidence, it is apparent that even after the Search action, your companies are not completely accounting your sales in books. Please comment on this.
A.4 I have given a detailed statement on 04.12.2014 about this. I admit that the actual sales are not fully accounted.
Q.5 On 14/07/2014, Income tax department conducted a survey u/s 133A at the office room premises of Shri M. Riyas. From there, we impounded a lot of slips/sheets etc. which contain the actual daily statements, income expenditure statements and pen drives containing actual accounts of our companies and personal investments. Please examine this and comment.8
I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 A.5 I have examine this. I admit that all these are related to my companies only. As I said before the daily slips, statements made by Beeran and Krishna Prasad are included in the bunches impounded from Shri Riyas. Also various details containing actual debtor outstanding amounts. Actual investment details of the building construction at Kallai-HillwoodCollonade and another building near to my house are included in this. I confirm that this contains the actual details. I have received a copy of the documents/pen drive extracts from here for reference.
Q.6 When the pen drives received from analysed with the help of Forensic experts, it was understood that it contain a software by name "Clipper" which contains actual accounts of your companies since FY 2006-07,your personal investments, your cash withdrawal and personal expenses. From further analysis it was evident from the entries that the data is entered in to the software as per the daily statement prepared by Beeran and Krishna Prasad. Please comment in this regard A.6 I don't know computer. I can answer this after consulting with Hakim and Rajeev in our accounts section.
Q.7 We are showing you the P&L Account statement. Balance Sheet and Debtor's/Creditor's list. This includes the actual accounts from 2006-07, various outstanding amounts etc. This was shown to Shri. Hakim for examination before. Please examine and comment on this A.7 I examined this. As I said I can comment on this after consulting Shri. Hakim or Shri.Rajeev. Please grant me time till 11/08/2014 for this explanation (However, assessee failed to give further explanation in this regard till date).
Q.8 Do you have anything more to say?
A.8 I have understood that I have failed in submitting actual accounts. I will submit the actual accounts before the department and shall pay the taxes accordingly. 1 am thinking of going to Settlement commission to resolve this issue. Kindly exclude me from Penalty/Prosecution.
5.1.1 The above reply shows that objection raised by the assessee is totally misplaced and the assessee was in the knowledge of the activities of Shri Riyaz in connection with the assessee's case. Shri Riyaz, being an employee of the assessee 9 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 is under his control and non attending the cross examination of Shri Riyaz is only a last effort to save the assessee and it cannot be taken at the face value. Further, the assessee has stated that Shri Riyaz is no more an employee of the assessee-
company. However, the assessee has not furnished any details of his resignation when he left the employment with the assessee-Company and also has not furnished his new address. Without furnishing the details of the new address of Shri Riyaz if he left the employment with the assessee-company, the assessee is only blaming the Department for not providing an opportunity of cross examination of Shri Riyaz which is only a self serving argument. We do not find any fault of the Department for not giving opportunity of cross examination of Shri Riyaz. Now the assessee wants to derive benefit out of it which cannot be given by us at this stage.
Hence, in our opinion, the CIT(A) is justified in holding that there is no necessity of providing opportunity of cross examination of Mr. Riyaz by these assessees. Thus, Ground No. 2(a) in all the appeals is dismissed.
5.2 Ground No. 2(b)
b) The Assessing Officer has gone wrong in accepting the pen drive as a piece of evidence and making substantial additions to the income returned. The pen drive is not having any evidential value as per evidence Act The assessees objected to consider the pen drive found with Mr. Riyaz as evidence for framing the assessments. The pen drives were unearthed from Mr. Riyaz and it is an admitted fact that the data contained therein belonged to the assessee. Being so, it was used for framing the assessments. Under section 2(12A) 10 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 of the Act, books of accounts includes ledgers, day book, cash books, account books and other books kept in written form or printouts of data stored in a floppy, disc, tape or in other forms of electronic magnetic data storage device. Hence, pen drive forms part of the books of accounts and the data therein could be used for framing assessments. We do not find any infirmity in the order of the CIT(A) and the same is confirmed. Thus, this ground in all the appeals is dismissed.
5.3 Ground No. 2(c)
c) The Commissioner of Income Tax has gone wrong in omitting to consider the Appellants' submission regarding the lack of evidential value of data in the Pen drive.
5.4 With regard to non consideration of submissions of the assessee by the CIT(A) regarding lack of evidential value of data in the pen drive, as discussed in Ground No. 2(b), this ground shall have no merit and the same is dismissed since the pen drive forms part of the books of accounts and it could be considered for framing the assessments of the assesses. Thus, Ground No. 2(c) in all the appeals is dismissed.
Admission of Additional Grounds
6. Before us, the Ld. AR filed petition for admission of additional ground in respect of all the assessees for all the assessment years under consideration with following application for admission of the same:
"I am filing herewith additional grounds in respect of these assessment years which may be considered and adjudicated in the appeal proceedings. The 11 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 omission to file this grounds may be condoned and the grounds may be considered in the appeal proceedings."
6.1 The additional ground reads as under:-
"The assessment is completed on the basis of the data from the three pen drives impounded from the house of Mr. Riyaz at the time of survey u/s 133A of the Act. The pen drives are not subject to verification as per the mandatory prescription u/s 65A and 65B of the Evidence Act 1872 read with sec 93 and the 2nd schedule of the Information Technology Act 2000 before adopting this as an evidence against the assessee for the purpose of assessment."
6.2. The Ld. AR filed affidavit of Shri V. Shareef dated 29/03/2019 wherein it was submitted that: :
"1) In the Assessment order dated 29-03-2016 passed by Deputy Commissioner of Income Tax, Central Circle-2, Kozhikode, Para 23C, it is stated as under:-
"The claim of the assessee is against facts. The Pendrives recovered from the premise of Shri. Riyaz was subject to forensic examination in the presence of Shri. V. Shareef on 22-07-2014 & 23-07-2014. During the forensic examination the data integrity of the pendrives were secured by generating hash value report. The report were handed over to Shri. V. Shareef also. Working copy of the data in the pendrives were taken during the forensic examination. This working copy was provided to Shri. A.P Vinod Kumar the A.R of the assessee for the purpose of reference during the course of assessment proceedings."
In the above paragraph of the assessment order, it is stated that the forensic examination of the pen drives was conducted in my presence on 22-07-2014 and 23-07-2014. Further it is also stated that the hash value report is handed over to me.
Both the above statements are not true and correct and is not representing the facts."
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I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 6.3. Further, the Ld. AR filed affidavit of Shri A.P. Vinod Kumar dated 29/03/2019 wherein it was stated that:
"1) In the Assessment order dated 29-03-2016 passed by Deputy Commissioner of Income Tax, Central Cirlce 2, Kozhikode, Para 23C, it is stated as under:-
"The claim of the assessee is against facts. The Pendrives recovered from the premise of Shr. Riyaz was subject to forensic examination in the presence of Shri. V. Shareef on 22-07-2014 & 23-07-2014. During the forensic examination the data integrity of the pendrives were secured by generating hash value report. The report were handed over to Shri. V. Shareef also. Working copy of the data in the pendrives were taken during the forensic examination. This working copy was provided to Shri. A.P Vinod Kumar the A.R of the assessee for the purpose of reference during the course of assessment proceedings."
The working copy of the Hash value report was not handed over to me as claimed in the above para of the Assessment order."
6.4 Regarding additional ground, it was submitted that due to inadvertent omission, this ground was not raised on earlier occasion and submitted that the additional ground is directly related to Ground Nos. 2(a), 2(b) and 2(c) which is with regard to applicability of provisions of section 65A nd 65B of the Evidence Act, 1872 r.w.s. 93 and 2nd schedule of the Information Technology Act, 2000 before adopting the pen drives obtained from the assessee as evidence against the assessee.
6.5 The Ld. AR also submitted that the assessments were made based on recovery of pen drives without following basic principles of natural justice. Hence, it cannot be used as evidence to frame the assessments in these cases. It was submitted that 13 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 even after accepting the demand for opportunity to cross examine Sri Riyaz, summons was issued for his appearance and the opportunity was thereafter denied when he did not turn-up for cross examination pursuant to the summons issued. It was submitted that the Assessing Officer had included stock transfer to branches and sister concerns valued Rs. 2,99,77,239/- in the sales turnover wrongly. It was submitted that the pen drives which were described as "financial tool" did not contain any entry regarding purchases and payment made through banking channels. The ld. AR submitted that the assessment was made by taking some items from the pen drive and some items from regular books of accounts by adopting "pick and choose" method. It was submitted that the seized material claimed to have been recovered during search were not provided to the assesse for verification in spite of assessee's specific request for the same and the assessment based on such material is illegal and void. The assesses have not pressed any other arguments.
7. The Ld. DR submitted that in the affidavit assessee had questioned the statement made by the Assessing Officer in order dated 29/03/2016, para 23c. The Assessing Officer states that during the course of survey 3 pen drives were impounded. It was submitted that the pen drives were subjected to forensic examination in the presence of V. Shareef on 22/07/2014 & 23/07/2014. During the forensic examination the data integrity of the pen drives were secured by generating Hash Value Report. The report was handed to V. Shareef also. The 14 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 working copy of the data in the pen drives were provided to A.P. Vinod Kumar, AR of the assessee for the purpose of reference during the course of assessment proceedings. On a perusal of the impounded materials, the inventory list of the A/c, banks etc found/seized was identified. In the inventory list item no. 9,10,11 in page 2, there is mention of the 3 pen drives impounded. In the 1st page of the inventory list, Shri V. Shareef has signed starting that he has received the copy. It was submitted that there are also Hash Value Reports generated for the pen drives. The fact that the Hash Value Reports are seen signed that the Hash Value Reports are seen signed by the assessee, shows that he was very much aware of the forensic examination, and the same was conducted in his presence and it was duly signed by him.
7.1 The Ld. DR opposed the admission of additional ground as the issue raised by the assessees is not emanating from the orders of the lower authorities.
8. We have heard the rival submissions and perused the record. Now the question for us to consider is whether the additional grounds of appeals can be raised before the Tribunal which does not arise out of the order of the CIT(A). The law is very well settled, the power of Tribunal is not confined to deal only with issues arising out of the order of the CIT(A) or, for that purpose out of the order passed by the Assessing Officer. In the case of National Thermal Power Corporation Ltd. vs. CIT (229 ITR 383), the Supreme Court observed that the power of the Tribunal is not 15 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 confined to dealing with the issue which is arising out of the order of the authorities below. As long as the issue is relating to framing of correct assessment for the relevant assessment year, and particularly, when the relevant facts can be ascertained from the material already on record, it is open to the assessee and the Department to raise that issue provided the issue was raised as bona fide and the same should have been raised for good reasons. In our opinion, the Tribunal has the power to admit the additional ground of appeal which may not arise out the order of the lower authorities. There is no dispute or controversy about the power of the Tribunal to admit the additional ground of appeal. However, whether, in a particular situation the Tribunal should exercise such powers or not, would essentially depend upon the facts of such a case and as there cannot be any, and there is o straitjacket formula of universal application to decide the question of admission of additional ground or criteria for admission thereof, which operates de hors the peculiarities of a fact situation. As long as the issue is related to the correct determination of tax liability of the assessee in a particular assessment year and availability of relevant facts found from the material already on record, it is open to the assessee and department to raise that issue provided that the issue so raised is bona fide and the same could not have been raised on an earlier occasion for good and sufficient reasons. The limitations are that there are no new facts which required to be investigated by the said admission of additional ground and there should be good and sufficient reasons for not raising the issue on an earlier occasion by the assessee/department. The assessee has to demonstrate the 16 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 existence of good and sufficient reasons for not raising the additional ground in the earlier proceedings of the lower authorities. The additional grounds have to be taken up before the Tribunal on account of bona fide reasons which are stated to be true and correct reasons by the assessee. On this fact, in our humble opinion, the assessees' cases fail. We find from the reasons given by the assessees that the assessees have given reasons for raising the additional ground before us as follows:
"I am filing herewith additional grounds in respect of these assessment years which may be considered and adjudicated in the appeal proceedings. The omission to file this grounds may be condoned and the grounds may be considered in the appeal proceedings."
8.1 In our opinion, there should be good and sufficient reasons for raising the additional ground by the assesses before the Tribunal. The discretion given to the Tribunal to consider the additional ground is not an arbitrary one circumscribed by the Limitation Act. The discretion vested with the Tribunal to do so is to be exercised in the interest of justice in the facts and circumstances of each case. Normally, a question of fact is not to be allowed to be raised for the first time as it may prejudice to other side. If such a question is raised at the earliest opportunity, the other side can lead evidence, which it may not be able to do if such a question is raised for the first time before the Tribunal. In view of this, the plea to admit the additional ground could not be allowed to be raised for the first time before this Tribunal.
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I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 8.2 In the present case, the assessees have failed to explain the reason for not raising the additional ground on earlier occasion and also the reason given by the assessees is that only omission to raise the additional ground and they have not given any reason for such omission. Therefore, it is evident that the assessees adopted callous approach which demonstrated utter indifference in the matter. In such a situation, sufficient cause does not exist to raise the additional ground on earlier occasion which remains unexplained. In our opinion, there is complete negligence on the part of the assessees and complete absence of due diligence to pursue the matter in question. It cannot be said that the case of the assessees falls under the category which is beyond the control of the assessee. As discussed earlier, the assessee has failed to show "sufficient cause" for not raising the additional ground within the period of limitation without explaining the delay till the date of hearing of these appeals. In other words, the whole period of delay is not at all explained as held in the case of Ramlal and others v. Rewa Coalfields Ltd., [AIR 1962 SC 361] wherein it was held that it is not the case of the assessee whether the assessee exercised due diligence so as to file legal remedy. As discussed earlier, the assesses have not given sufficient cause for raising the additional ground before us in these cases. Hence, it cannot be admitted. 8.3 Even otherwise, the additional ground is not having any merit. As can be seen from the record that the Department generated the hash value report of each pen drive found during the course of survey in the case of Shri Riyaz. The Department 18 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 retrieved the hash value report in accordance with the applicability of provisions of section 65A and 65B of the Evidence Act, 1872 r.w.s. 93 and 2nd schedule of the Information Technology Act, 2000 :
A Hash Value Report Of Riyaz-M 4GB Pendrive 1 Name Riyaz-M 4GB Pen drive PD-1 Description Physical Disk, 7,821.312 Sectors 3.7GB Logical Size 0 Initialized Size 0 Physical Size 512 Starting Extent oso File Extents 1 References 0 Physical Location 0 Physical Sector 0 Evidence File Riyaz-M 4GB Pen drive PD-1 File Identifier 0 Code Page 0 Full Path Riyaz-M Sandisk Pendrive (black & white) 4Gb\Riyaz-M 4GB Pen drive PD-1 EO1 Device Name Riyaz-M Sandisk Pen drive PD-1 Actual Date 07/23/14 1017:11AM Target Date 07/23/14 1017:11AM File Path C:\Users\D N A\Desktop\PD 2\Riyaz-M 4GB Pen drive PD-1 .E01 Case Number Riyaz-M Sandisk Pendrive (black & white) 4Gb Evidence Number Riyaz-M 4GB Pen drive PD-1 Examiner Name IT Calicut Notes Riyaz-M 4 GB Sandisk Pendrive (black & white) PD-1 Label SanDisk Model Cruzer Blade Serial Number 200517384209D79052E5 Drive Type Fixed File Integrity Completely Verified, 0 Errors Acquisition MD5 7176ffafba844724d00a8764bb63a96 Verification MD5 7176ffafba844724d00a8764bb63a96 GUID 35d955165c503843811fcd90745558f9 EnCase Version 6.19.2 System Version Windows Unknown Witnesses Forensic Expert Assessee A.O 19 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 B Hash Value Report of Riyaz-M4GB Pendrive 1 Is Physical . Raid Stripe 0 Size Error 64 Granularity 0 Process ID 0 Index File C:\Program Files\EnCase6\lndex\Riyaz-M 4GB Pen drive PD-1-35d955165c503843811fcd90745558f9. Read Errors 0 Missing Sectors 0 CRC Errors 0 Compression good Total Size 4,004,511,744 Bytes (3.7GB) Total Sectors 7,821,312 Disk Signature 00000000 Partitions Valid Hash Properties Name Value Head Set Hash category Partitions Name Id Type Start Total Size Sector Sectors Ob FAT32 0 7,821,312 3.7GB Witnesses Forensic Expert Assessee AO C Hash Value Report of Riyaz-M Pendrive 2 Name Riyaz-M Pendrive 2 Description Physical Disk: 7,821,312 Sectors 3.7GB Logical Size 0 20 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 Initialized Size 0 Physical Size 512 Starting Extent OSO File Extents 1 References 0 Physical Location 0 Physical Sector 0 Evidence File Riyaz-M Pendrive 2 File Identifier 0 Code Page 0 Full Path Riyaz-M Pendrive 2 Device Name Riyaz-M_Pendrive_2 Actual Date 07/22/14 05:55:27PM Target Date 07/22/14 05.55:27PM File Path C:\PD2\PD2.E01 Case No. Riyaz-M_Pendrive_2 Evidence Number Riyaz-M_Pendrive_2 Examiner Name IT -Calicut Notes 4GB Pendrive belongs To Riyaz-M Label SanDisk Model Cruzer Blade Serial Number 2004 3411431DDC929CC3 Drive Type Fixed File Integrity Completely Verified, 0 Errors Acquisition MD5 f07ba9f50106d751ad33S44ec23Q4f39 Verification MD5 f07ba9f50106d751ad33S44ec23Q4f39 QUID 3556b083d16f1149892e232ace655b94 EnCase Version 6.19.2 System Version Windows 7 Witnesses Forensic Expert Assessee A.O Hash Value Report of Riyaz-M Pendrive 2 Is Physical Raid Stripe Size 0 Error Granularity 64 Process ID 0 Index File C:\Program Files\EnCase6\lndex\Riyaz-M Pen drive-2 3556b083d16f1149892e232ace655b94 Read Errors 0 Missing Sectors 0 CRC Errors 0 Compression Good Total Size 4,004,511,744 Bytes (3.7GB) Total Sectors 7,821,312 Disk Signature 6F647134 Partitions Valid 21 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 Hash Properties Name Value Head Set Hash category Partitions Name Id Type Start Total Size Sector Sectors Ob FAT32 0 7,821,312 3.7GB Witnesses Forensic Expert Assessee AO D Hash Value Report of Riyaz-M Pendrive 3 Name Riyaz-M_Pendrive_3 Description Physical Disk, 15,826.944 Sectors 7.5GB Logical Size 0 Initialized Size 0 Physical Size 512 Starting Extent OSO File Extents 1 References 0 Physical Location 0 Physical Sector 0 Evidence File Riyaz-M-Pendrive 3 File Identifier 0 Code Page 0 File Path Riyaz-M-Pendrive 3 Device Name Riyaz-M_Pendrive_3 Actual Date 07/22/14 06.08.30PM Target Date 07/22/14 06.08.30PM File Path C:\PD3\riyaz M-Pendrive-3 E01 Case No. Riyaz-M_Pendrive_3 Evidence Number Riyaz-M_Pendrive_3 Examiner Name IT -Calicut Notes 8GB Strontium Pendrive belongs To Riyaz-M Label SRT Model USB Drive Type Fixed 22 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 File Integrity Completely Verified, 0 Errors Acquisition MD5 f15f6c64d0336439d65d39f5f440a53f Verification MD5 f15f6c64d0336439d65d39f5f440a53f GUID 8255cd57cd96dc45b24ce7acb59e1fde EnCase Version 6.19.2 System Version Windows 7 Witnesses Forensic Expert Assessee A.O Hash Value Report of Riyaz-M Pendrive 3 Is Physical . Raid Stripe 0 Size Error 64 Granularity 0 Process ID 0 Index File C:\Program Files\EnCase6\lndex\Riyaz-M-Pendrive-3 3556b083d16f1149892e232ace655b94 Read Errors 0 Missing Sectors 0 CRC Errors 0 Compression Good Total Size 8,103,395,328 Bytes (7.5GB) Total Sectors 15,826,944 Disk Signature 182E07C3 Partitions Valid Hash Properties Name Value Head Set Hash category Partitions Name Id Type Start Total Size Sector Sectors Ob FAT32 0 7,821,312 3.7GB Witnesses Forensic Expert Assessee AO 23 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018
8.4 The Hon'ble Supreme Court in the case of Anvar P.V. vs. P.K. Basheer & Ors. held that if electronic record is being used as evidence, the conditions mentioned u/s. 65B(4) of the Evidence Act has to be complied with. The conditions that are to be satisfied are enumerated in para 15 of the judgment of the Supreme Court in the case of Anvar P.V. vs. P.K. Basheer & Ors (10 Supreme Court Cases 473). The Hon'ble Supreme Court in the case of T.K. Sanalkumar vs. CIT Cochin in SLP No.32635 of 2011 dated 04.07.2012 while disposing off SLP filed by the assessee had directed the Commissioner to consider a ground which is identical to the additional ground raised by the assessee. But, in the present cases, the Department actually followed the clear procedure and retrieved the 'hash value report' which was duly acknowledged by the assesses. Now, the contention of the assessees is fully devoid of merit. Thus, the additional grounds of appeals of the assesses are dismissed.
Admission of Additional Evidence
9. Further, the Ld. AR filed affidavit of Shri V. Shareef dated 27/06/2019 wherein it was stated as under:
"1. Consequent to a search conducted in the case of the Companies of which I am the Managing Director and Managing Partner, assessments were carried out under the provisions of the IT Act. While doing so, the Assessing Authority placed reliance on the data said to have been recovered from three pen drives which are alleged to have been impounded at the time of a survey conducted at the residence Sri Riyas, an employee of the Group.
2. The appellants had taken the stand that [1]: authenticity of the pen drives subjected to forensic examination is NOT PROVED, [2]: the "data integrity" of the pen drives WERE NOT SECURED before they were subjected to forensic 24 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 examination, [3]: the pen drives WERE NOT ACCESSED IN THE PRESENCE OF THE PERSON FROM WHOM THEY ARE ALLEGED TO HAVE BEEN IMPOUNDED AND/OR THE ASSESSEE AND OVER AND ABOVE EVERYTHING, THE ALLEGED RECOVERY WAS DURING AN ILLEGAL AND UNAUTHORISED SURVEY - at the residential house of an employee though in the assessment order and other records, it is made out that the recovery was from the room" - at least in the English translation of the statements and records. In fact during the course of the hearing on the appeals before this Hon'ble Tribunal, an affidavit was sworn to by this deponent, denying the statements made by the AO in the assessment order and affirming that [1]: the pen drives were NOT subjected to forensic examination in his presence and [2]: the hash value report [generation of hash value being described as a step to secure the data integrity of the pen drives] was NOT handed over to him. Simultaneously, the appellants' A.R. had filed an dt. 30.03.2019 denying the statement, that the working copy of hash value report was provided to him.
3: In order to justify the action of placing reliance on the contents of the pendrives, the AR has filed a reply stating that Hash -Value Reports were generated for the pen drives on 22.23/07.2014 in the presence of this deponent as confirmed by his signature in the Hash Value Reports and therefore the "data integrity" of the contents of the pen drives have been properly secured.
4: The appellants who are not computer-savy was not able to understand the significance of the term "hash value", "data integrity" etc. etc. used in the reply.
Therefore this deponent, through their Counsels, consulted an Expert in the field of Computer Systems/forensic Science in relation to computer data etc. - Dr. VINOD BHATTATHIRIPAD M.Sc. [OR & CA], M.Phil [Computer Sc.], Ph.D (cyber Forensics), Calicut - an internationally acclaimed Expert in the field of Forensic Sciences - on the implications of ""hash value reports",, accessing data from storage media impounded, "securing data integrity"and other relevant matters which arise in the light of the specific statements made in the Reply. In consultation with the Counsels, specific questions were framed and the opinion sought.
5. The Expert - Dr Vinod Bhattathiripad - has now made available his opinion on the various questions framed as per his Opinion dated 15.06.2019. The said opinion would disclose that the claims and assertions made by the Assessing Authority in the assessment order with regard to the "safe guards" said to have been taken with respect to the pen-drives in the matter of accessing data etc. are not well-founded. The opinion expressed by the Expert is highly relevant and n deciding the various issues raised in the appeals.25
I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018
6. In the circumstances, it is prayed that this Hon'ble Tribunal may be pleased to permit the Petitioners to produce the EXPERT OPINON BY Dr VINOD BHATTATHIRIPAD M.Sc. [OR & CA], M.Phil. [Computer Sc.], Ph.D [Cyber Forensics], Calicut dt. 15.06.2019 produced herewith may accepted as ADDITIONAL EVIDENCE IN THE ABOVE APPEAL/S."
10. The Ld. AR has also filed additional evidence in the form of forensic report dated 15/06/2019 which reads as follows:
About Dr. P. Vinod Bhattathiripad Introduction; Dr. P. Vinod Bhattathiripad has been a cyber forensic expert to Police, Judiciary, Directorate of Revenue intelligence (DR1), Special Intelligence and Investigation Bureau (SHIB) of Customs, Department of lncome Tax in India and several multi-national companies. He is consulted on crimes involving digital evidence. In addition, he has been an expert commissioner for several courts in the Indian Judiciary in a few civil/criminal cases involving cyber evidence. Currently, he holds the consultative-post of the Chief Technology Officer (Honorary) to the Director General of Police, Kerala.
Expertise; He is the developer of POSAR, a recent protocol for forensics of software copyright infringement. he has worked on AFC (Abstraction- Filtration-Comparison), the method of investigation of software piracy and copyright infringement cases in the US and the international judiciary.
Education: His Masters degree is on Operations Research and Computer Applications, M.Phil degree is on Computer Science and his Ph.D is on forensics of software copyright infringement. He is the first Asian to have obtained Ph.D in this area.
Publications; He has published several research papers on forensics of software copyright infringement in many leading journals across the world and has been a speaker on "software copyright infringement" in many leading journals across the world and has been a speaker on "software copyright infringement" in several world best conferences in cyber forensics. These conferences include ICDF2C (Abu Dhabi in 2010 and New Haven, USA, in 2014), ADFSL (USA in 2011, 2012, 2015 and 2018). Also, he was the acting chairman of the workshop on Computer Forensics in Software Engineering as part of the IEEE world conference on Computer Science (Izmir, Turkey in 2012). He has been a technical committee member of several cyber crime 26 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 conferences in Asia, Europe and the USA. He is a reviewer of several journals and conference proceedings on this topic, across the world.
He has authored a reference book titled "judiciary-friendly forensics of software copyright and this book has been published IGI Global, Pennsylvania, USA. This book is now being sold by leading distributors (including Amazon dot com) across the world and is a reference book in several western universities. This book is widely referred to in by judges and lawyers specialised in Intellectual Property crimes.
Forensic feedback This forensic feedback is based only on the facts shared by Adv. Raghunath vide email dated 11-June-2019 and also after going through the records produced by him and is not a complete forensic report after going through the entire case records. All the available records are related to the search conducted on 04-12,2013 at the business premises of M/s. Hiliwood Group of Companies and also at the residential premises of its Director and others and also related to the survey conducted on 14.07.2014 at the residence of one of staff members. This forensic feedback is in the form of answers to the queries prepared by Adv. Raghunath, A What are the steps to be taken by the officials when storage mediums like pen-drives/CDs/hard-drives which are suspected to contain "material data" are found during the course of inspection (search and/orsurvey] - to safe guard the interests of both the Department and the Assessee ? Answer: In order to safe-guard the interests of both the department and the person (from whom the storage devise is recovered), it is highly necessary that the seized storage devise reaches the Forensic Expert without the data available therein being accessed by anybody. In order to ensure this, it is highly necessary that the following steps should be followed by the Authority who carries out the seizure procedure on the electronic storage devise:
i. Officer seizing the devise shall first - in the presence of the person from whom devise is seized [or the owner of the pen drive] - generate hash value from the electronic storage devise [pen drive/s in this case] by performing hashing process on the devise by using a world standard hashing software tool and then note down the resulting hash value in the report prepared in regard to the seizure of the devise:27
I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 ii. The Officer seizing the devise shall forward the seized storage devise [pen-
drive/s in the instant case] along with the seizure report - which disclose the hash value generated while seizing the devise - for forensic examination; Further, in order to ensure the integrity of the content of the electronic storage devise [pen-drive/s in the instant case] that reached the forensic examiner for evaluation, it is highly necessary that the following steps should be followed by the the forensic examiner.
iii. The forensic examiner, before the forensic evaluation of the devise, should again perform the hashing process on the pen drive (by using a world standard hashing software tool) and then re-calculate the hash value:
iv. The forensic examiner thereafter compares the newly generated hash value with the one detailed in the Seizure Report:
a. If the hash values are same, the examiner can assume that the integrity of the content of the devise stands intact and can then proceed with his / her forensic examination of the devise.
b. If they are different, then the examiner is required to report that there have been suspicious attempts of accessing/tampering/modifying the contents of the devise between the date of seizure and date of the forensic evaluation.
The above procedure is akin to the steps taken when material objects or samples which are required to be examined by experts (during the course of investigation into crimes and/or even food adulteration cases) where the material object/sample are wrapped, packed, tied and sealed with the monogram of the authority and thereafter sent to the Chemical Laboratory where the Analyst - before taking up the sample / material object for examination - will record his satisfaction that the seal is not tampered with and the packing intact, before proceeding to analyse.
B: Whether such steps have been taken in the present case - given the facts detailed above?
Answer: Absolutely no.
From the facts as supplied to me by you, I find that the pen drives were impounded on 14/07/2014 under inventory prepared on 14/07/2014. The copy of the inventory available refers to three pen drives - Sl. No. 9, 10 and 11 in the list - Black coloured Sandisk Pen Drive (4 GB), Red coloured Sandisk Pen Drive (4 GB) and xxxxxx Pen Drive (8GB). However, the Inventory does not supply any "hash value" as generated at the time of impounding, if , as a matter of fact, hash values 28 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 were generated. So, I SUSPECT that the authority, while conducting the seizure of pen drive, had failed to take steps to secure the integrity of the pen drive. The details above encourage me to raise an important question: What action did the authority take to ensure that pen drive has not been modified or tampered with by anybody during 14.07.2014 and 22/23.07.2014 with an illegal intent?
The hashing processes done on 22.07.2014 and 23.07.2014 DO NOT in any way protect the integrity of the content of the 3 pen drives as they DO NOT to ensure that the data in the pen drive remained safe and secure during 14.07.2014 and 22/23.07.2014. To add to this, the hash value reports made available to me does not contain any declaration from the Forensic Expert (who is to subject the pen drives to forensic analysis to the effect) that he has compared the hash value as generated by him on 22/23-07.2014 with hash values, if any, generated on 14.07.2014 (See the steps iii and iv in the answer to the query A). The details above encourage me to raise another important question; What action did the forensic expert take to ensure that pen drive has not been modified or tampered with by anybody during 14.07.2014 and 22/23.07.2014 with an illegal intent? I, therefore assume that the first hashing process was carried out only on 22/23.07.2014 and no hashing process was done on 14.07.2014. This time delay seems to have defeated the objective of the whole process of hashing because the authority, while conducting the seizure, seems to have failed to take steps to ensure the integrity of the C. Whether the generation of Hash Value Report in the presence of the assessee would mean that the contents of the pen drives were accessed in the presence of the assessee?
Answer: Absolutely no. Please note that, in order to generate the Hash Value Report the officer need not access any of the entire content of the pen drive. The officer's hashing tool itself will automatically access the entire content of the pen drive, calculate the hash value and finally, generate the hash value report. D. Whether in the facts and circumstances of the case highlighted above, can it be concluded that the seizure of the pen-drives was generally following the related protocols?
Answer: Absolutely no. The hashing process should have been performed by the officer ideally during the impounding on 14.07.2014 in the presence of the owner of the pen drives and then, the resulting hash values should have reported through the impounding report. These hash values (dated 14.07.2014) would have then uniquely represented the content of the pen drives as on 14.07,2014. Also the 29 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 hashing process should have ideally been repeated by the forensic examiner on 22/23.07.2014 and the resulting hash values should have then been compared with the hash values generated on 14.07.2014.
As things stand, the hash values, if any, generated on 14.07.2014 seem to be missing. Also, the hash values that were actually generated on 22.07.2014 do uniquely represent the 'content of the pen drive, as only on 22.07.2014 and DO NOT reflect the modifications, if any, done during the period 14.07.2014 to 22.07.2014 on the files residing in the pen drive. So, the seizure of the pen drives seems to have failed to follow the related protocols. E. What was the actual course of action that should have been taken by the Officials in the above matter bearing in mind the interests of the Department as well as the assessee when data available in the three pen drives were accessed by the Expert ?
Answer: Already answered above.
F. What is meant by the term "hash value" and what is the significance of "hash value"
Answer: Hash Value is a term associated with Cryptography which is an area of research to both Mathematics and Computer Science.
Hash value is a numeric value of a fixed length that uniquely identifies a large volume . A hash value is often calculated using a standard "hash function". A hash function is mathematical algorithmic function. The process of calculating a hash value (obviously, by using a hash function) is called Hashing process.
In short, Hashing is a Mathematical calculation process by using a Mathematical Hash Function. And, Hash Value is the result of the process.
In order to calculate a hash value, several standard hash functions do exist. The world standard MDS hash function is an example of such a hash function. There exist several hashing software tools, each of which is based on one of the world hash functions. For example, there exist several software tools based on the world standard MD5 hash function.
Now, here is a brief description of the algorithmic function of a hashing software tool: When data is fed into an MD5 hashing-software tool, the tool would generate a 128-bit hash value string which, for laymen, is a 32 digit hexadecimal number. This 32 digit hexadecimal number will uniquely represent the large volume of data that fed into the MDS hash function. This representation is "unique" because any 30 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 subsequent attempt to modify any file residing this storage device will definitely change the hash value of the storage device.
Lastly, please note that, we need not feed the entire data into this software tool. The tool will automatically take the data from the storage medium and calculate the hash value.
G. What is meant by "securing" data integrity of the pen drives and how does "generating hash value report" secure data integrity of the pen drives" ?
Answer: The process of hashing of a storage device is only a calculation process with the sole objective of arriving at a hash value of the content of the storage device and is not intended to lock or secure the content of the storage device. That means, subsequent to this hashing process, the content of the pen drive remains completely open and accessible to anybody for any type of modifications. Also, the process of hashing is not intended to make any change in the content of the storage device. In short, by hashing a pen drive, the data residing in the pen drive DOES NOT get locked. DOES NOT get affected and DOES NOT get modified.
Because of this feature, the hashing process is extensively recommended world over by Cyber Forensics Experts as a process to ensure the integrity of a confiscated electronic storage device. For example, hashing process is often recommended by cyber forensic experts in order to ensure the integrity of the content of a confiscated pen drive. The integrity of the data contained in the pen drive is ensured by ensuring that the hash value calculated at the time of confiscating the pen drive is same as the hash value re-calculated at the time of the subsequent forensic evaluation of the pen drive. Any variation in these two hash values is an indication to an attempt of modifying the contents of the pen drive in between the date of confiscation and date of the forensic evaluation. "
11 The Ld. AR submitted that there was no evidence to show from which of the Pen Drives, the various data as highlighted in the assessment order had been recovered. There is only a working copy of the data "found" that was handed over to the AR. It was submitted that a verification of the Hash Value Reports would show that the three pen drives which were subjected to hashing process were: 31
I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 A: PEN DRIVE 1: Riyaz-M Sandisk Pendrive [BLACK & WHITE] 4 GB B: PEN DRIVE 2: Riyaz-M Pendrive 2: 4 GB C: PEN DRIVE 3: Riyaz-M Pendrive 3: 8GB: Strontium 11.1 However, the Ld. AR submitted that the Pendrives impounded, as per the List produced do not include a BLACK & WHITE pen drive while the pen drives analysed include BLACK & WHITE PIN DRIVE and it was therefore apparent that what was subjected to forensic analysis were not those pen drives which were impounded from Mr. Riyaz. In any event, there exists one pen drive at least which was not one amongst the three impounded. It was submitted that this, read along with the fact that there is no evidence to show from which pen drive the offending data was recovered should result in the evidence; regarding the pen drives as of no evidentiary value.
11.2 It was submitted that the examination of the pen drives should have been carried out in the presence of Sri Riyaz from whom the same was alleged to have been impounded. While no attempts were made to secure his presence, since the same constitutes recovery of materials from the possession of third parties, the assesses had requested for an opportunity to cross examine Sri Rivaz. The Assessing Authority had found the request reasonable and required to comply with principles of natural justice. Thereafter, summons was issued to Shri Riyaz who failed to turn up and no specific attempts were made to secure his attendance and 32 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 the assessees further understand that no action was taken against him for failure to comply with the terms of the summons. It was therefore submitted that denial of opportunity to cross examine Shri Riyaz especially in view of the several loose ends highlighted above, totally vitiated the use of the pen drives for assessment purposes. It was therefore submitted that non-examination of Shri Riyaz also made the pen drives inadmissible. It was submitted that the three pen drives were therefore liable to be eschewed from evidence.
11.3 The Ld. AR pleaded to admit the additional evidence, as these are very relevant to decide the issues in dispute. Further, it was submitted that due to non-
availability of the additional evidence on earlier occasion, it was now made available before the Tribunal and requested to admit the same.
12. We have heard the rival submissions and perused the record. In our opinion, the Tribunal has discretion to receive and adjudicate additional evidence even if it is not an arbitrary one but it is a judicial one circumscribed by the limitation specified under Rule 29 of the Act. The Tribunal has the power to allow additional evidence if it requires such evidence to enable to pass orders, i.e. to say, when it finds that there is any lacunae or defect which is to be filled up so as to render justice. The Tribunal has the power to allow additional evidence also if it requires such evidence for any other substantial cause, i.e. to say, even in cases where the Tribunal finds that it is able to pass orders on the state of the record as it is, it may still allow 33 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 additional evidence to be brought on record if it considers that in the interest of justice something which was obscure, should be filled up so that it can adjudicate the issue in a more specific manner. Such requirement in either case must be of the Tribunal and it will not arise ordinarily unless some inherent lacunae or defect becomes apparent on examination of the evidence and, therefore, the legitimate occasion to exercise discretion under Rule 29 is not before the appeal is heard but when on examination of the evidence, some lacunae or defect becomes apparent, such defect or lacunae may be pointed out by the party or the party may move the Tribunal to supply the defect and the Tribunal may itself act suo motu in the matter. So, discretion vested with the Tribunal has to be exercised in the interest of justice in the facts and circumstances of the case and not mechanically. However, it cannot be allowed if such evidence is raised for the first time before the Tribunal which may prejudice other party. The right to produce additional evidence fetters with restriction. Therefore, one has to establish why the assessee could not produce such evidence before the lower authorities. Therefore, admission of additional evidence depends upon the explanation given by the assessee for admission of such evidence. The assessee has to prove the bona fide reason of not producing such evidence on earlier occasion and it has to establish that such evidence was not available on earlier occasion and he has to produce such evidence, necessary to be admitted by the Tribunal for the first time so as to render justice. 34
I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 12.1 In the present case, the assessee had produced expert opinion of cyber expert with regard to generation of hash value report. The cyber expert is an outside agency. It is an opinion only and it cannot bind the Assessing Officer. This was procured by the assessee on 15/06/2019 after long period of filing the appeal before this Tribunal on 23/10/2018. The assessee was not able to discharge its bona fides in procuring that expert opinion. In our opinion, the assessee wants to derive benefit indirectly which cannot be done directly for which the Tribunal cannot be party. Further, the assessee herein, by way of additional evidence wants to change the complex and character of the case as originally brought out, which is not permissible at this stage. The assessee must prove beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence whatsoever. The sufficient cause in procuring the expert opinion from the cyber expert within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. In our opinion, in the present case, there is no sufficient cause to procure such cyber expert opinion after such a long period after survey in this case. The seeker of justice must come with clean hands and should prove that there was no negligence whether in action or want of bona fides. We find that in the affidavit, the assesses were not able to understand the significance of the hash value report. There was delay in procuring the expert opinion and it was procured with such a delay so as to delay the proceedings under the Act. More so, the affidavits filed by the assesses herein were self serving documents so as to derive undue benefit. We are not convinced with 35 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 the reason explained by the assessee in obtaining the cyber expert opinion after such a long period. Even if it is admitted as additional evidence, that cannot bind the Assessing Officer. The apprehension of the assesses is that the Department has tampered with the pen drives. In our opinion, pen drives were impounded by the Department during the course of survey u/s. 133A on 14/07/2014 in the office of Mr. Riyaz and the inventory report was prepared on 14/07/2014 and after such a long period of delay, the assessee is making this allegation that the pen drives are tampered which cannot be appreciated. The hash value report was generated on 22/07/2014 and 23/07/2014 which was duly witnessed by two local punchas and countersigned by the assesses as well as the forensic expert which means that the assesses were well aware of the generation of hash value report and the same was done in their presence. Hence, the additional evidence at this stage cannot be admitted as there was no sufficient cause in procuring such additional evidence. More so, if the assessees have doubted the integrity of the income tax officer concerned stating that they have tampered or manipulated the pen drives, in such circumstances, the assessees ought to have reported the matter to the higher authorities concerned so as to take appropriate action against the erred officer. Accordingly, the additional evidence is not admitted and these issues in all the appeals of the assesses are dismissed 36 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018
13. In the result, the appeals of the assesses are dismissed.
Order pronounced in the open Court on this 5th August, 2019 sd/- sd/-
(GEORGE GEORGE K.) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER Place: Kochi Dated: 5th August, 2019 GJ Copy to:
1. Hillwood Imports & ExportsPvt. Ltd., Chungam, Feroke, Kozhikode-673 631.
2. Hillwood Furniture Ltd. , Chungam, Feroke, Kozhikode-673 631.
3. Hillwood Timbers, Door No. XI/67C, Punarpa, Makkaraparambu, Malappuram-676 507.
4. The Deputy Commissioner of Income-tax, Central Circle-2, Kozhikode.
5. The Commissioner of Income-tax(Appeals)-III, Kochi,
6. The Commissioner of Income-tax, Central, Kochi.
7. D.R., I.T.A.T., Cochin Bench, Cochin.
8. Guard File.
By Order (ASSISTANT REGISTRAR) I.T.A.T., Cochin 37 I.T.A. Nos. 448-453/Coch/2018, 285-290/Coch/2018 & 446 &447/Coch/2018 38