Indian Kanoon - Search engine for Indian Law

1.18. The bank statement cited as evidence was purportedly provided to the Income-tax Department in the form of a pen drive by the French tax Authorities in terms of India-France DTAA. However, no certificate under section 65B(4) of the Indian Evidence Act, 1872 has been brought on record in relation to the contents of the said pen drive. Thus, the primary records basis which the evidence is sought to be adduced is not certified in terms of section 65B of the Indian Evidence Act, 1872.

1.19. Further, the condition stated in section 65B(2)(d) of the Indian Evidence Act, 1872 postulates that information contained in electronic record is derived from information fed into the computer. Thus, the certificate issued under section 65B(4) should have certified the information in question i.e. the alleged bank statement and not the contents of the pen drive. Thus, there is a complete failure to comply with elementary principles of section 65B of the Indian Evidence Act, 1872.

1.20. Accordingly, the conditions mentioned under section 65B(2) of the Indian Evidence Act, 1872 have not been followed and therefore, the Certificate produced under section 65B of the Indian Evidence Act, 1872 is not valid/relevant.

1.21. Further, the Certificate was issued on 20.11.2015 which is years after the day on which the alleged pen drive was received by the Indian tax authorities i.e., 28.06.2011 and even beyond the date of passing of assessment order for AY 2006-07 i.e., 27.02.2015. It is also signed by an Under Secretary functioning as such on that date. This is way short of the requirements of Section 65B. Hence, the alleged bank statement can't be relied on to complete the assessment.

46. After considering the decisions of the Hon'ble Supreme Court in the case of Anvar P.V (supra); Arjun Pandit Rao Khotkar (supra) and the judgment of the Hon'ble Madras High Court in the case of Vetrivel Mineral (supra) as well as on perusal of the facts and circumstances of the case, we are of the considered we that the four conditions stipulated in section 65B(2) i.e., (a) to (d) along with section 65B(4) were not followed while obtaining the Certificate u/s. 65B of the Indian Evidence Act 1872 in the case of the assessee which are to be followed mandatorily. Therefore, we Page | 15 ITA Nos.6743 & 6744/Del/2017 & 3623 to 3627/DEL/2016 And ITA Nos. 6767 ,6769,7756 to 7759,7760/Del/2017 Rajinder Kumar have no hesitation to hold that this Certificate is not a valid Certificate as prescribed under the Indian Evidence Act 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.

a. Anvar P.V Versus P. K. Basheer and others (supra), we observed that the Hon'ble Supreme Court held that the evidence collected thru Police and Election commission are used as primary evidence, these evidences cannot be admitted since the mandatory requirements of section 65B of the Evidence Act are not satisfied. In the given case, the facts are different considering the fact that Page | 30 ITA Nos.6743 & 6744/Del/2017 & 3623 to 3627/DEL/2016 And ITA Nos. 6767 ,6769,7756 to 7759,7760/Del/2017 Rajinder Kumar the information are received thru the FT&TR Division and these evidences are forwarded to the respective officers to make the investigations, normally the informations may not contain basic informations or may contain certain information relating to the alleged assessees, upon investigations, the informations used to corroborate with the information collected from the respective assessees. In the given case, the contents of the information are complete and the assessee has accepted the same upon investigation and not preferred to retract the same before any authorities. At this stage, contesting the same is not appropriate. In our view, the Evidence Act is applicable based on the evidential value of the same and it is known fact that it is not applicable in the income tax proceedings. Therefore, in our view the facts in the above case are distinguishable to the facts in the present case. b. Arjun Pandit Rao Khotkar Vs. Kailash Kushanrao Gorantyal (supra), in this case also, the findings in the Anvar P.V supra was relied and held that admissibility of electronic evidence is based on the drill of section 65B of the Evidence Act. Since we have already held that the above case is distinguishable to the present case, therefore, there is no need to rely on the above case. c. The other case law relied by the assessee's counsel are on the same line and therefore all these are distinguishable to the facts in the present case and we already discussed the issue in the above paragraphs. Therefore, we dismiss the submissions of the Ld AR.