2019 (8) TMI 1890 - AT - Income Tax

Survey proceedings u/s 133A - Authenticity of the data contained in the pendrive seized - cross examination before the AO not provided of Person from whom residence pen drive is claimed - HELD THAT - 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. Whether AO has gone wrong in accepting the pen drive as a piece of evidence and making substantial additions to the income returned? - 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) 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. Assessee had produced expert opinion of cyber expert with regard to generation of hash value report - Whether the additional grounds of appeals can be raised before the Tribunal which does not arise out of the order of the CIT(A)? - 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 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 AO. 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.

Summary

Issues Involved:
1. Validity of the assessment based on data retrieved from a pen drive.
2. Evidential value of the pen drive data.
3. Inclusion of stock transfer in sales turnover.
4. Denial of cross-examination of Mr. Riyaz.
5. Admission of additional grounds and evidence.

Detailed Analysis:

1. Validity of the Assessment Based on Data Retrieved from a Pen Drive:
The main contention was whether the data from the pen drive, recovered during a survey, could be used for computing the total income of the appellant. The pen drive was recovered from the residence of Mr. Riyaz, an employee of the assessee. The Tribunal upheld the use of the pen drive data, stating that under Section 2(12A) of the Income Tax Act, books of accounts include data stored in electronic forms. The Tribunal found no procedural or legal infirmity in the search and survey, confirming that the data belonged to the Hillwood Group and was correctly used for assessment.

2. Evidential Value of the Pen Drive Data:
The assessee argued that the pen drive lacked evidential value under the Evidence Act. The Tribunal dismissed this argument, affirming that the pen drive forms part of the books of accounts and can be used for framing assessments. The Tribunal also noted that the data integrity was ensured through forensic imaging and hash value reports, which were generated and provided to the assessee.

3. Inclusion of Stock Transfer in Sales Turnover:
The assessee contended that the Assessing Officer wrongly included stock transfers between sister concerns and branches in the sales turnover. The Tribunal upheld the inclusion, stating that the data from the pen drive, which was admitted to belong to the assessee, was correctly used for assessment purposes.

4. Denial of Cross-Examination of Mr. Riyaz:
The assessee argued that they were denied the opportunity to cross-examine Mr. Riyaz. The Tribunal noted that the statement of Mr. Riyaz was not used to compute the income; rather, it was the data from the pen drive. Hence, there was no necessity for cross-examination. The Tribunal found that the assessee was aware of the data and its implications, as evidenced by the statements made by the Managing Director.

5. Admission of Additional Grounds and Evidence:
The assessee sought to admit additional grounds related to the applicability of Sections 65A and 65B of the Evidence Act. The Tribunal dismissed the additional grounds, stating that the assessee failed to provide sufficient reasons for not raising these issues earlier. The Tribunal also rejected the additional evidence, including an expert opinion on the forensic examination of the pen drives, as it was procured after a significant delay and did not bind the Assessing Officer. The Tribunal emphasized that the integrity of the pen drives was secured through hash value reports generated in the presence of the assessee and witnesses.

Conclusion:
The Tribunal upheld the assessments based on the pen drive data, confirmed the inclusion of stock transfers in the sales turnover, and dismissed the additional grounds and evidence proposed by the assessee. The appeals were dismissed, affirming the legality and procedural correctness of the assessments conducted by the Assessing Officer.