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TMI Blog2025 (5) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... 1261 /2021 Vetrivel minerals AAHFV- 2400N Assessment order dated 24.06.2021 and consequential rectification order dated 01.07.2021 2013-14 to 2019-20 154 1 2. 120 /2022 11271 /2021 Vijay AAAFV- 1631J Assessment order dated 16.06.2021 2017-18 153A 3. 121 /2022 11272 /2021 Vijay AAAFV- 1631] Assessment order dated 16.06.2021 2018-19 153A 4. 122 /2022 11273 /2021 Vijay AAAFV- 1631J Assessment order dated 16.06.2021 2019-20 143(3) 5. 123 /2022 11765 /2021 Vetrivel minerals AAHFV- 2400N Assessment order dated 24.06.2021. Assessment order dated 24.06.2021 and consequential rectification order dated 01.07.2021 2013-14 to 2017 - 18 & 2019-20 2.Following the search conducted on the writ petitioners' premises and that of others on 25.10.2018 and other days, order under Section 127 of the Income Tax Act, 1961 was passed directing transfer of the cases set out in the schedule annexed to the order to DCIT, Central Circle-2, Madurai. Questioning the said move, WP(MD)No.16869 of 2019 was filed by M/s.V.V.Minerals. It was dismissed on 28.02.2020. WA(MD)No.417 of 2020 questioning the dismissal order dated 28.02.2020 was also dismissed. SLP filed against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, certain directions were also issued to guide the assessing officer as to how he should conduct the post-remand assessment proceedings. Para 26 of the order of the learned Single Judge reads as follows : "26.As far as WP(MD)No.11765 of 2021, is concerned, it is said to be filed only to overcome the technical objection raised by the respondent and not challenging the assessment orders separately. Therefore, the assessment orders impugned in the present writ petitions are set aside and the matter is remanded back to the respondent assessing officer for denova assessment and while doing so, the respondent officer shall, a) afford an opportunity of cross examination of the persons whose statements are relied upon by the respondent for making additions or disallowance; b) give the details of all the seized materials including the place of seizure and give copies of seized material demanded by the petitioners. In case, the department thinks that the seized materials sought for by the petitioners does not belong to the petitioners or the petitioners' group, communicate the same to the petitioners and in such event, in the assessment orders that framed either on the concerns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals). The Hon'ble Supreme Court of India in the decision reported in (2014) 1 SCC 603 (Commissioner of Income Tax v. Chhabil Dass Agarwal) held that when the Income Tax Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the revenue authorities, the assessee could not be permitted to abandon the machinery and invoke the writ jurisdiction when he had adequate remedy open to him by way of an appeal to the Commissioner of Income Tax (Appeals). 8.We propose to non-suit the writ petitioners by upholding the objection of the standing counsel on the anvil of Chhabil Dass Agarwal. We are conscious of the withering criticism made in Kanga & Palkhivala's The Law and Practice of Income Tax (11th Edition) by the eminent lawyer Shri Arvind P Datar. The learned author at Page 16 has remarked thus : "There is an increasing and regrettable reluctance on the part of the High Courts to interfere under art 226 even where the assessments are sought to be reopened completely without any jurisdiction. The case that is often relied on is CIT v Chhabil Dass Agarwal, where the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions by the Supreme Court even in matters arising under other statutes. 9.It is true that exceptions have been carved out in Chhabil Dass Agarwal for by-passing the alternative remedy. When an order has been passed in total violation of the principles of natural justice, the assessee can, no doubt, seek writ remedy. According to the learned Senior Counsel appearing for the assessee, the case on hand would fall under the said exceptional category. We are of the view that even in such cases, it would still be a question of discretion to be exercised by the writ court. 10.In other words, even if the writ petitioner demonstrates that the case on hand falls under the exceptions carved out in Chabbil Dass Agarwal, still the writ court has to apply its mind and judiciously exercise its discretion as to whether the appeal remedy can be by passed. There cannot be any automatic admission or entertaining of writ petitions even in such cases. It would always be possible to point out some breach of procedure or violation of principles of natural justice by the authority concerned. The writ court should not readily latch on to that argument to facilitate by-passing the statutory remedy. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajan made such a request. Since Thiru.Jegadeesan is also a partner, his request must be taken as request made on behalf of the firm. This contention is no doubt attractive. The fact remains that before us V.V.Minerals and Vijay Cements, the firms in question, are represented by Thiru.Vaikundarajan and his son Velmurugan respectively. When the persons before this Court had not made a request for cross-examination, we are of the view that this could not have been the ground for by-passing the appeal remedy. However, we would permit this point to be urged before the appellate authority. 13.The learned Single Judge had concluded that Section 65B of the Indian Evidence Act, 1872 would strictly apply to the impugned assessment proceedings. Sections 65A and 65B of the Indian Evidence Act (corresponding to Sections 62 and 63 respectively of Bharatiya Sakshya Adhiniyam, 2023) is as follows : "65A. Special provisions as to evidence relating to electronic record. --The contents of electronic records may be proved in accordance with the provisions of section 65B. 65B. Admissibility of electronic records. -- (1) Notwithstanding anything contained in this Act, any information contained in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stating it in the certificate specified in the Schedule. Thus, under the new law of evidence, expert's certificate is also made mandatory. This is an extra requirement. We may now examine if the statutory requirement set out in the Evidence Act (now BSA) must be fulfilled before the assessing authority would receive the electronic record as evidence in the assessment proceedings. Our answer is in the negative. We hold that Section 65B of the Evidence Act, 1872 as well as Section 63 of Bharatiya Sakshya Adhiniyam, 2023 are inapplicable to the assessment proceedings before the assessing officer/appellate authority/tribunal. 14.In the decision reported in AIR 1967 SC 768 (CIT vs. East Coast Commercial Company), the Hon'ble Supreme Court was concerned with the admissibility of the report of the Income Tax Investigation Commission since certain provisions of the Taxation of Income (Investigation Commission) Act relating to the inquiries to be held were declared to be ultra vires. While holding that the report of the commission had evidentiary value and could be taken into account, the Hon'ble Supreme Court held that the Income Tax authorities are not strictly bound by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd uphold the view taken in WP No.11630 of 2023. 15.We however clarify that it is open to the assessee to challenge the genuineness of the material relied on by the department. But the non-furnishing of the certificate under Section 65B cannot be used as a shield to resist the reception of the electronic record. This is for the simple reason that the assessment proceedings are not judicial proceedings and the technical rules of the Evidence Act are inapplicable to them. There is yet another reason. The adverse materials have been seized from the electronic systems and instruments maintained by the assessee's/their employees. It would be too much to expect them to issue certificates in favour of the department which would use the material against them. 16.We came across the Digital Evidence Investigation Manual 2014 issued by the Central Board of Direct Taxes in which it has been mentioned that since Section 65A and 65B of the Indian Evidence Act govern the integrity of the electronic record, while handling any digital evidence, the procedure has to be in consonance with the said provisions. We are however of the view that the contents of a manual cannot have any statutory value o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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