MEENU GUPTA,MEERUT vs. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE, MEERUT

This appeal has been filed by the Assessee against the Order of the Ld. CIT(A)-3, Noida relating to assessment year 2021-22 on the following grounds:-

Brief facts of the case are that in this case search was conducted on 08.03.2022 and the case was taken up in the consequence to the search on account of some whatsapp chat found in the mobile phone of assessee’s son. The assessee is a proprietor of coal business in the name of Meenu Enterprises. The return was filed on 15.12.2021 with duly audited accounts at income at of Rs.7,66,410/- and assessment was completed vide order dated 02.12.2022 at Rs. 17,64,410/- and addition was made u/s. 69A of Rs. 9,98,000/- (Rs. 5,00,000/- + Rs. 4,98,000) on account of cash paid to Shiva Brick against cheque received as per the copy of account found in received whattsapp messages in the mobile of Rachit Gupta (Son of the assessee). In appeal, Ld. CIT(A) dismissed the appeal of the assessee. Against the above action, assessee is in appeal before us.

We have heard both the parties and perused the records. Ld. AR for the assessee submitted that there is no cash payment to Shiva Brick Field which is evident from the copy of ledger account from the audited books. The whatsapp message is only for the purpose of confirmation of account during the year in which the mistakes were pointed out and corrections made. It was the further contention that whatapp message relied upon is secondary evidence and the same is not admissible without complying with the certificate as per the conditions of section 65B(4) of the Indian Evidence At 1872 . There is no corroborative evidence of payment of cash or receipt of cash by the other party. The ledger account as per the whatspp is not 3 having any opening balance, whereas the copy of account as per the books is having a opening balance of Rs. 31,72,795/-. The confirmed copy of account is also obtained and filed by the Shiva Brick field with PAN number in which the alleged entries of cash are not there and the same has not been considered or confronted. It was further submitted that the sole photo seized from mobile phone, which is solely relied upon by the AO in making the addition, being digital record, cannot be admitted as evidence as the mandatory certificate/s 65B(4) of the Indian Evidence Act 1872 is not provided to the appellant rendering the said photo as non-est in the eye of law. In support of the aforesaid contention, Ld. AR has relied upon the various case laws wherein it has been held that whatsapp messages will be admissible or not and it was ultimately held that such a message would be inadmissible unless accompanies by a proper certificate as given under S. 65B of the Indian Evidence Act, 1872.

Ld. CIT(DR) relied upon the orders of the authorities below.

Upon careful consideration, we find that addition in this case was made u/s. 69A of Rs. 9,98,000/- on account of cash paid to Shiva Brick against cheque received as per the copy of account found in received whattsapp messages in the mobile of Rachit Gupta (Son of the assessee). In appeal, Ld. CIT(A) dismissed the appeal of the assessee. We find considerable cogency in the contention of the Ld. AR that there is no cash payment to Shiva Brick Field which is evident from the copy of ledger account from the audited books. However, the whatsapp message is only for the purpose of confirmation of account during the year. The whatapp message relied upon is secondary evidence and the same is not admissible 4 without complying with the certificate as per the conditions of section 65B(4) of the Indian Evidence At 1872. We do not find any corroborative evidence of payment of cash or receipt of cash by the other party. The ledger account as per the whatspp is not having any opening balance, whereas the copy of account as per the books is having a opening balance of Rs. 31,72,795/-. The confirmed copy of account is also obtained and filed by the Shiva Brick field with PAN number in which the alleged entries of cash are not there and the same has not been considered or confronted. The only photo seized from mobile phone, which is relied upon by the AO in making the addition in dispute, being digital record and cannot be admitted as evidence as the mandatory certificate/s 65B(4) of the Indian Evidence Act 1872 is not provided to the assessee rendering the said photo as non-est in the eye of law. This view has been fortified by the decision of the ITAT, Delhi in the case of Ritu Tuli Vs.DCIT dated 31.12.2024 wherein, it has been held that no addition for unexplained investment in property can be made under section 69B of the Act based on an illegible, unsigned copy of an image or photo extracted from the mobile phone of the searched person, in the absence of a certificate under Section 65B of the Indian Evidence Act, 1872. Further, in the case of M/s Monica Kamarpal Banda vs. ACIT Central-2, ITAT, Mumbai in dated 7.8.2023 has observed that the addition was deleted and order was set aside as Electronic Evidence collected by Revenue was without compliance of Section 65B. We further find that Hon’ble Jurisdictional High Court in the case of Dell