HIMALYAN PLY BOARDS vs. JOINT COMMISSIONER OF INCOME TAX-YAMUNA NAGAR AND ANR.

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CWP/20900/2016HC Punjab & HaryanaPHHC01086123201609 December 2016Bench: MR. JUSTICE M.M. AGGARWAL,MR. JUSTICE AVNEESH JHINGAN4 pages
AI SummaryRemanded

What did the High Court hold?

The High Court disposed of the petitions by issuing directions. It directed the respondents to forward the note books and corresponding statements to any Government/Government-approved FSL to determine if the entries were made at the same time or different times, and if they were made on the same day as the statements prepared and signed by the petitioners during the survey. The FSL was to submit its report to the respondents, who would furnish a copy to the petitioners. The parties were at liberty to accept or challenge the report. The framing of the assessment was stayed until the receipt of the FSL report and for 10 weeks thereafter. Immediately upon receipt of the report by both parties, the assessment could continue. The costs of the FSL were to be borne by the petitioners. The petitioners also agreed not to raise any contention on the question of limitation until the expiry of the 10-week period, even if the assessment order was made thereafter.

What were the facts?

The petitioners, M/s JMD Plytech, M/s Himalyan Ply Boards, and M/s Assam Wood & Allied Products, filed writ petitions before the High Court of Punjab and Haryana at Chandigarh. They challenged the respondents' refusal to forward note books impounded during a survey under Section 133A of the Income Tax Act, 1961, to a Forensic Science Laboratory (FSL). The petitioners sought an FSL opinion on whether entries in the note books were made on the same day, not day-to-day, and if they were made on the same day as their statements recorded during the survey. The petitioners contended they were compelled to make entries and sign statements on the same day.

What were the issues?

1. Whether the respondents ought to have forwarded the impounded note books to a Forensic Science Laboratory (FSL) for an opinion on whether all entries were made on the same day and not on a day-to-day basis, and whether these entries were made on the same day as the petitioners' statements recorded during the survey under Section 133A of the Income Tax Act, 1961 (mixed question of law and fact). Assessee's contention: The petitioners argued that the FSL examination was crucial to establish their claim that they were compelled to make entries and sign statements on the same day. They were willing to have any government/government-approved FSL examine the evidence and were amenable to the department forwarding the material to such an FSL. Revenue's contention: The respondents contended that while the entries could have been written at the same time, this did not necessarily mean they were made without interference by the authorities. They suggested the entries could be a consolidated record of earlier loose sheets. The respondents initially refused to forward the documents to the FSL.

Which sections of the Income-tax Act were involved?

Section 133A

AI-generated summary — verify with the full judgment below

CWP-20881-2016 [ 1 ] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Sr. No. 203 (3 cases)

CWP-20881-2016

Decided on : 09.12.2016 M/s JMD Plytech, Jagadhri ..... Petitioner

VERSUS Joint Commissioner of Income Tax, Yamuna Nagar and another ..... Respondents 2. CWP-20900-2016

M/s Himalyan Ply Boards, Jagadhri ..... Petitioner

VERSUS Joint Commissioner of Income Tax, Yamuna Nagar and another ..... Respondents 3. CWP-20945-2016

M/s Assam Wood & Allied Products, Jagadhri ..... Petitioner

VERSUS Joint Commissioner of Income Tax, Yamuna Nagar and another ..... Respondents CORAM: HON'BLE MR. JUSTICE S.J. VAZIFDAR, CHIEF JUSTICE HON'BLE MR. JUSTICE DEEPAK SIBAL Present: Mr.N.P.S.Sahni, Advocate, for the petitioner(s). Mr.Yogesh Putney, Advocate, for the respondents.

******* S.J.VAZIFDAR, CHIEF JUSTICE (ORAL) The petitioners in each of these petitions have challenged the respondents' refusal to forward the note books impounded by them during the course of a survey under Section 133A of the Income Tax Act, 1961 to a Shamsher Singh 2016.12.12 13:00 I attest to the accuracy and authenticity of this document Chandigarh

CWP-20881-2016 [ 2 ] Forensic Science Laboratory (FSL) for the purpose of giving an opinion on two issues namely whether all the entries in each of the note books were made on the same day and not on a day to day basis and whether the entries in each of the note books were made on the same day on which the statement(s) of each of the petitioners were recorded during the course of the said survey. 2. The petitioners' case is that they were compelled to make the entries in each of the note books by the authorities as well as to prepare and sign the said statements on the same day. The two questions sought to be referred to the FSL are certainly relevant although they may well not be conclusive of the petitioners' contentions. For instance, as contended by the respondents, they could have been written at the same time but earlier and without any interference by the authorities. In other words, the entries in the note books could be a consolidated record prepared simultaneously of the loose sheets maintained earlier. It is neither necessary nor proper for us to express any view in this regard. The ends of justice require that the petitioners ought to have an opportunity of establishing this fact whatever be the inference that may be drawn on the basis of the report. 3. The learned counsel appearing on behalf of the petitioners makes a statement on behalf of each of the petitioners that they are willing to have any Government/Government-approved FSL examine this evidence and to submit a report on the two issues mentioned above. He further states that they are willing to leave it to the department itself to forward the same to any Government/Government-approved FSL. 4. In these circumstances, each of the petitions is disposed of by the following directions: - Shamsher Singh 2016.12.12 13:00 I attest to the accuracy and authenticity of this document Chandigarh

CWP-20881-2016 [ 3 ] (i) The note books and the corresponding statement(s) in each of the cases shall be forwarded by the respondents to any Government/Government-approved FSL for the purpose of determining whether the entries in each of the note books were made at the same time or whether they were made at different times and whether the entries in each of the note books were made on the same day as the corresponding statement(s) prepared and signed by the respective petitioners during the course of the survey. The FSL shall forward the report to the respondents who shall furnish a copy thereof to the petitioners. Needless to add that the parties are always at liberty to either accept or challenge the report(s) or any part or aspect thereof. (ii) The framing of the assessment shall remain stayed upto the receipt of the FSL report by the respondents and for a period of 10 weeks thereafter. However, immediately upon the receipt of the report by the petitioners and the respondents the assessment may continue. (iii) The costs of the FSL shall be paid by the petitioners in each of the cases as demanded by the FSL or the respondents. 5. The learned counsel for the petitioners has no objection to the above order. To leave no room for doubt, he states that the petitioners will not in any event raise any contention on the question of limitation till the expiry of the aforesaid period of 10 weeks. He further states that the issue of limitation will not be raised by any of the petitioners even if the Shamsher Singh 2016.12.12 13:00 I attest to the accuracy and authenticity of this document Chandigarh

CWP-20881-2016 [ 4 ] assessment order is made after the aforesaid period of 10 weeks. A photocopy of this order be placed on the files of connected cases.

[ S.J. VAZIFDAR ] CHIEF JUSTICE 09.12.2016

[ DEEPAK SIBAL ] shamsher JUDGE Whether reasoned/speaking : Yes / No Whether reportable : Yes / No Shamsher Singh 2016.12.12 13:00 I attest to the accuracy and authenticity of this document Chandigarh

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