ITO, WARD-2(1), LUDHIANA, LUDHIANA vs. ASHWANI KUMAR JAIN, LUDIHANA

There is no import/export licence issued in the name of the assessee to do any kind of import i.e. the assessee has not made any kind of import against which any payment is required to be made. The assessee further contended that he A.Y.2022-23 4 be permitted to cross examine Shri Manoj Kumar Gupta because meanwhile Shri Manoj Kumar Gupta has filed his affidavit and retracted his statement made before the DDIT.

He did not support the case of the Revenue against the assessee. Relevant part of the affidavit of Shri Manoj Kumar Gupta is being reproduced by the AO on page 10. The AO did not grant any opportunity to cross-examine Shri Manoj Kumar Gupta. However, ld. AO has made addition under Section 69C of the Income Tax Act by observing as under : “3.4 The reply of the assessee is not acceptable in view of the reason that as per incriminating material in the form of digital mode and statement of Shri. Manoj Kumar Gupta who has confirmed that he has received Rs. 2,69,86,600/- from the assessee towards unaccounted cash vide his reply to Question No. 29 and the assessee's name is appearing in serial No.

“I have carefully pursued the submissions of the appellant placed on record as well as the copies of returns filed by the appellant and its nature of business and found that the appellant has not made any import during the year under consideration. I have also verified that the appellant does not hold any I EC number for making imports and has not in any way made any transactions which purported to be treated as import. Besides, I have perused the retractment of statement along with the affidavit filed by the Shri Manoj Kumar Gupta. On analysis of the same, Mr. Gupta has clearly stated that he has not made any business transaction or any cash transaction with the appellant during the year under consideration. I have observed that the reasons for making basis in the instant case of the appellant originated from the statement made by Shri Manoj Kumar Gupta against the appellant and a screenshot of the WhatsApp chat found in his mobile phone during the course of course of search 7 seizure in the premises of a third party. But, in contrast, the statement is now retracted by Shri Gupta himself, excluding the appellant's name, then the addition made on the basis of statement of Shri Gupta is found to be questionable and requires further analysis. The Supreme Court in Vinod Solanki vs. Union of India [2009] 233 CTR 272 (SC) held that a retracted statement must be corroborated by independent evidence before it can be relied upon. In this case, the AO failed to provide such corroboration. Therefore, the retracted statement cannot be the basis for any addition. I have also noted that the appellant has asked for opportunity for cross examination of Shri Gupta during the course of assessment proceedings but the AO had not provided such opportunity to the appellant. The AO's reliance on the statement of Shri Manoj Kumar Gupta without affording the appellant an opportunity for cross-examination is a clear violation of the principles of natural justice. The Supreme Court in Andaman Timber Industries vs. CCE [2015] has emphasized that the denial of cross-examination amounts to a denial of a fair hearing, rendering the evidence inadmissible. The statement made by Shri Manoj Kumar Gupta, which was retracted later, is uncorroborated by any direct evidence linking the appellant to the alleged transactions. The appellant was denied the opportunity to challenge this statement through cross-examination, which is a significant procedural lapse on the part of the AO. A.Y.2022-23 6 Further, it is also noted that the provisions of section 69C of the Income Tax Act, 1961 is not mandatory but discretionary in nature and dependent upon case to case and the prime condition for application of this section is the term "expenditure" should be incurred for invoking the provisions of this section. In absence of expenditure, the AO cannot invoke the provisions of Section 69C of the Income Tax Act, 1961. It is a well-established principle that any rejection of evidence must be accompanied by a reasoned order. The Hon'ble Supreme Court has held in CIT vs. Mahindra & Mahindra Ltd. [2018] 404 ITR 1 (SC) that orders lacking cogent reasoning are liable to be set aside. In this case, the AO's failure to explain the grounds for rejecting the appellant's evidence indicates a lack of application of mind and procedural fairness. The evidence provided by the appellant, including the retraction of the third-party statement and the financial documents, was directly relevant to rebutting the AO's claims. The AO's arbitrary dismissal of this evidence without proper consideration or justification constitutes a significant procedural defect. Besides, I have also verified the bank account statements and income tax returns of the appellant and found that the appellant has not made any expenditure or claimed any expenditure during the year under consideration which remained unaccounted or unexplained. The appellant argued that no such expenditure was incurred during the relevant assessment year. The appellant provided documentary evidence showing that no foreign remittances were made, and there were no transactions that could be classified as unexplained expenditure under Section 69C of the Income Tax Act, 1961. Section 69C of the Income Tax Act, 1961 applies when an assessee incurs an expenditure and fails to explain the source of such expenditure satisfactorily. In this case, the appellant has consistently maintained that no such expenditure was incurred. The AO failed to demonstrate that the alleged expenditure was actually incurred by the appellant. The Bombay High Court in CIT vs. Amitabh Bachchan [2019] held that the burden of proof lies with the AO to establish that the expenditure was indeed incurred and that it was unexplained. In the present case, the AO did not provide any credible evidence to meet this burden. The AO rejected the explanations and documentary evidence provided by the appellant without offering a valid rationale. This includes the affidavit from Shri Manoj Kumar Gupta retracting his earlier statement, as well as bank statements and financial records that contradict the AO's findings. The AO rejected the explanations and documentary evidence provided by the appellant without offering a valid rationale that contradict the AO's findings. The AO's rejection of the detailed explanations and evidence provided by the appellant was arbitrary and lacked proper reasoning. The addition made on this basis is unsustainable and is hereby deleted. The ground is allowed, as the AO failed to establish that the expenditure was incurred and unexplained. A.Y.2022-23 7 Grounds No. 7 to 12 :

These grounds pertain to the contention of the appellant that the AO has erred in making addition on the basis of WhatsApp chat found during the course of search proceedings in the case of Sh. Manoj Kumar Gupta.

The appellant has made the following rebuttals against the addition made in the case of appellant by taking the basis of WhatsApp found in the mobile phone of Shri Manoj Kumar Gupta.

No details of conversion of currency are mentioned and how the same were linked with foreign remittance was not known to the assessee.

WhatsApp chat only shows the 25pse, the meaning of which is not explained by the Sh. Manoj Kumar Gupta and no link/nexus between the amounts mentioned and the addition so made. There is no clear meaning/derivation of 25pse was given in the statement of Sh. Manoj Kumar Gupta. Also, in the WhatsApp chat, no information is conveyed w.r.t. transfer of funds to foreign entities No account number of foreign entities is mentioned in the assessment order that proves that the assessee has not made any transfer.

No mention of the assessee's name/date/payment details.

It is nowhere mentioned that the cash has been received. In other words, no chat pertaining to receiving of cash is mentioned in the above chat which proves that the transaction has never been made.

The bank transfer UTR/transaction number or any kind of evidence which shows the success of the transaction is not mentioned in the WhatsApp chat which shows that no transaction has ever been done by the assessee.

The appellant submitted that the WhatsApp chat appears to be normal conversation between the two persons, the meaning of which is not clear and by any stretch of imagination, the same cannot be treated as foreign remittance made by the assessee. In absence of any transaction confirmation/success details/transaction number, the same cannot be said to be a successful transfer and cannot be treated to be done without the fulfilling the pre-conditions of the transfer. The appellant also highlighted the fact that there exists no evidentiary value of the WhatsApp chat submitted by Sh. Manoj Kumar Gupta exists as no legal validity of an electronic evidence under the provisions contained in the evidence act and A.Y.2022-23 8 linked the case of the appellant with the provisions of section 65B of the Evidence Act. The whole contention of the appellant in these grounds states that WhatsApp messages cannot be considered as conclusive evidence to draw an adverse inference against the assessee, unless those WhatsApp messages are supported by corroborative evidences to indicate that those messages and contents represents undisclosed income of the assessee. Further, what is written in WhatsApp message is not readable in terms of any income or expenditure. That the WhatsApp messages as mentioned in the assessment order is not conclusive or does not establish any link with alleged escapement/concealment of income by the assessee. Further, the appellant contended that the AO has not brought on record any evidences as to utility of such amount nor any other corroborative evidence to support the findings. Such evidences (Messages) without any supporting/corroborative along with admission of third person cannot be, basis for the AO to come to conclusion and make addition to his total income. The appellant further contended that the AO had relied upon the WhatsApp messages sent from the mobile phone of Sh. Manoj Kumar Gupta but he has given his own assumptions in respect of those messages. In the process, the AO neither tested the admissibility of WhatsApp messages as evidence u/s 69B of Evidence Act; nor examined the appellant being the recipient of messages sent by the Shri Manoj Kumar Gupta. The appellant further substantiated his contention by relying on the various judgements of the Hon'ble Courts that the WhatsApp chats are not admissible as evidence in absence of any corroborative link or evidence. The AO placed significant reliance on WhatsApp chats allegedly retrieved from the mobile phone of a third party, Shri Manoj Kumar Gupta, as evidence of the alleged unexplained expenditure by the appellant. The appellant challenges the validity and reliability of using such chats as the basis for the addition under Section 69C of the Income Tax Act, 1961. Legal principle of WhatsApp chat by their nature, are digital communications that can be easily manipulated, edited, or taken out of context. The law requires that any evidence relied upon by the tax authorities must be credible, reliable, and corroborated by independent sources. In Dilip Kumar P. Chheda vs. ITO [2021] 125 taxmann.com 187 (Bombay), the Bombay High Court held that uncorroborated WhatsApp chats cannot be used as the sole basis for making an addition. The Court emphasized the necessity of supporting such digital evidence with independent, corroborative material. The WhatsApp chats cited by the AO are inherently unreliable due to their susceptibility to alteration and the lack of corroborative evidence. The chats, without more, cannot establish the veracity of the alleged transactions or justify the addition made under Section 69C. A.Y.2022-23 9 I have carefully perused the submissions of the appellant as well the copy of screenshot of WhatsApp chat provided by the AO in his order. On analysis of the same, I have found that the WhatsApp chat can only be treated as evidence if it contains a live link with any corroborative evidence without which, the same is baseless in reaching a conclusion. I have also observed that the principles of natural justice require that the assessee be given an opportunity to cross-examine any witness whose statements or evidence are being used against them. This ensures that the evidence is subject to scrutiny and that any inaccuracies or inconsistencies can be challenged. In Andaman Timber Industries vs. CCE [2015] 62 taxmann.com 3 (SC), the Supreme Court held that the denial of cross-examination is a violation of natural justice and renders the evidence inadmissible. If WhatsApp chats are to be relied upon, the individuals involved1 in those chats must be made available for cross-examination. I have noted that the AO did not provide the appellant with an opportunity to cross- examine the individuals involved in the WhatsApp chats. This omission undermines the reliability of the evidence and violates the appellant's right to a fair hearing. For any piece of evidence to be considered credible, it must be clear, contextual, and verifiable. WhatsApp chats, without context or supporting documentation, can be misleading or ambiguous. The burden of proof lies with the tax authorities to establish that the chats are directly related to the alleged transactions and are not taken out of context. The AO failed to provide any verification or contextual background for the WhatsApp chats. There is no evidence that the chats pertain to actual financial transactions or that they involve the appellant directly. Without such verification, the chats cannot be relied upon as evidence of unexplained expenditure. Digital evidence, such as WhatsApp chats, must be authenticated and verified before it can be admitted as evidence in any legal proceeding. This Involves proving the authenticity of the source, the integrity of the data, and the relevance of the content. In Anvar P.V. vs. P.K. Basheer [2014] 10 SCC 473, the Hon'ble Supreme Court of India held that electronic evidence must meet the requirements of the Indian Evidence Act, including proper ceri\fication under Section 65B, before it can be considered admissible. The VMhatsApp chats in question have not been authenticated or certified under Section 65B of the Indian Evidence Act. Therefore, they do not meet the legal standards for admissibility as evidence, and the AO's reliance on them is misplaced. Even if VMhatsApp chats were to be considered as evidence, they must be corroborated by other independent and credible evidence. Digital communications alone, especially when unverified, cannot form the sole basis for a serious financial allegation such as unexplained expenditure. The Bombay High Court in Dilip Kumar P. Chheda vs. ITO emphasized that WnatsApp chats must be supported by other substantive evidence to establish a case for addition under the Income lax Act. In the absence of any corroborative evidence, such as bank statements, transaction records, or other documentary proof, the VMhatsApp chats cannot be used to justify the addition under Section 69C. The AO's reliance on these chats, without more, is legally and factually unsound. A.Y.2022-23 10 Given the lack of verification, context, and corroboration, the reliance on WhatsApp chats as evidence in this case is fundamentally flawed. The assessee should be granted relief on this ground, as the addition under Section 69C based on such unreliable and unverified digital evidence is unjustifiable. The WhatsApp chats do not meet the legal standards for admissibility and should not be used as the basis for any addition to the assessee's income. In view of the factual matrix of the case at hand, the judicial precedents cited above and the discussion above, these grounds of appeal adduced by the appellant are upheld stands disposed off accordingly. Ground no. 13: Interest under section 234B and 234C Ground no. 13 relates to the interest levied upon the appellant under section 234B and 234C of the IT. Act. Since, the main addition stands deleted and this ground is consequential in nature, it is not adjudicated upon. For statistical purpose, the appeal is partly allowed.

6. In the result, the appeal is partly allowed. In the result, the appeal is decided as above.

7. This order has been passed under Section 250 read with Section 251 of the Income Tax Act, 1961.”

6. Before us, ld. DR relied upon the assessment order.

7. On the other hand ld. Counsel for the assessee relied upon the order of the CIT(A). He further submitted that the only evidence possessed by the Revenue is the statement of Shri Manoj Kumar Gupta which was retracted by him. The AO did not provide an opportunity to cross-examine Shri Manoj Kumar Gupta. Since the statement was recorded from the back of the assessee and unless the witness was put under cross-examination, his evidence cannot be relied upon. For buttressing his contention, he relied upon judgement of Hon'ble Supreme Court in the case of Andeman A.Y.2022-23 11 Timber Industries Vs CCE reported in 62 taxmann.com 3. He further submitted that similar issue was examined by the Hon'ble Bombay High Court in the case of Dilip Kumar Chheda Vs ITO 125 taxmann.com 187 wherein Hon'ble Bombay High Court has held that in the absence of cross- examination of the witness, his statement will be excluded from consideration. The ld. Counsel for the assessee further submitted that ld. First Appellate Authority has made reference to the judgement of Hon'ble Supreme Court in the case of Anvar P.V. Vs P.K. Basheer [2014] 10 SCC 473. It was held that electronic evidence must meet the requirement of Indian Evidence Act including proper certification under Section 65B of the Indian Evidence Act.

Therefore, we find that the only evidence possessed by the Revenue against the assessee is the alleged disclosure by Shri Manoj Kumar Gupta in a statement recorded by the DDIT (Investigation). The AO thereafter did not conduct any further investigation. It is a statement made by a third person. It cannot bind the assessee unless opportunity to cross-examination is being given. Hon'ble Supreme Court in the case of Andaman Timber Industries Vs CCE in Civil Appeal No.4228 of 2006 dated 02.09.2015 has made following observation: .. " According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the A.Y.2022-23 13 statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable."

8. The Hon'ble jurisdictional High Court in the case of PCIT Vs DSG Papers (P) Ltd. reported in 161 taxmann.com 586

(2024) has observed that addition on the statement of a third party cannot be made unless opportunity to cross- examination was given. The Tribunal has rightly deleted the addition. There are other Hon'ble High Courts who adopted unanimous approach in propounding the position of law that without giving opportunity of hearing to an assessee and cross-examination of a witness, such statement could not be relied upon. The assessee has submitted that he has neither exported nor imported any item. If some remittance was made, then who is the recipient. It should have been ascertained by the AO from banking documentation of Shri Manoj Kumar Gupta. Section 69C of the Income Tax Act would contemplate that wherein in any Financial Year, an assessee has incurred any expenditure and offers no explanation about the source of such expenditure, or part A.Y.2022-23 14 thereof or the explanation, if any, offered by him is not in the opinion of the AO satisfactory, then the amount covered by such expenditure or part thereof, as the case may be, may be deemed to be the income of the assessee for such Financial Year. Thus, it is for the Revenue to first demonstrate which expenditure has been incurred by the assessee. The AO has miserably failed to prove that expenditure. The alleged retracted statement of Shri Manoj Kumar Gupta is concerned, it is not worthy of credence.

There should have been some more corroborative evidence.

He should have been put under cross-examination, only them some inference could have been drawn, but no such exercise has been made by the AO. Therefore, we are of the view that ld. CIT(A) has rightly deleted the addition. No interference is called for.