TaxTMI 
TaxTMI 
TaxTMI 
2025 (3) TMI 1543
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.... corroborative evidence has been recovered from the Whatsapp conversation of Shri Shailendra Rathi with Shri Nilesh Toshniwal wherein it has been clearly seen that substantial payments have been received by the assessee?" Ground ii. "Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in deleting the addition made u/s 69A of Rs.12,66,12,150/- without appreciating the fact that Shri Shailendra Rathi had identified the transactions mentioned in the seized image and had identified the assessee as Shri Dinesh Baheti". 3. Exactly, similar grounds have been raised in A.Y.2021-22 and A.Y. 2022-23 wherein the Revenue has challenged deletion on addition of Rs.87,86,000/- in A.Y.2021-22 and Rs.7,85,86,000/- and Rs.1,90,00,000/- in A.Y.2022-23. All these additions have been made on the basis of some Whatsapp conversation between Shri Shailendra Rathi found from his I-Phone with Shri Nilesh Toshniwal and nothing has been found from Whatsapp conversation or from mobile phone of assessee. For the sake of ready reference, appeal for the A.Y.2021-22 is being taken up first. 4. The brief facts are that assessee is an individual engaged in t....
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....Shri Shailendra Rathi and Shri Kiran Rathod. It shows that there was a cash payment made to the assessee. The seized document in the form of Whatsapp chat showed that assessee has received an amount of Rs.12,66,12,150/- which has been added by the ld. AO u/s.69A in various years. The ld. AO has also reproduced certain extracts of statement of Shri Shailendra Rathi. 5. The ld. AO rejected the entire explanation and the submissions of the assessee and same is not acceptable for the following reasons after observing and holding as under:- (1) The image recovered from the i-phone of Shri Shailendra Rathi clearly mentions the date wise amounts paid to Shri Dinesh Behati. Further Shri Shailendra Rathi and Shri Dinesh Behati are known to each other and this fact has been admitted by the assessee in his statement recorded during the course of search Further Shri Shailendra Rathi also explained that in the out column of seized image, the money in cash had been sent to Shri Dinesh Baheti at various locations like Mumbai, Pune, Jalna, Nanded etc. He also explained that Shri Dinesh Baheti is a businessman based in Nanded. He further explained that Soniji, Rathod, Mama, Somani, Shan....
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.... sum of Rs. 14,27,87,850/- does not pertain to Shri Dinesh Baheti. The assessee explanation to that extent is correct since as per the seized document, the total amount received by Shri Dinesh Baheti is of Rs. 12,66,12,150/-. Since the seized document show that the assessee has received amount of Rs. 12,66,12,150/- and the assessee has not recorded the sum received in his books of account and has not explained the source of the same, hence the same is added u/s 69A of the I.T. Act and penalty proceedings u/s 271AAC(1) are separately initiated." 6. The ld. CIT (A) after considering the relevant finding given by the ld. AO, documentary evidences and explanation and the submissions given by the assessee has deleted the addition. However, in so far as plea of the assessee that assessee was not allowed cross examination of Shri Shailendra Rathi, same has been rejected by him. The reasons for deletion of addition by the ld. CIT (A) are that ld. AO was relying upon statement of Shri Shailendra Rathi which was later on has been retracted by him and the seized material in the form of Whatsapp chat does not specify nature or purpose of the alleged transaction and neither does it have the ....
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....borating it with any kind of independent evidence linking such material with the assessee. As per the plethora of Court judgments discussed above, such an act is not permitted under the law. The Hon'ble Supreme Court in the case of Umacharan Shaw and Bros v CIT (1959) 37 ITR 271 held that suspicion, however strong, cannot take the place of evidence. Similarly, raising presumption itself does not amount to proof. Presumption, however strong, cannot take the place of evidence as held in the case of Pooja Bhatt 66 TTJ (Mum) 817 and in the case of D.M Kamani HUF 65 TTJ (Pat) 504. While the assessee Sh. Dinesh Baheti was also covered under search, it is not the case that any corroborating evidence was found in his case linking him to the material found from Sh. Shailendra Rathi. Thus, in the absence of any independent evidence linking the assessee with the material found from a third party or a third party statement, the addition made by the AO on the basis of such third party statement or material found from the third party cannot be sustained. The addition of Rs. 12,66,12,150/- made by the AO in the case of the assessee is accordingly deleted and the ground of appeal no. 3 is allo....
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....xamination of Shri Shailendra Rathi which was not given. 10. From the perusal of the statement of the assessee during the course of search recorded u/s. 132(4), assessee in reply to the question wherein he was confronted with the statement of Shri Shailendra Rathi, has categorically stated that he cannot comment on the statement of Shri Shailendra Rathi or about the chats with Shri Nilesh Toshniwal and he categorically stated that he has not received any cash from Shri Rathi and he do not know anyone named Shri Nilesh Toshniwal. He also submitted that he has never seen this image of the Whatsapp nor he has any such chat with him and therefore, he cannot offer any comment. In all the statements he has denied receiving any payment from Shri Shailendra Rathi directly or indirectly through anyone and he is not aware of any such loose sheet nor does he know about any person. Assessee also denied knowing any Shri Jayant Shah and the allegation by Shri Shailendra Rathi is not even specific as to why any such huge amount would be paid to the assessee and for what purpose as he has no business deal with him directly or indirectly. From the perusal of thee statements of the assessee, we f....
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....mentioning the name of the assessee. As noted above, nowhere Shri Shailendra Rathi has explained the source of funds and purpose for the funds were given. Although catena of judgments have been cited before us that under these facts and circumstances, no addition can be made, however, without even referring to those judgments from the facts itself it is very clear that there is no tangible material having live link nexus to establish that assessee has received any kind of cash. 12. A conversation received from Whatsapp chat has to be corroborated with other materials and even it has not been brought on record as to what is the authenticity of Whatsapp chat and whether the procedure prescribed u/s. 65 A & 65B of the Indian Evidence Act. Mobile Phone is an electronic record and condition provided for admissibility of any such digital data or record has been provided in section 65B of the Indian Evidence Act. The Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571 has clarified the position as follows: ● A certificate under Section 65B (4) is mandatory, and a condition precedent to the admissibility of evidence by w....
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....ourt observed that Section 65B does not speak of the stage at which such a certificate must be furnished to the court. In Anvar (supra), the Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. This requirement is applicable in cases where such certificate could be procured by the person seeking to rely upon the electronic record. In cases where either a defective certificate is given, or where such certificate has been demanded and is not given by the concerned person, the court must summon the person referred to in Section 65B(4) and require that the certificate be given by such person(s). This ought to be done when the electronic record is produced in evidence before the court without the requisite certificate. In criminal cases, the requisite certificate can be directed to be produced by the court at any stage, as long as the trial is not over. Whilst these observations were made in the context of criminal cases, the Court noted that the aforesaid is subject to exercise of appropriate discretion in civil cases. ● Given that the certificate under Section 65B(4) may be given long after the electronic re....