M/S.vijay Cements,Rep. By Its v. The Assistant Commissioner Of Income Tax,Central Circle

W.P(MD)Nos.11261, 11271, 11272, 11273 and 11765 of 2021 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 03.08.2021(Reserved on 27.07.2021)CORAM : THE HONOURABLE MRS.JUSTICE J.NISHA BANU W.P(MD)Nos.11261, 11271, 11272, 11273 and 11765 of 2021 andconnected miscellaneous petitions (WMP.Nos.8795,8796,8801,8799,8802,8800,8805,8806,9247 &9249 of 2021) -W.P(MD)No.11261 of 2021:M/s.Vetrivel Minerals,(V V Minerals)Rep. by its Managing Partner,Mr.S.Vaikundarajan... Petitionervs. The Assistant Commissioner of Income Tax,Central Circle-2,Income Tax Staff Quarters Complex,Kulamangalam Road,Meenambalpuram,Madurai-625 002.... RespondentPetition filed under Article 226 of the Constitution of India,to issue a Writ of Certiorari, to call for the entire recordsrelating to the impugned proceedings of the respondent dated24.06.2021 in PAN- , DIN & Order No.ITBA/REC/S/154_1/2021-22/1033945481(1) for the assessment years 2013-14 to 2019-20 and theconsequential rectification order dated 01.07.2021 and quash thesame. -W.P(MD)No.11271 of 2021:M/s.Vijay Cements,Rep. by its Partner, V.Velmurugan... Petitionervs. The Assistant Commissioner of Income Tax,Central Circle-2,Income Tax Staff Quarters Complex,Kulamangalam Road,Meenambalpuram,Madurai-625 002.... RespondentPetition filed under Article 226 of the Constitution of India,to issue a Writ of Certiorari, to call for the entire recordshttps://hcservices.ecourts.gov.in/hcservices/ relating to the impugned proceedings of the respondent dated16.06.2021 in PAN- , DIN & Order No.ITBA/AST/S/153A/2021-22/1033501501(1) for the Assessment Year 2017-18 and quash the same. -W.P(MD)No.11272 of 2021: M/s.Vijay Cements,Rep. by its Partner, V.Velmurugan... Petitioner vs. The Assistant Commissioner of Income Tax,Central Circle-2,Income Tax Staff Quarters Complex,Kulamangalam Road,Meenambalpuram,Madurai-625 002.... Respondent Petition filed under Article 226 of the Constitution of India,to issue a Writ of Certiorari, to call for the entire recordsrelating to the impugned proceedings of the respondent dated16.06.2021 in PAN- , DIN & Order No.ITBA/AST/S/153A/2021-22/1033509916(1) for the Assessment Year 2018-19 and quash the same. -W.P(MD)No.11273 of 2021: M/s.Vijay Cements,Rep. by its Partner, V.Velmurugan... Petitioner vs. The Assistant Commissioner of Income Tax,Central Circle-2,Income Tax Staff Quarters Complex,Kulamangalam Road,Meenambalpuram,Madurai-625 002.... Respondent Petition filed under Article 226 of the Constitution of India,to issue a Writ of Certiorari, to call for the entire recordsrelating to the impugned proceedings of the respondent dated16.06.2021 in PAN- , DIN & Order No.ITBA/AST/S/143(3)/2021-22/1033511435(1) for the Assessment Year 2019-20 and quash the same. -W.P(MD)No.11765 of 2021: M/s.Vetrivel Minerals,(V V Minerals)Rep. by its Managing Partner,Mr.S.Vaikundarjan... Petitionerhttps://hcservices.ecourts.gov.in/hcservices/ vs.The Assistant Commissioner of Income Tax,Central Circle-2,Income Tax Staff Quarters Complex,Kulamangalam Road,Meenambalpuram,Madurai-625 002.... Respondent Petition filed under Article 226 of the Constitution of India,to issue a Writ of Certiorari, to call for the entire recordsrelating to the impugned proceedings of the respondent dated16.06.2021 in PAN- , DIN & Order No.ITBA/AST/S/143(3)/2021-22/1033511435(1) for the Assessment Year 2019-20 and quash the same. -W.P(MD)No.11765 of 2021: M/s.Vetrivel Minerals,(V V Minerals)Rep. by its Managing Partner,Mr.S.Vaikundarjan... Petitionerhttps://hcservices.ecourts.gov.in/hcservices/ vs.The Assistant Commissioner of Income Tax,Central Circle-2,Income Tax Staff Quarters Complex,Kulamangalam Road,Meenambalpuram,Madurai-625 002.... Respondent Petition filed under Article 226 of the Constitution of India,to issue a Writ of Certiorari, to (i)call for the entire recordsrelating to the impugned proceedings of the respondent dated24.06.2021 in PAN- for the Assessment Year 2013-14 andquash the same; (ii)call for the entire records relating to theimpugned proceedings of the respondent dated 24.06.2021 in PAN- for the Assessment Year 2014-15 and quash the same; (iii)call for the entire records relating to the impugned proceedings ofthe respondent dated 24.06.2021 in PAN- for the AssessmentYear 2015-16 and quash the same; (iv)call for the entire recordsrelating to the impugned proceedings of the respondent dated24.06.2021 in PAN- for the Assessment Year 2016-17 andquash the same; (v)call for the entire records relating to theimpugned proceedings of the respondent dated 24.06.2021 in PAN- for the Assessment Year 2017-18 and quash the same; and(vi)call for the entire records relating to the impugned proceedingsof the respondent dated 24.06.2021 in PAN- for theAssessment Year 2019-20 and the consequential rectification orderdated 01.07.2021 quash the same. COMMON ORDER W.P(MD)No.11261 of 2021 is field by the petitioner challengingthe common impugned order passed by the respondent for theAssessment Years 2013-2014 to 2019- 2020. W.P(MD)No.11271 to 11273 of 2021 are filed by the petitionerschallenging the individual assessment orders for the AssessmentYears 2017-2018 to 2019-2020. 2.The Assessment Orders in the above writ petitions are passedunder Section 153A of the Income Tax Act pursuant to a searchconducted on 25.10.2018 in VV group of companies. The facts in allthe cases are almost identical and the orders came to be passedpursuant to the group search conducted by the Income Tax Department.https://hcservices.ecourts.gov.in/hcservices/ The ground of challenge are also identical and all the writpetitions are disposed of by this common order. 3.The petitioners assailed the impugned orders contending thatit is in violation of the principles of natural justice, arbitrary,mechanical and without any independent application of mind and alsostating that the Income Tax Department has not discharged the burdenof proof, proving that the income determined and sought to be taxedwere not from the materials seized during the time of search. Thelearned counsel for the petitioners relied on the followingjudgments namely, a.M/s. All Cargo Global Logistics Ltd., vs. DCIT(ITA Nos.5018to 5022 & 5059/M/10 dated 23.05.2012) b.(2015) 374 ITR 645 – Commissioner of Income Tax vs.Continental Warehousing Corporation Ltd. c.(2016) 380 ITR 573 - Commissioner of Income Tax vs. KabulChawla d.(2016) 385 ITR 624 - Commissioner of Income Tax vs.St.Francis Clay Décor Tilese.(2017) 390 ITR 496 - Commissioner of Income Tax vs. AjayGuptaf.(2017) 395 ITR 526 - Commissioner of Income Tax vs. MeetaGutgutia Prop. M/s.Ferns 'N' Petalsg.(2017) 397 ITR 82 – Principal Commissioner of Income Tax vs.Best Infrastructure (India) Pvt. Ltd. a.M/s. All Cargo Global Logistics Ltd., vs. DCIT(ITA Nos.5018to 5022 & 5059/M/10 dated 23.05.2012) b.(2015) 374 ITR 645 – Commissioner of Income Tax vs.Continental Warehousing Corporation Ltd. c.(2016) 380 ITR 573 - Commissioner of Income Tax vs. KabulChawla d.(2016) 385 ITR 624 - Commissioner of Income Tax vs.St.Francis Clay Décor Tilese.(2017) 390 ITR 496 - Commissioner of Income Tax vs. AjayGuptaf.(2017) 395 ITR 526 - Commissioner of Income Tax vs. MeetaGutgutia Prop. M/s.Ferns 'N' Petalsg.(2017) 397 ITR 82 – Principal Commissioner of Income Tax vs.Best Infrastructure (India) Pvt. Ltd. and contended that in case of assessment under Section 153(A), theaddition or disallowance can be made only from the materials foundduring the time of search. The petitioners along with the writtenarguments have annexed the orders of dismissal of the Special LeavePetition preferred by the Income Tax Department in Special LeavePetition(Civil) Diary No.18121/2018 as against the judgment reportedin 395 ITR 526 in the case of Meeta Gutgutia wherein, the counselfor the writ petitioners contended that no incriminating materialswere seized during the time of search and therefore no addition ordisallowance can be made in an assessment under Section 153(A) ofthe Act and therefore contended that the impugned assessment orderswere bad in law. 4.It was also contended that the department only relied uponthe materials found in the brothers group of companies andresidences and also the assessment in the case of the petitionerswas framed only by taking into consideration the estranged brother'sstatement who belonged to the other group. He would further submitthat even assuming some incriminating materials were found duringthe time of search pertaining to any person other than the personsearched, then the recourse for the department is to proceed underSection 153C and not under Section 153A by placing reliance onparagraph 10 of the Division Bench judgment of the Delhi High Courtin the case of MDLR Resorts(P) Ltd., reported in Taxman.com 365https://hcservices.ecourts.gov.in/hcservices/ (Delhi) High Court held that''10.For clarity we would like to elaborate what has beenbriefly referred to above. Search warrant (i.e.Form No.45) wereprinted documents in which requisite blanks i.e., names anddetails have been filled by hand. Due to paucity of space inthe column, the authority issuing the search warrant had put an,(*) mark and thereafter mentioned other names in respect of whomthe search warrant had been issued.'' 5.Further, the counsel for the petitioners also contended thatthe entire assessment on the petitioners was framed on the basis ofthe alleged secondary evidence of electronic records such as, ExcelSheet, Excel work sheet, Excel note book, Excel files, e-mailcommunication and Whatsapp conversation and the so called statementof the persons recorded under Section 132(4) of the Income Tax Act.The counsel for the writ petitioners contends by placing reliance onthe judgment of the Supreme Court in the case of Anwar PV reportedin (2014) 10 SCC 473 and also in the case of Arjun Pandit Raoreported in 2020 7 SCC 1 that since the mandatory requirement ofSection 65B of the Indian Evidence Act has not been complied with inrespect of any of the electronic records relied upon by therespondent, they being not admissible in evidence, the assessmentorders being passed on the same, cannot be sustained in the eye oflaw. 6.It was further contended by the petitioners' counsel thatdepriving the assessee the opportunity to cross examine the personswhose statements were recorded under Section 132(4) of the IncomeTax Act, were used for making additions/disallowance under Section153(A) would amount to violation of the principles of naturaljustice. 6.It was further contended by the petitioners' counsel thatdepriving the assessee the opportunity to cross examine the personswhose statements were recorded under Section 132(4) of the IncomeTax Act, were used for making additions/disallowance under Section153(A) would amount to violation of the principles of naturaljustice. 7.The petitioners' counsel further pointed out that in spite ofspecific request by the petitioners, they were not allowed to crossexamine the said persons, but the request was not even considered.The petitioners in support of his arguments placed reliance on thedecision of the Delhi High Court in the case of PCIT vs. Anand KumarJain reported in 2021 SCC Online Del 3174 and the decisions of ITATDelhi Bench in the case of Deputy Commissioner of Income Tax vs.M/s.Roger Enterprises (P) Ltd., reported in 2012 SCC Online ITAT11821 and Brij Bhushan Singhal reported in 2018 SCC Online ITAT 2891and the decision in the case of D.S.Suresh by the ITAT BangaloreBench in ITA.No.462 and 463 Bang/2020. 8.The petitioners' counsel further contended that thepetitioners were handicapped from effectively defending theproposals of additions and disallowance of the department in theabsence of copies of the panchanama being given to them. Thepetitioner pointing out various communications of petitionersseeking for the copies of all the panchanamas, submitted that in theabsence of the said panchanamas, the petitioners are not in ahttps://hcservices.ecourts.gov.in/hcservices/ position to account as to what are all the seized materials and fromwhich group, the said materials were seized and whether the seizedmaterials has anything incriminating and whether the department wasdeliberately not considered most of the seized materials whichotherwise would prove the genuineness of the transaction. 9.The petitioners' counsel further contended that in view ofthe assessment being framed under Section 153(A) of the Income TaxAct, the same has to be based on the incriminating materials foundat the time of search. By denying the copies of the panchanamas,the petitioners were prevented from pointing out the materialsrelied by the department which were not found at the time of searchin the premises of the petitioners. 10.The petitioners' counsel further submitted that at the timeof consolidating the search proceedings, the department contendedthat the same has necessitated due to interlocking andinterconnecting of funds of various groups. That being so, withoutany clarity as to which funds the alleged seized materials belongto, framing of the assessment orders is improper. The counsel forthe petitioner also pointed out the earlier counter filed by thedepartment in W.P(MD)No.16869 of 2019 and contended that thedepartment has conceded that after centralisation, the petitionersare entitled for all the copies of seized materials but denying thesame subsequentlyis illegal. 11.The petitioners further contended that in the case of W.P(MD)Nos.11271 to 11273 of 2021, the specific objections made in thecommunication dated 08.03.2021 were not even considered by theassessing officer. It was further pointed out that by thecommunications dated 08.09.2020 and 13.03.2020 the department haspredetermined the liability therefore, on the wise of predeterminingthe issue, the assessment orders have to be set aside. The counselfor the petitioners pointed out various paragraphs in the show causenotice that show cause notices that preceded the assessment ordersare identical and similar to the assessment orders and therefore,the counsel for the petitioners pleaded for quashing of theassessment orders as it is violative of the law laid down by theSupreme Court in the case of Siemens Ltd., vs. State of Maharashtraand others reported in (2006) 12 SCC 33 and Oryx Fisheries PrivateLimited vs. Union of India and others reported in (2010) 13 SCC 427. 12.The petitioners also pointed out that the assessment ordersare mechanical orders passed without any independent application ofmind and it was a cut and paste one from the predetermined showcause notice and communication dated 08.09.2020 and 13.03.2020. 13.The counsel for the petitioners also contended that as faras the writ petitions in W.P(MD)No.11271 to 11273 of 2021, areconcerned, not only the specific objections raised by communicationhttps://hcservices.ecourts.gov.in/hcservices/ dated 08.03.2021 were not considered but also the statements made inparagraphs 3 and 4 of the assessment orders are completely false andthe same demonstrates the mechanical manner in which the impugnedorders came to be passed. 14.Per contra, the learned Senior Standing Counsel for theIncome Tax Department contended that panchanamas were given to theconcerned authorised persons and the petitioners' request for crossexamination was not conducted, as the statements relied upon wererecorded under Section 132(4) during the time of search from theemployees of the petitioners and therefore it will not be given.The learned Senior Standing Counsel also pointing out the judgmentof the Supreme Court in the case of Commissioner of Income Tax vs.Chhabil Dass Agarwal reported in [2013] 36 taxmann.com 36(SC) andthe judgment of this Court in M.Vivek vs. Deputy Commissioner ofIncome Tax, Central Circle-2(i/c), Trichy, reported in [2020] 121taxmann.com 366 (Madras), contended that in view of the alternativeremedy available under the statute, the writ petitions are notmaintainable. The learned Senior Standing Counsel also placingreliance on the Delhi High Court judgment MDLR Research PrivateLtd., reported in 2013 40 taxmann.com 365, contended that panchanamais a document which can either be a) preceding documenting searchwith or without any seizure b) it can be a document for return ofseized article or the removal of seals and c)it can also be adocument evidencing the conclusion of the search and therefore, thepetitioners cannot be aggrieved on account of the denial of copiesof panchanama. 15.The learned Senior Standing Counsel relied on the judgmentof the Single Bench of this Court cited supra and contended thatproposed additions were not made only on the oral evidence made bythe third parties, but it was based on the materials seized duringthe time of search. The learned Senior Standing Counsel placingreliance on the counter filed by the department made extensivesubmissions by reiterating the contentions found therein. 16.In response to the arguments submitted by the learned SeniorStanding Counsel for the respondent, counsel for the petitionerssubmitted that in the case of violation of principles of naturaljustice, the alternative remedy cannot be a bar and also placed thefollowing decisions for consideration of this Court. i)(2018) 12 SCC 36, Jeans Knit (P) Ltd., vs. CIT ii)(2020) 13 SCC 285, Maharashtra Chess Assn. vs. Union ofIndiaiii)2021 SCC Online Ker 269, V.Gopalan vs. Chief Commissionerof Income Taxiv)2021 SCC Online 334, Radha Krishnan Industries vs. State ofH.Pv)2021 SCC Online Del 3613, ESS Advertising (Mauritius) S.N.C.vs. Assistant Commissioner of Income Tax.https://hcservices.ecourts.gov.in/hcservices/ 16.In response to the arguments submitted by the learned SeniorStanding Counsel for the respondent, counsel for the petitionerssubmitted that in the case of violation of principles of naturaljustice, the alternative remedy cannot be a bar and also placed thefollowing decisions for consideration of this Court. i)(2018) 12 SCC 36, Jeans Knit (P) Ltd., vs. CIT ii)(2020) 13 SCC 285, Maharashtra Chess Assn. vs. Union ofIndiaiii)2021 SCC Online Ker 269, V.Gopalan vs. Chief Commissionerof Income Taxiv)2021 SCC Online 334, Radha Krishnan Industries vs. State ofH.Pv)2021 SCC Online Del 3613, ESS Advertising (Mauritius) S.N.C.vs. Assistant Commissioner of Income Tax.https://hcservices.ecourts.gov.in/hcservices/ 17.Further, the counsel for the petitioners contended that theexcuse given for not furnishing the panchanama is an after-thoughtand the excuse is invented subsequently which can neither besustained nor accepted as the law in this regard is no more resintegra. For the said purpose, he argued placing reliance on thejudgment of the Supreme Court in Mohinder Singh Gill and another vs.The Chief Election Commissioner, New Delhi and others reported in(1978) 1 SCC 405 which was followed in the cases of Chandra AmmalEducational and Charitable Trust vs. BSNL reported in 2015 SCCOnline Mad 4419, N.Subburaj vs. District Collector reported in 2016SCC Online Mad 4715 and Dr.Mary Nirmala Jeyaraj vs. Joint Directorof Medical and Rurla reported in 2019 SCC Online Mad 18738. 18.On considering the arguments, documents and judgments citedby both sides, I find that the petitioners have sought for copies ofpanchanamas in the 63 places searched, but however, the departmenthad admittedly not given all the panchanamas to the petitioners eventhough they accepted that the petitioners are entitled to the samein the counter filed in W.P(MD)No.16869/2019. 19.In the impugned order in W.P(MD)No.11261 of 2021, inparagraph 26.7, the respondent stated that it is practicallyimpossible to give all the seized copies given the volume ofmaterials seized from each premises. The department cannot takesuch stand. Whatever be the volume of the materials seized, theassessee also having demanded the same, the department is bound tohave given all the copies. Again in paragraph 26.8 of the impugnedorder in W.P(MD)No.11261 of 2021, the department contends that it isillogical for the assessee to insist for the copies of the materialsseized from the office, factories and residences of the Directors ofM/s.Dhanalakshmi Srinivasan Sugars Pvt Ltd. However, as pointed outby the counsel for the petitioners, the documents seized fromM/s.Dhanalakshmi Srinivasan Sugars Pvt Ltd., were discussed in theassessment order in paragraphs 22.4, 22.7 and 24.7. That being so,when the department using the said materials for framing of theassessment, copies of the same should have been given to theassessee. Moreover, in the typedset of papers filed by therespondent department in page 1, wherein a communication is foundaddressed by the petitioner dated 28.07.2020 wherein the petitionerhas set out the persons who are Directors/Partners in each of theconcern and it could be seen in M/s.Dhanalakshmi Srinivasan SugarsLtd., the members belonging to the petitioners' group are alsothere. In the counter affidavit filed by the department in W.P(MD)No.11261 of 2021 in paragraph 19, the respondent department contendsthat copies of the one group cannot be given to other and inparagraph 18.6 of the counter filed in W.P(MD)No.11271 to 11273 of2021, the assessing officer states that if specific materials wereasked, he would have taken permission from the other group andsupplied. As rightly pointed out by the learned counsel for thehttps://hcservices.ecourts.gov.in/hcservices/ petitioners, this stand was not taken by the department before thepassing of the assessment orders, but on the contrary as found inthe communication dated 17.11.2020 at pages 299, 302, 304, 306, 308and 310, the department demanded original panchanamas for givingcopies of the seized document. Even assuming the stand taken by thedepartment in their counters are justifiable, in the facts andcircumstances of the case, the respondent department should haveinformed the same before passing the assessment order or atleastshould have discussed the same in the assessment order. 20.Therefore, the stand taken by the department now by way ofcounter of non furnishing of panchanamas cannot be accepted. It isalso not explained as to which are the concern, the respondentdepartment concluded as belonging to the other group and what wasthe basis for such conclusion when the petitioners in itscommunication dated 28.07.2021 has explained their interest in everyconcern. 21.Therefore, non furnishing of the panchanama to the assesseeis a violation of the principles of natural justice as it disablesthe petitioners from having knowledge of the seized materials andthe alleged incriminating materials relied upon by the respondentdepartment. 22.On the next issue of refusal of cross examination of thepersons whose statements were recorded during the time of searchunder Section 132(4) of the Income Tax Act, it is trite law that theperson against whom a statement is used, should be given opportunityto counter and contest the same. I am unable to accept thecontention of the learned Senior Counsel that since the statementsrecorded were of persons who were employees of the assessee andtherefore the assessee cannot seek for cross examination of them.The basic principles of jurisprudence governing the law of evidencecan in no way interfered and could not be by the Income Tax Actprovisions and neither the authorities functioning under the IncomeTax Act has any discretion in such matters. The Supreme Court inthe judgment Kishan Chadn Chellaram reported in 125 ITR 713 at page720 which is also followed in the judgments cited by the petitionerin the case of Deputy Commissioner of Income Tax vs. M/s.RogerEnterprises (P) Ltd., reported in 2012 SCC Online ITAT 11821 and inthe case of Brij Bhushan Singal vs. Assistant Commissioner of IncomeTax reported in 2018 SCC Online ITAT 2891, held as follows:- ''It is true that the proceedings under the Income Tax Actlaw are not governed by the strict rules of evidence andtherefore, it may be said that even without calling the Managerof the bank in evidence to prove this letter, it could be takeninto account as evidence. But before the Income Tax authoritiescould rely upon it, they were bound to produce it before theassessee so that the assessee could controvert the statementscontained in it by asking for the opportunity to cross examinehttps://hcservices.ecourts.gov.in/hcservices/ the Manager of the bank with reference to the statement made byhim. ....'' ''It is true that the proceedings under the Income Tax Actlaw are not governed by the strict rules of evidence andtherefore, it may be said that even without calling the Managerof the bank in evidence to prove this letter, it could be takeninto account as evidence. But before the Income Tax authoritiescould rely upon it, they were bound to produce it before theassessee so that the assessee could controvert the statementscontained in it by asking for the opportunity to cross examinehttps://hcservices.ecourts.gov.in/hcservices/ the Manager of the bank with reference to the statement made byhim. ....'' 23.The counsel for the petitioners also placed the recentjudgment of the Supreme Court in the case of ICDS Ltd., reported in2020 10 SCC 529, wherein, the Apex Court has remanded back thematter on account of the assessee being deprived of crossexamination. Therefore, the respondent either should not haverelied on the statements recorded under Section 132(4) or in case,if they want to rely on the same, they should not have denied theopportunity to the petitioners when they demanded of cross examiningthe persons who gave the statement. When the department has taken astand that there are two groups which were searched by a singlewarrant and that the companies of one group should not be given toanother, as rightly pointed out by the learned counsel for thepetitioners, the assessing officer should not have discussed thestatement of the other group for framing the assessment of thepetitioners. This completely vitiates the entire assessmentproceedings. 24.As contended by the writ petitioners, when the entireassessment has been framed only on the basis of the so-calledelectronic record which are said to be copies of Excel Sheet, Excelwork note book etc., non compliance of Section 65(B) of the IndianEvidence Act renders the document inadmissible in the eye of law asheld by the Supreme Court in the judgment reported in Anvar P.V vs.P.K.Basheer and others reported in (2014) 10 SCC 473. ''14.Any documentary evidence by way of an electronic recordunder the Evidence Act, in view of Sections 59 and 65A, can beproved only in accordance with the procedure prescribed underSection 65B. Section 65B deals with the admissibility of theelectronic record. The purpose of these provisions is tosanctify secondary evidence in electronic form, generated by acomputer. It may be noted that the Section starts with a nonobstante clause. Thus, notwithstanding anything contained in theEvidence Act, any information contained in an electronic recordwhich is printed on a paper, stored, recorded or copied inoptical or magnetic media produced by a computer shall be deemedto be a document only if the conditions mentioned under sub-Section (2) are satisfied, without further proof or productionof the original. The very admissibility of such a document,i.e., electronic record which is called as computer output,depends on the satisfaction of the four conditions under Section65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act: (i) The electronic record containing the information should havebeen produced by the computer during the period over which thesame was regularly used to store or process information for thepurpose of any activity regularly carried on over that period bythe person having lawful control over the use of that computer;https://hcservices.ecourts.gov.in/hcservices/ (ii) The information of the kind contained in electronic recordor of the kind from which the information is derived wasregularly fed into the computer in the ordinary course of the said activity; (i) The electronic record containing the information should havebeen produced by the computer during the period over which thesame was regularly used to store or process information for thepurpose of any activity regularly carried on over that period bythe person having lawful control over the use of that computer;https://hcservices.ecourts.gov.in/hcservices/ (ii) The information of the kind contained in electronic recordor of the kind from which the information is derived wasregularly fed into the computer in the ordinary course of the said activity; (iii) During the material part of the said period, the computerwas operating properly and that even if it was not operatingproperly for some time, the break or breaks had not affectedeither the record or the accuracy of its contents; and(iv) The information contained in the record should be areproduction or derivation from the information fed into thecomputer in the ordinary course of the said activity. 15.Under Section 65B(4) of the Evidence Act, if it isdesired to give a statement in any proceedings pertaining to anelectronic record, it is permissible provided the followingconditions are satisfied: (a) There must be a certificate which identifies the electronicrecord containing the statement;(b) The certificate must describe the manner in which theelectronic record was produced;(c) The certificate must furnish the particulars of the deviceinvolved in the production of that record;(d) The certificate must deal with the applicable conditionsmentioned under Section 65B(2) of the Evidence Act; and(e) The certificate must be signed by a person occupying aresponsible official position in relation to the operation ofthe relevant device. 16.It is further clarified that the person need only tostate in the certificate that the same is to the best of hisknowledge and belief. Most importantly, such a certificate mustaccompany the electronic record like computer printout, CompactDisc (CD), Video Compact Disc (VCD), pen drive, etc., pertainingto which a statement is sought to be given in evidence, when thesame is produced in evidence. All these safeguards are taken toensure the source and authenticity, which are the two hallmarkspertaining to electronic record sought to be used as evidence.Electronic records being more susceptible to tampering,alteration, transposition, excision, etc. without suchsafeguards, the whole trial based on proof of electronic recordscan lead to travesty of justice. 17.Only if the electronic record is duly produced in termsof Section 65B of the Evidence Act, the question would arise asto the genuineness thereof and in that situation, resort can bemade to Section 45A opinion of examiner of electronic evidence.18.The Evidence Act does not contemplate or permit the proofof an electronic record by oral evidence if requirements underSection 65B of the Evidence Act are not complied with, as thelaw now stands in India.'' 25.In view of the violation of the principles of naturaljustice and also due to the non compliance of Section 65(B) of thehttps://hcservices.ecourts.gov.in/hcservices/ 17.Only if the electronic record is duly produced in termsof Section 65B of the Evidence Act, the question would arise asto the genuineness thereof and in that situation, resort can bemade to Section 45A opinion of examiner of electronic evidence.18.The Evidence Act does not contemplate or permit the proofof an electronic record by oral evidence if requirements underSection 65B of the Evidence Act are not complied with, as thelaw now stands in India.'' 25.In view of the violation of the principles of naturaljustice and also due to the non compliance of Section 65(B) of thehttps://hcservices.ecourts.gov.in/hcservices/ Indian Evidence Act, this Court feels that it is a fit case forsetting aside the assessment orders. The alternative remedy underthe statute is in the case of violation of principles of naturaljustice should be an effective one capable of remedying theviolations by providing afresh, but however, it remains the factthat after amendment to Section 251(1)(a) of the Income Tax Act on01.06.2001, the CIT(Appeals) does not have the power of remand.Therefore, in the facts and circumstances of the case, since thepetitioners have made out a clear case of violation of principles ofnatural justice and the statute, this Court feels that it is a fitcase for interfering with the impugned orders. In suchcircumstances, plea of alternative remedy which is also an effectiveone to undo the violations committed by the respondent, cannot besustained. This Court is well within its power to set aside theimpugned orders and remand back the same for fresh consideration.The Supreme Court in the recent judgment reported in (2020) 13 SCC285, Maharashtra Chess Association vs. Union of India and others,negatived the contention of restriction on the exercise of thepowers of the High Court under Article 226 of the Constitution ofIndia and in this regard has held as follows:- ''19.This argument of the second respondent is misconceived.The existence of an alternative remedy, whether adequate or not,does not alter the fundamentally discretionary nature of theHigh Court's writ jurisdiction and therefore does not create anabsolute legal bar on the exercise of the writ jurisdiction by aHigh Court. The decision whether or not to entertain an actionunder its writ jurisdiction remains a decision to be taken bythe High Court on an examination of the facts and circumstancesof a particular case. 22.The mere existence of alternative forums where theaggrieved party may seek relief does not create a legal bar on aHigh Court to exercise its writ jurisdiction. 26.As far as W.P(MD)No.11765 of 2021, is concerned, it is saidto be filed only to overcome the technical objection raised by therespondent and not challenging the assessment orders separately.Therefore, the assessment orders impugned in the present writpetitions are set aside and the matter is remanded back to therespondent assessing officer for denova assessment and while doingso, the respondent officer shall, a)afford an opportunity of cross examination of the personswhose statements are relied upon by the respondent for makingadditions or disallowance ; b)give the details of all the seized materials including theplace of seizure and give copies of seized material demanded by thepetitioners. In case, the department thinks that the seizedmaterials sought for by the petitioners does not belong to thepetitioners or the petitioners' group, communicate the same to thepetitioners and in such event, in the assessment orders that framedeither on the concerns that do not belong to thehttps://hcservices.ecourts.gov.in/hcservices/ a)afford an opportunity of cross examination of the personswhose statements are relied upon by the respondent for makingadditions or disallowance ; b)give the details of all the seized materials including theplace of seizure and give copies of seized material demanded by thepetitioners. In case, the department thinks that the seizedmaterials sought for by the petitioners does not belong to thepetitioners or the petitioners' group, communicate the same to thepetitioners and in such event, in the assessment orders that framedeither on the concerns that do not belong to thehttps://hcservices.ecourts.gov.in/hcservices/ petitioners/petitioners' group or the assessment orders that areframed on the basis of the seized materials refused to be given tothe petitioners/members of the petitioners' group, there would be notax liability on the petitioners or members of the petitioners'group;c)the respondent should strictly comply with Section 65-B ofthe Indian Evidence Act if the respondent wants to use theelectronic document by way of secondary evidence;d)none of the statements of the other group should be takeninto consideration while framing the assessment on the petitionersor members of the petitioners' group and if the department thinks itis necessary to use the statement of the other group members, thepetitioners/members of the petitioners' group should be givenopportunity for cross examination, if demanded of the persons whosestatements are relied on, by the petitioners or members of thepetitioners' group. e)In case, if the department wants to fix the tax liability onthe petitioners or on the members of the petitioners group, based onthe search conducted and materials seized during the searchconducted in the premises of the other group or in case, if thedepartment wants to rely on the statement recorded under Section 132(4) during search conducted in the premises of the members of theother group, the said assessment proceedings can only be underSection 153-C of the Act. The limitation if any would standextended and would start afresh for completion of the freshassessment proceedings. 27.The writ petitions are allowed with the above observationsand directions. No costs. Consequently, connected miscellaneouspetitions are closed. Assistant Registrar (CS-I) bala / /2021Sub Assistant Registrar(CS) To The Assistant Commissioner of Income Tax,Central Circle-2,Income Tax Staff Quarters Complex,Kulamangalam Road,Meenambalpuram,Madurai-625 002. +3 CC to M/s.T.R.SENTHILKUMAR, Advocate ( SR-25229[F],datedhttps://hcservices.ecourts.gov.in/hcservices/ 04/08/2021 ) +5 CC to M/s.M.MAHARAJA, Advocate ( SR-25268,25269,25270,25271,25272[F] dated 04/08/2021 ) SSS(CO)KB(16.08.2021) 14P 10C