Sec 145 – Admissibility of micro films, facsimile copies of documents and computer printouts as documents and as evidence

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Sec 145 – Admissibility of micro films, facsimile copies of documents and computer printouts as documents and as evidence 2017-04-16T23:45:55+00:00

GST India Forum – Goods and Services Tax (GST) in India Forums Bare Law Sec 145 – Admissibility of micro films, facsimile copies of documents and computer printouts as documents and as evidence

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  • Miloni ShahMiloni Shah
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    #1187 |

    (1) Notwithstanding anything contained in any other law for the time being in force,-
    (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or
    (b) a facsimile copy of a document; or
    (c) a statement contained in a document and included in a printed material produced by a computer, subject to such conditions as may be prescribed; or
    (d) any information stored electronically in any device or media, including any hard copies made of such information,
    shall be deemed to be a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
    (2) In any proceedings under this Act or the rules made thereunder, where it is desired to give a statement in evidence by virtue of this section, a certificate,-
    (a) identifying the document containing the statement and describing the manner in which it was produced;
    (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer,
    shall be evidence of any matter stated in the certificate and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

    Priya MadrechaPriya Madrecha
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    145.1 Introduction
    Both the sections i.e. Section 144 dealing with ” Presumption as to Documents in Certain Cases” and Section 145 dealing with “Admissibility of micro films, facsimile copies of documents and computer printouts as documents and evidence” are analysed together.
    145.2 Analysis
    As per the Webster Dictionary presumption means “a belief that something is true even though it has not been proved”. Presumption, is an inference of fact drawn from other known facts, unless there is contrary evidence.
    This presumption is rebuttable, since, any contrary evidence provided by the assessee, negates such presumption and such presumption is not a conclusive proof. The words “shall presume” in the Act suggest that the judge cannot refuse to draw the presumption.
    In general practice the onus of proving relevance and genuineness of documents produced as evidence is on the person producing the said documents. This chapter deals with documents produced as evidence by prosecution. Further, this section has placed the onus of proving the contrary on the assessee i.e. the assessee has to prove that the documents provided by prosecution are not proper evidence.
    The term ‘document’ has been defined so as to include written or printed record of any sort and electronic record as defined in the Information Technology Act, 2000 (Sec 2(41)). Any information stored electronically or any hard copies made thereof is treated as document.
    A certificate by a responsible person in relation to the operation of the computer or the management of such activities is required for identifying the document and describing the manner it was produced is required.
    145.3 Comparative Review
    Comparison to Central Excise:
    Sections 144 and 145 of the CGST Act are similar to Sections 36A and 36B of the Central Excise Act respectively.
    In addition, Sec 12B of the Central Excise Act deals with Presumption that the incidence of duty has been passed on to the buyer.
    Landmark Judgements:
    —     In the case of Commissioner of Central Excise and Customs, Surat – Vs. Vinod Kumar Gupta, a computer print out of the data collected on USB during a raid was adduced as an evidence against the manufacturer, and further the witnesses had disowned their statements, The Honourable Gujarat High Court has held that such reliance on such material was impermissible in view of non-fulfilling the conditions contained in subsection (2) of Section 36-B of the Central Excise Act.
    —     In the case of Commissioner of Central Excise, Ludhiana Vs. Ghansham Bassi, the Honourable Punjab and Haryana High Court noted that the Tribunal had wrongly rejected the appeals of the revenue without considering the arguments raised by the department and relevant provisions of law regarding maintenance of record. The Honourable Court further held that the Tribunal had only recorded that the Commissioner (Appeals) had passed a detailed order by taking into consideration various precedent decisions of the Tribunal as also the provisions of Section 36B of the CE Act and also found that there was no evidence of clandestine removal. The charges of clandestine activities and removal of goods thereof were required to be adjudicated on the basis of appreciating factual matrix by giving sufficient and cogent reasons. A perusal of the order of the Tribunal more particularly para 8 thereof showed that no legally justified reasons had been recorded for rejecting the appeals of the revenue. The Tribunal being final fact finding authority was required to deal with all aspects of facts and law before recording its conclusions based thereon.
    145.6 MCQ
    Q1.  Document includes:
    (a)    Written record
    (b)    Printed Record
    (c)    Electronic
    (d)    all of the above Ans: (d) All of the above

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