TMI Blog2019 (8) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... l first week of September, 2019. A perusal of clause (ca) of Explanation 2 of Section 147 makes it clear that Section 133C survey and assessing officer noticing in such survey that excessive deduction has been claimed is brought within the sweep of income escaping assessment within the meaning of Section 147 of IT Act. In other words, a plain reading of aforesaid clause (ca) of Explanation 2 of Section 147 makes it clear that it cannot be gainsaid that Section 133C survey cannot be the basis for a Section 148 notice regarding escaped assessment (escaped assessment within the meaning of Section 147 of IT Act). This answers points (b) and (d) urged by the writ petitioner. Therefore, it comes out clearly that this is an attempt to derail the hearing before the respondent today i.e., 26.08.2019, as there is no explanation forthcoming from the writ petitioner for not coming before this Court between 02.08.2019 and 21.08.2019, more particularly, when during this period the writ petitioner was issued a reminder notice dated 17.08.2019 and writ petitioner responded to the same on 19.08.2019 requesting for time. This leaves this Court with the view that the writ petitioner has not app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all dated 29.03.2019, were issued to the writ petitioner inter alia under Section 148 of IT Act on the ground that the authority believes that income chargeable to tax for the respective assessment years qua notices had escaped assessment within the meaning of Section 147 of IT Act (these six notices under Section 148 shall hereinafter be collectively referred to as 'impugned notices I' for the sake of convenience, clarity and brevity). On receipt of impugned notices I, writ petitioner/assessee through his chartered accountant sent six different communications, all dated 26.04.2019, and this Court is informed that the communications are ad verbatim the same. These communications dated 26.04.2019 were sent by a chartered accountant firm (acting on behalf of the writ petitioner and on instructions from the writ petitioner/assessee) sought for reasons for reopening the assessments and submitted that reasons for reopening the assessments may be provided at the earliest so as to enable the writ petitioner/assessee to file objections to the same. 6. To be noted these communications dated 26.04.2019 were sent by placing reliance on the judgment of the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. To be noted, instant writ petitions have been presented only by 21.08.2019, filed on 22.08.2019 and as already mentioned supra have been moved by way of lunch motion today. In the interregnum i.e., between 02.08.2019 and 21.08.2019, pursuant to impugned notices II, the respondent has sent communications dated 17.08.2019, reminding the writ petitioner/assessee that certain details were sought for vide a letter dated 31.07.2019 and that the same have not been furnished. In response to this, writ petitioner/assessee did not say that he intend to assail the impugned notices I and impugned notices II, on the contrary, writ petitioner/assessee through their auditors sent communications dated 19.08.2019 stating that the authorized representative of the assessee was out of the country and therefore, requested time till 1st week of September 2019. 12. To be noted, it is not mentioned that the writ petitioner was out of the country but it is stated that the authorized representative was out of the country. It is in such a backdrop that instant writ petitions have been filed in the aforesaid manner on 21.08.2019 and moved by way of lunch motion today i.e. 26. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r does not deal with the objections of the writ petitioner correctly. In response to this, learned revenue counsel pointed out that reasons given for reopening are based on survey dated 18.03.2019 and the writ petitioner/assessee not producing bills/invoices loan agreements etc., in spite of time being granted, whereas the objections are in a complete tangent. However, the objections have been dealt with, therefore, it cannot be gainsaid that that the GKN Driveshafts (India) Ltd. (supra) principle has not been followed. This answers argument (a) of the writ petitioner. 17. In the instant case, there has been a survey and the writ petitioner has been called upon to produce certain documents. In one breath, the writ petitioner/assessee submits that adequate time has not been given for producing the documents and in same breath the writ petitioner/assessee submits that the very reopening itself raises a jurisdictional fact. 18. With regard to tangible reasons for reopening and reopening pursuant to survey under Section 133A of IT Act, this Court finds that there is a reference to an order of Visakhapatnam Income Tax Appeallate Tribunal in the objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 59th minute of the 11th hour. 22. In this backdrop, this Court is not inclined to interfere with the impugned notices I and impugned notices II. Even in the objections, being dealt with vide impugned notices II, it has been made clear that it is open to the writ petitioner/assessee to establish that these questions are left open to be decided by the Assessing Authority. It is open to the writ petitioner to raise this very issue in the assessment proceedings and, if raised, and if documents, supporting deductions are filed, the same shall be considered, as mentioned in the impugned notices II, which deal with the objections. 23. This Court is of the considered view that such 11th hour petitions will derail assessments process under fiscal law statues. It is made clear that this view is taken in the peculiar trajectory of this case, as the writ petitioner has approached this Court at the 11th hour particularly when the writ petitioner had all the time in the world to approach this Court earlier. As alluded to supra, these writ petitions have been filed at the 11th hour, pursuant to impugned notices II, on realizing that the personal hearing is fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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