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TMI Blog2019 (8) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... d are being disposed of. 3. These six writ petitions were moved by way of lunch motion today, expressing imminence, immediacy and urgency. Request for lunch motion at half past ten in the forenoon was acceded to and the matters have been taken up. 4. It was submitted that these six writ petitions arise out of a common factual matrix and the subject matter arises under 'Income Tax Act, 1961' ('IT Act' for brevity). It was submitted that only the assessment years in these six writ petitions are different and the six assessment years are 2012-13 to 2017- 18 (six successive assessment years). Be that as it may, it was also submitted that the central theme/core issue in these writ petitions is the same. Therefore, this common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sum and substance of the response of the Department is that there was a survey inter alia under Section 133A of IT Act and i.e., survey conducted in the premises of the writ petitioner/assessee on 18.03.2019. It was also pointed out that during such survey, bills/invoices for all the expenses claimed, loan agreement copies etc., were called for but no details have been furnished until 25.03.2019. 8. To be noted, in these communications dated 26.04.2019, the date of survey has been wrongly mentioned as 18.03.2018. The correct date is 18.03.2019. To be noted, it was also pointed out that the writ petitioner/assessee has claimed expenses, which was in the region of 60 per cent (59.23 per cent to be precise) of the income offered. 9. In ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it was fixed at 11.30 A.M. in the forenoon today. Therefore, it emerges with clarity that the writ petitioner/assessee was served with copies of the impugned notices II on 02.08.2019 itself but has chosen to present these writ petitions in this Court only on 21.08.2019, obviously after receipt of notice fixing personal hearing on 26.08.2019. To be noted, this aspect of the matter will be dealt with in the latter part of the order. 15. It was pointed out that GKN Driveshafts (India) Ltd.(supra) principle is that in cases of reopening, it is open to the assessee to ask for reasons for reopening, reasons have to be given to the assessee, who is entitled to file objections on the same and the department should pass a speaking order on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular Tax Case Appeal No.702 of 2009 dated 11.07.2019 by a Hon'ble Division Bench of this court does not deal with a case of survey under 133A. Some other judgments are also before this Court, which also did not turn on a survey under Section 133A. Therefore, other than the judgment of the Visakhapatnam Tribunal, which is referred to in the objections, there is nothing to show that there cannot be reopening in cases of survey when the writ petitioner assessee is unable to explain excessive deductions claimed by producing supporting documents. 19. On the contrary, 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it is not only the 11th hour but 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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