W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 IN HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.08.2019 CORAM HONOURABLE MR. JUSTICE M. SUNDAR W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 WMP.Nos.24807, 24808, 24812 to 24819, 24823 & 24824 of 2019 Mohan Ravi ...Petitioner --Vs-- Income Tax Officer Non-Corporate Ward 20(5) CHE 121, Nungambakkam High Road Chennai-600034 ... Respondent Prayer: Writ Petitions filed under Article 226 of Constitution of India, praying to issue writ of certiorari, calling for records on file of respondent in PAN.ADLPR6964Q and quash impugned notices in Nos.ITBA/AST/S/148/2018-19/ 1015529572(1)/ 1015529571(1)/ 1015522673(1)/ 1015522677(1) /1015522683(1) /1015522669(1) dated 29.03.2019 issued u/s.148 of Act for assessment years 2012-13 to 2017-18 along with consequential proceedings in C.Nos. ADLPR6964Q/ 2019-20/11/9/7/6/3/1 dated 31.07.2019 as illegal and without jurisdiction. For Petitioners : Mr.Raghav Rajeev Menon For Respondents : Mr.J.Narayanaswamy Senior Standing Counsel 1/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 O R D E R Mr.Raghav Rajeev Menon, learned counsel on record for writ petitioner and Mr.J.Narayanaswami, learned Senior Standing counsel for respondent are before this Court. 2. With consent of learned counsel on both sides, main writ petitions are taken up, heard out and 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 forenoon was acceded to and matters have been taken up. 4. It was submitted that these six writ petitions arise out of common factual matrix and subject matter arises under 'Income Tax Act, 1961' ('IT Act' for brevity). It was submitted that only assessment years in these six writ petitions are different and six assessment years are 2012-13 to 2017- 18 (six successive assessment years). Be that as it may, it was also submitted that central theme/core issue in these writ petitions is same. Therefore, this common order will govern these six writ petitions. 5. Six different notices, all dated 29.03.2019, were issued to writ petitioner inter alia under Section 148 of IT Act on ground that authority believes that income chargeable to tax for respective assessment years qua notices had escaped assessment within meaning of Section 147 2/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 of IT Act (these six notices under Section 148 shall hereinafter be collectively referred to as 'impugned notices I' for 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 communications are ad verbatim same. These communications dated 26.04.2019 were sent by chartered accountant firm (acting on behalf of writ petitioner and on instructions from writ petitioner/assessee) sought for reasons for reopening assessments and submitted that reasons for reopening assessments may be provided at earliest so as to enable writ petitioner/assessee to file objections to same. 6. To be noted these communications dated 26.04.2019 were sent by placing reliance on judgment of Hon'ble Supreme Court in GKN Driveshafts (India) Ltd. vs. Income Tax Officer and Others reported in [(2003) 259 ITR 19 (SC)]. 7. To these communications dated 26.04.2019, Department responded vide communications, which is also dated 26.04.2019. Sum and substance of response of Department is that there was survey inter alia under Section 133A of IT Act and i.e., survey conducted in premises of writ petitioner/assessee on 18.03.2019. It was also pointed out that during such survey, bills/invoices for all expenses claimed, loan agreement copies 3/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 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, date of survey has been wrongly mentioned as 18.03.2018. correct date is 18.03.2019. To be noted, it was also pointed out that writ petitioner/assessee has claimed expenses, which was in region of 60 per cent (59.23 per cent to be precise) of income offered. 9. In effect, reason for reopening was that writ petitioner/assessee was not able to provide bills/invoices for expenses to tune of nearly 60 per cent (59.23 per cent set out with exactitude), claimed as expenses and that details have not been furnished even though time was granted. 10. After reasons for reopening were so furnished, writ petitioner/assessee, through his chartered accountants sent another set of six communications all dated 11.05.2019 setting out objections to reopening. It is submitted that these objections are akin to each other. After considering objections raised by writ petitioner/assessee for reopening, respondent has passed six separate speaking orders all dated 31.07.2019 bearing reference nos. C.Nos. ADLPR6964Q/2019-20/11, ADLPR6964Q/2019- 20/9, ADLPR6964Q/2019-20/7, ADLPR6964Q/2019-20/6, ADLPR6964Q/2019- 20/3, ADLPR6964Q/2019-20/1 (these speaking orders shall herein after referred to as 'impugned notices II' for sake of convenience, clarity and 4/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 brevity). What is of utmost importance is that, it is not disputed that impugned notices II were served on writ petitioner on 01.08.2019 or latest by 02.08.2019. Learned counsel for writ petitioner is unable to give correct date but submits that it was certainly served on or before 02.08.2019. 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 interregnum i.e., between 02.08.2019 and 21.08.2019, pursuant to impugned notices II, respondent has sent communications dated 17.08.2019, reminding writ petitioner/assessee that certain details were sought for vide letter dated 31.07.2019 and that same have not been furnished. In response to this, writ petitioner/assessee did not say that he intend to assail impugned notices I and impugned notices II, on contrary, writ petitioner/assessee through their auditors sent communications dated 19.08.2019 stating that authorized representative of assessee was out of country and therefore, requested time till 1st week of September 2019. 12. To be noted, it is not mentioned that writ petitioner was out of country but it is stated that authorized representative was out of country. It is in such backdrop that instant writ petitions have been filed in aforesaid manner on 21.08.2019 and moved by way of lunch motion today i.e. 26.08.2019, assailing impugned notices I and impugned notices II. 5/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 13. In hearing, notwithstanding several averments that have been made in affidavits filed in support of writ petitions, notwithstanding several grounds that have been raised in affidavit filed in support of writ petitions and several contentions that have been canvassed, submissions were focused on points which can be broadly summarised as follows: (a) GKN Driveshafts (India) Ltd.(supra) principle has been violated qua impugned orders I and impugned orders II. (b) There should be tangible reasons for reopening and respondent has not shown any tangible reasons for reopening. (c) Writ petitioner was not given adequate time to produce documents in respect of expenses post survey on 18.03.2019. (d) There can be no reopening pursuant to survey under Section 133C of IT Act. 14. Mr.J.Narayanaswami, learned Senior Standing Counsel (Income Tax), who accepted notice on behalf of sole respondent in all six writ petitions, pointed out that personal hearing pursuant to impugned notices II has been fixed today i.e., 26.08.2019. It was submitted by learned counsel for writ petitioner/assessee that adjournment was sought as it was fixed at 11.30 A.M. in forenoon today. Therefore, it emerges with clarity that writ petitioner/assessee was served with copies of 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 6/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 26.08.2019. To be noted, this aspect of matter will be dealt with in latter part of order. 15. It was pointed out that GKN Driveshafts (India) Ltd.(supra) principle is that in cases of reopening, it is open to assessee to ask for reasons for reopening, reasons have to be given to assessee, who is entitled to file objections on same and department should pass speaking order on objections. 16. In this case, there is no disputation or disagreement that this procedure i.e., GKN Driveshafts (India) Ltd. (supra) principle has been followed. dates have already been alluded to supra. What is being urged is that speaking order does not deal with objections of 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 writ petitioner/assessee not producing bills/invoices loan agreements etc., in spite of time being granted, whereas objections are in complete tangent. However, objections have been dealt with, therefore, it cannot be gainsaid that that GKN Driveshafts (India) Ltd. (supra) principle has not been followed. This answers argument (a) of writ petitioner. 17. In instant case, there has been survey and writ petitioner has been called upon to produce certain documents. In one breath, writ petitioner/assessee submits that adequate time has not been given for 7/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 producing documents and in same breath writ petitioner/assessee submits that very reopening itself raises 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 reference to order of Visakhapatnam Income Tax Appeallate Tribunal in objections, but judgment placed before this Court being order made in regular Tax Case Appeal No.702 of 2009 dated 11.07.2019 by Hon'ble Division Bench of this court does not deal with case of survey under 133A. Some other judgments are also before this Court, which also did not turn on survey under Section 133A. Therefore, other than judgment of Visakhapatnam Tribunal, which is referred to in objections, there is nothing to show that there cannot be reopening in cases of survey when writ petitioner assessee is unable to explain excessive deductions claimed by producing supporting documents. 19. On contrary, 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 sweep of income escaping assessment within meaning of Section 147 of IT Act. In other words, 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 basis for Section 148 notice regarding escaped assessment 8/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 (escaped assessment within meaning of Section 147 of IT Act). This answers points (b) and (d) urged by writ petitioner. 20. In any event, in instant case it is to be noted that writ petitioner/assessee submits that sufficient time has not been granted for producing documents. Furthermore, even in response to impugned notices II, writ petitioner has written to respondent asking for time till first week of September, 2019. 21. Therefore, it comes out clearly that this is attempt to derail hearing before respondent today i.e., 26.08.2019, as there is no explanation forthcoming from writ petitioner for not coming before this Court between 02.08.2019 and 21.08.2019, more particularly, when during this period writ petitioner was issued reminder notice dated 17.08.2019 and writ petitioner responded to same on 19.08.2019 requesting for time. This leaves this Court with view that writ petitioner has not approached this Court in instant writ petitions with requisite sincerity. On contrary, these writ petitions has been moved at 11 th hour. This Court is of opinion that it is not only 11th hour but 59th minute of 11th hour. 22. In this backdrop, this Court is not inclined to interfere with impugned notices I and impugned notices II. Even in objections, being dealt with vide impugned notices II, it has been made clear that it is open to 9/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 writ petitioner/assessee to establish that these questions are left open to be decided by Assessing Authority. It is open to writ petitioner to raise this very issue in assessment proceedings and, if raised, and if documents, supporting deductions are filed, same shall be considered, as mentioned in impugned notices II, which deal with objections. 23. This Court is of 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 peculiar trajectory of this case, as writ petitioner has approached this Court at 11th hour particularly when writ petitioner had all time in world to approach this Court earlier. As alluded to supra, these writ petitions have been filed at 11th hour, pursuant to impugned notices II, on realizing that personal hearing is fixed on 26.08.2019. If writ petitioner had sought adjournment in forenoon today and if hearing is rescheduled, respondent shall consider all documents that are furnished by writ petitioner /assessee interalia in support of deductions claimed before completing assessment. If such scenario unfurls, same shall be done uninfluenced and untrammelled by anything that is se tou in instant order. This answers point (c) raised by writ petitioner. 10/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 24. These writ petitions are dismissed as bereft of bonafides and lacking in merits, albeit preserving rights of writ petitioner to limited extent set out supra. Consequently, connected miscellaneous petitions are closed. However, there shall be no order as to costs. 26.08.2019 Index: Yes/No ska To Income Tax Officer Non-Corporate Ward 20(5) CHE 121, Nungambakkam High Road Chennai-600034 11/12 http://www.judis.nic.in W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 M. SUNDAR ,J,. ska W.P.Nos.25239, 25241, 25242, 25244, 25245 & 25248 of 2019 WMP.Nos.24807, 24808, 24812 to 24819, 24823 & 24824 of 2019 26.08.2019 12/12 http://www.judis.nic.in Mohan Ravi v. Income-tax Officer Non-Corporate Ward 20(5), Chennai