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TMI Blog2025 (2) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, this would require examination and investigation of the facts as to what details were filed, and in the absence of any attachments to Exhibit 'C', this Court cannot exercise its discretionary and equitable jurisdiction to investigate such factual issues. The information furnished to the petitioner states that the revenue audit could not find any documentary evidence on record to show nexus. Therefore, this would require the Court to go into facts of what was filed or not, and such an exercise certainly cannot be carried out in writ proceedings. Given the facts in the present case and the petitioner's failure to provide the entire material on which he alleges a change of opinion, we do not deem it appropriate to decide the legal contention of whether post-amendment reopening can be done based on an audit opinion even if a query was raised during assessment proceedings. The necessary factual foundation for deciding this issue is simply not evident in this case. Merely relying upon precedents but not demonstrating how they apply to the fact situation at hand or not placing the entire material before the Court renders it quite unsafe to decide this issue one way or the oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it had raised objections concerning deduction under Section 57 of the Act. The annexure states that there is no documentary evidence on record or a bank statement to prove that the said interest expenses are incurred to earn relevant income. The annexure relies upon Explanation-1 to Section 148 of the Act, which defines information suggesting income having escaped assessment to reopen the case. 5. The petitioner neither filed the reply on or before 25 March 2024 nor sought any adjournment on or before the said date. However, on 27 March 2024, an email was sent to the respondent submitting his reply to the notice issued under Section 148A (b) of the Act. The said email refers to 7 attachments, but again, none of these attachments are annexed to the present petition. It is also important to note that at pages 52 and 53 is a typed copy of the letter, which is transcribed in the email, but surprisingly, the same is undated, or the date is missed. 6. On 28 March 2024, an order under Section 148A (d) of the Act came to be passed, and along with the said order, notice under Section 148 of the Act was also issued for reopening the case for the assessment year 2017-18. In the order under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a petition may not be entertained. She submitted that this is moreso because the petitioner has alternate remedies under the IT Act should any adverse orders be made in the assessment proceedings. 13. We have heard the learned counsel for the petitioner and the respondents. 14. At the outset, we wish to state that the show cause notice under Section 148A (b) of the Act was due on or before 25 March 2024. The petitioner neither sought an extension for filing the response nor submitted any reply by 25 March 2024. The petitioner should have at least requested an extension if, for any reason, the reply could not be filed by that date. There seems to be no such request. Even if 25 March 2024 fell on a holiday, the petitioner should have been able to submit the reply the following day. It is important to note that no physical presence was required, but a reply was to be filed electronically. It is not even the petitioner's case that the system was not accepting the reply, even though the petitioner tried to file it. 15. The email dated 27 March 2024 sent by the petitioner stating to be the reply to the show cause notice under Section 148A (b) of the Act was forwarded after the expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was assessed after verification of the details. At least prima facie, there is no indication of the details. Therefore, this would require examination and investigation of the facts as to what details were filed, and in the absence of any attachments to Exhibit 'C', this Court cannot exercise its discretionary and equitable jurisdiction to investigate such factual issues. The information furnished to the petitioner states that the revenue audit could not find any documentary evidence on record to show nexus. Therefore, this would require the Court to go into facts of what was filed or not, and such an exercise certainly cannot be carried out in writ proceedings. 19. The petitioner has relied upon various decisions of this Court in support of his submission that even after the amendment to Section 148 of the Act, audit opinion cannot be the basis for reopening the case. For the reasons stated above, in the absence of any attachment to the letters filed during the assessment proceedings and to the belated reply to show cause notice under Section 148A (b) of the Act, we cannot factually determine whether this issue was examined in the regular assessment proceedings. Furthermore, non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to the facts of the present case. 23. We may point out that none of the parties have brought to our attention the decision of the Kerala High Court in the case of Sree Narayana Guru Memorial Educational and Cultural Trust Vs ACIT (2024) 160 taxmann.com 727 which has observed that post-amendment reopening can be done based on audit opinion even if query was raised during assessment proceedings. 24. In any event, given the facts in the present case and the petitioner's failure to provide the entire material on which he alleges a change of opinion, we do not deem it appropriate to decide the legal contention of whether post-amendment reopening can be done based on an audit opinion even if a query was raised during assessment proceedings. The necessary factual foundation for deciding this issue is simply not evident in this case. Merely relying upon precedents but not demonstrating how they apply to the fact situation at hand or not placing the entire material before the Court renders it quite unsafe to decide this issue one way or the other in this case. Our observations are, therefore, prima facie. 25. For all the above reasons, we deem it fit not to exercise discretionary a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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