K. Govindarajan J.
1. The petitioner in the writ petition in W. P. No. 17218 of 1999, who is the assessee on the file of the first respondent has filed the above writ petition seeking to quash the proceedings in C. No. 1514-A of 1999-2000, dated September 23, 1999, issued by the first respondent.
2. The petitioner in the writ petition in W. P. No. 17919 of 1999, who is the wife of the petitioner in W. P. No. 17218 of 1999, has filed the writ petition in W. P. No. 17919 of 1999, to quash the proceedings issued by the first respondent in C. No. 1514-A of 1999-2000, dated September 23, 1999.
3. The facts are common in both the writ petitions. The petitioners claim that they were carrying on business originally at Trivandrum in Kerala. On the basis that they proposed to shift the entire business activities to Chennai, in the State of Tamil Nadu, and as they have already shifted the permanent residence from Trivandrum to Chennai, the petitioners made an application on November 25, 1996 to the Director-General of Income-tax (Investigation), Madras, to transfer the assessment files from Trivandrum to Chennai. On August 8, 1997, the first-respondent passed the order transferring the assessment files from Trivandrum office to Chennai. The said transfer took effect from August 11, 1997. This order was passed exercising powers under Section 127 of the Income-tax Act, 1961.
4. The first-respondent on the basis of the report submitted by the Assistant Commissioner of Income-tax, dated August 5, 1999, issued a show-cause notice to the petitioners under Section 127 of the Income-tax Act, to show cause why the files relating to the case of the petitioner in W. P. No. 17218 of 1999, in a group of cases, have to be transferred from the Assistant Commissioner of Income-tax, Central, Circle-I(6), Chennai, to the Deputy Commissioner-II, Central Circle, Trivandrum. A reply was filed on September 8, 1999, raising objections to the said transfer. After considering the said objections, the first-respondent in the order dated September 23, 1999, retransferred the cases, the particulars of which are mentioned in column (3) of the Schedule annexed in the order. The said order is being challenged in the above writ petitions.
5. Learned senior counsel appearing for the petitioners has submitted that the order suffers from mala fides, and is passed contrary to the circular of the Central Board, and also the report on which the order is passed, has not been furnished to the petitioners, and so the impugned order is liable to be quashed. He has further submitted that the original transfer order is passed based on the direction given by the Central Board and so the first respondent cannot now pass the impugned order, revoking the earlier order. On the merits, learned senior counsel has submitted that the entire business has been shifted to Chennai and so the action of the first respondent in retransferring the file to Trivandrum will not serve any purpose, and they will be put to great hardship.
6. The standing counsel for the Department, appearing for the respondents has submitted that though originally the order was passed transferring the files on the basis of the representation given by the petitioners that they have transferred the entire business, it was found by the authorities that the petitioners have not taken any steps to transfer the business to Chennai and thereby the authorities found it difficult to complete the assessment for want of co-operation from the petitioners. He has also submitted that when the first respondent is having power under Section 127 of the said Act to pass such an order, this court cannot sit in appeal on the reasons given, especially when the first respondent passed the order after giving due opportunity to the petitioners. Referring to the submission of learned senior counsel appearing for the petitioners, regarding the circular of the Board relating to the transfer of files, learned standing counsel has relied on the subsequent circular dated July 27, 1999, in respect of the submission that the circular relied on by the petitioners cannot be pressed into service. He has further submitted that even now the petitioners are having business and derive income in the State of Kerala and so the order passed by the first-respondent has to be sustained.
7. To appreciate the rival contentions raised by learned counsel on both sides, it is beneficial to extract Section 127 of the Income-tax Act, 1961, which reads as follows :
'127. Power to transfer cases.--(1) The Director-General or Chief Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him.'
8. Section 5(7A) of the Indian Income-tax Act, 1922, contained a similar provision for transfer. It authorised the Commissioner of Income-tax to transfer the case from one Income-tax Officer to another, subordinate to him, and the Central Board of Revenue was authorised to transfer any case from one Income-tax Officer to another. In the said provision, an opportunity of hearing the affected has not been provided. But, under Section 127 of the Income-tax Act, the Legislature has introduced the concept of natural justice and the requirement of recording reasons for making an order of transfer and communication of the same to the assessee. It also gives power for transfer of a case from the jurisdiction of one Commissioner to another. It is also helpful to refer to the decided cases with reference to the scope of the said provision.
9. While dealing with the scope of Section 5(7A) of the Indian Income-tax Act, 1922, the apex court in the decision in Pannalal Binjraj v. Union of India : 31ITR565(SC) , has elaborately dealt with the necessity to give reasonings in the order, and has held as follows (page 586) :
'It is pointed that it will be next to impossible for the assessee to challenge a particular order made by the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, as discriminatory because the reasons which actuated the authority in making the order will be known to itself not being recorded in the body of the order itself or communicated to the assessee. The burden moreover will be on the assessee to demonstrate that the order of transfer is an abuse of power vested in the authority concerned. This apprehension is, however, ill-founded. Though the burden of proving that there is an abuse of power lies on the assessee who challenges the order as discriminatory, such burden is not by way of proof to the hilt. There are instances wherein the case of an accused person rebutting a presumption or proving an exception which will exonerate him from the liability for the offence with which he has been charged, the burden is held to be discharged by evidence satisfyingthe jury of the probability of that which the accused is called upon to establish ; (vide Rex v. Carr-Briant  1 K. B. 607), or in the case of a detenue under the Preventive Detention Act seeking to make out a case of want of bona fides in the detaining authority, the burden of proof is held not to be one which requires proof to the hilt but such as will render the absence of bona fides reasonably probable : (vide Ratanlal Gupta v. Dis-trict Magistrate of Ganjam, : AIR1952Ori52 also Brundaban Chandra Dhir Narendra v. State of Orissa (Revenue Department), ILR 1952 Cuttack 529). If, in a particular case, the assessee seeks to impeach the order of transfer as an abuse of power pointing out circumstances which prima facie and without anything' more would make the exercise of the power discriminatory qua him, it will be incumbent on the authority to explain the circumstances under which the order has been made. The court will, in that event, scrutinize these circumstances having particular regard to the object sought to be achieved by the enactment of Section 5(7A) of the Act as set out in para. 4 of the affidavit of Shri V. Gouri Shankar, Under Secretary, Central Board of Revenue, quoted above, and come to its own conclusion as to the bona fides of the order and if it is not satisfied that the order was made by the authorities in bona fide exercise of the power vested in them under Section 5(7A) of the Act, it will certainly quash the same. The standard of satisfaction which would have to be attained will necessarily depend on the circumstances of each case and the court will arrive at the conclusion one way or the other having regard to all the circumstances of the case disclosed in the record. The court will certainly not be powerless to strike down the abuse of power in appropriate cases and the assessee will not be without redress. The observations of Fazl Ali J., in State of West Bengal v. Anwar Ali Sarkar  3 SCR 284 at pp. 309-310 that the authority will say 'I am not to blame as I am acting under the Act' will not necessarily save the order from being challenged because even though the authority purported to act under the Act its action will be subject to scrutiny in the manner indicated above and will be liable to be set aside if it was found to be mala fide or discriminatory qua the assessee.'
10. While dealing with the scope of jurisdiction of the Commissioner or the Central Board of Revenue in passing the order of transfer, the apex court has held as follows (page 588) :
'It is, therefore, clear that the power which is vested in the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, under Section 5(7A) of the Act is not a naked and arbitrary power unfettered, unguided or uncontrolled so as to enable the authority to pick and choose one assessee out of those similarly circumstanced thus subjecting him to discriminatory treatment as compared with others who fall within the same category. The power is guided and controlled by the purpose which is to be achieved by the Act itself, viz., the charge of income-tax, the assessment and collection thereof, and is to be exercised for the more convenient and efficient collection of the tax. A wide discretion is given to the authorities concerned, for the achievement of that purpose, in the matter of the transfer of the cases of the assessees from one Income-tax Officer to another and it cannot be urged that such power which is vested in the authorities is discriminatory in its nature.
There is a broad distinction between discretion which has to be exercised with regard to a fundamental right guaranteed by the Constitution and some other right which is given by the statute. If the statute deals with a right which is not fundamental in character the statute can take it away but a fundamental right the statute cannot take away. Where, for example, a discretion is given in the matter of issuing licences for carrying on trade, profession or business or where restrictions are imposed on freedom of speech, etc., by the imposition of censorship, the discretion must be controlled by clear rules so as to come within the category of reasonable restrictions. Discretion of that nature must be differentiated from discretion in respect of matters not involving fundamental rights such as transfers of cases. An inconvenience resulting from a change of place or venue occurs when any case is transferred from one place to another but it is not open to a party to say that a fundamental right has been infringed by such transfer. In other words, the discretion vested has to be looked at from two points of view, viz., (I) does it admit of the possibility of any real and substantial discrimination, and (2) does it impinge on a fundamental right guaranteed by the Constitution Article 14 can be invoked only when both these conditions are satisfied. Applying this test, it is clear that the discretion which is vested in the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, under Section 5(7A) is not at all discriminatory.
It follows, therefore, that Section 5(7A) of the Act is not violative of article 14 of the Constitution and also does not impose any unreasonable restriction on the fundamental right to carry on trade or business enshrined in article 19(1)(g) of the Constitution. If there is any abuse of power it can be remedied by appropriate action either under article 226 or under article 32 of the Constitution and what can be struck down is not the provision contained in Section 5(7A) of the Act but the order passed thereunder which may be mala fide or violative of these fundamental rights. This challenge to the vires of Section 5(7A) of the Act, therefore, fails.'
11. The Division Bench of the Rajasthan High Court in Shri Rishikul Vidya-peeth v. Union of India , while dealing with the scope of Section 127 of the Act has held that in the matter of transfer of a case under Section 127 of the Act, the convenience of the assessee cannot override need of the Revenue for better investigation of the case.
12. The Division Bench of the Delhi High Court also in the decision in Sameer Leasing Co. Ltd. v. Chairman, CBDT : 185ITR129(Delhi) , while dealing with the scope of Section 127 of the Income-tax Act, has held as follows (page 133) :
'It was also contended, that the provisions of Section 127(2) of the Income-tax Act were ultra vires as it contained no guidelines on the basis of which the transfer could be effected. We are unable to agree with this contention. The power under Section 127 of the Act is to be exercised in public interest and in the interest of administration of the Act. In order to safeguard the interest of the assessee, an opportunity of being heard is granted and the section further requires reasons to be stated for transferring a case. The decision to transfer can be taken, in a case like the present, only if there is a concurrence between the two Commissioners of Income-tax who may be concerned with the transfer. When such high functionaries agree to the transfer and a show-cause notice is issued and reasons are contained in the order of transfer and those reasons appear to be germane to the transfer and show that the transfer has been made in the public interest and for a proper adjudication under the Act, we do not see how the impugned provision can be said to be ultra vires.'
13. Again, the Division Bench of the Patna High Court, while dealing with the scope of Section 127 of the Income-tax Act, in the decision in Jharkhand Mukti Morcha v. CIT : 225ITR284(Patna) has held as follows (page 294) :
'Section 127 does not contain the grounds on which a case is to be transferred. It has been left to the discretion of the authority which has to be exercised by it in public interest. It is neither possible nor desirable to enumerate the grounds which can be said to be valid grounds for transfer under Section 127 of the Act. It depends upon the facts of each case. However, the paramount consideration for transfer should be the public interest and the power is to be guided and controlled to serve the purpose of the Act. The power is not to be exercised on arbitrary or flimsy grounds nor the same should be exercised for extraneous or irrelevant considerations. If the transfer is being made for the purpose of coordinated investigation for the purpose of assessment and collection of tax in a more convenient or efficient way, then it will be a good ground for transfer.'
14. From the abovesaid decisions, it is clear that the transfer of a file can be made on the basis of public interest and to implement the provisions effectively. While doing so, the convenience of the assessee cannot stand in the way. But the said power should not be exercised arbitrarily or on flimsy grounds, nor for extraneous or irrelevant considerations. The said requirement can easily be assessed from the reasons given in the order, as it is mandatory on the part of the officer to give such reasons under Section 127 of the Income-tax Act.
15. So, now, this court has to test the validity as well as sustainability of the order on the basis of the abovesaid decided cases.
16. In the impugned order dated September 23, 1999, the Commissioner of Income-tax, Central-I, Chennai-34, exercising powers under Section 127 of the Income-tax Act, 1961, transferred the cases mentioned therein from the Assistant Commissioner of Income-tax, Central Circle-I (6), Chennai, to the Deputy Commissioner of Income-tax, Central Circle, Trivandrum. The reason given by the Commissioner in the impugned order is as follows :
'3. Shri G. Mohandas and the individual members of the group are still ordinary residents of Kerala. The company, Kerala Hotels Pvt. Ltd., is controlled and managed from Trivandrum only. The registered office ostensibly maintained at Chennai has virtually no establishment for maintaining books of account and other particulars required in connection with coordinated investigation. The business activities of the group as of now carried out are substantially controlled from Kerala. The properties and assets belonging to the group are all located in Kerala. The contemplated expansion and collaboration in business ventures in Tamil Nadu are not sufficient reasons for continuing the cases to be dealt with in Central Circle, Chennai.'
17. According to learned senior counsel appearing for the petitioners the. reasons stated in the impugned order are not correct, and the same has been passed with the mala fide intention. For the submission regarding mala fide intention of the Commissioner of Income-tax, this court does not find any material in support of the said vague averments in the affidavit. Except stating that the order impugned has been passed with the mala fide intention, no details nor materials in support of the said submission have been placed before this court. So, the said submission of learned senior counsel cannot be countenanced.
18. In this case, it is not in dispute that the petitioners were given opportunities to put forth their points of view in the matter of transfer. The petitioner has also filed a reply and on that basis the objections by way of reply have been considered by the Commissioner of Income-tax, in the impugned order. With respect to the jurisdiction of the Commissioner of Income-tax to pass the impugned order also, there cannot be any dispute. Such a procedure of transfer of files is contemplated only with a view to deal with the assessment files of an assessee by an Income-tax Officer who is in charge of the area where the assessee resides or carrying on business. While doing so, the officer who transfers the files should have in his mind about the organisation, advantage and convenience of the officials of the Revenue to effectively discharge their statutory functions and also there should not be any inconvenience or harassment of the assessee by such transfer. But no assessee can claim a basic right of-being assessed by one officer rather than another.
19. In the present case, originally the files were transferred as requested by the petitioners from the Assistant Commissioner of Income-tax, Central Circle, Trivaridrum, to Central Circle-I(6), Chennai, by notification dated August 8, 1997, as directed by the Commissioner of Income-tax, Central Circle-I(6), Chennai, for co-ordinated investigation. The said order was passed on the request made to the Director-General of Income-tax (Investigation), Chennai, by Shri G. Mohandas in his petition dated November 25, 1996, on the basis that he had shifted his residence permanently to Chennai, and his accountant and senior advocates were based at Chennai. But, subsequently, the Assistant Commissioner of Income-tax, Central Circle-I(6), Chennai, filed a report that the said Mohandas and the other individuals of his group are generally residing in Kerala, that the business of the group is carried on, controlled substantially from Kerala and the properties and assets belonging to the group are located in Kerala. It is also stated that though office is maintained at No. 31/2, III Cross Sterling Road, Chennai-34, there is only a watchman there and due to the same, the services of notices fixing hearing, etc., have become avoidably time consuming. It is also stated that the authorised representative is based at Trivandrum making it difficult for the Assessing Officer at Chennai to secure regular compliance. On the basis of the same, the Commissioner of Income-tax issued show-cause notice on August 30, 1999, with respect to his proposal to transfer the cases again to Trivandrum office. The said Mohandas, the petitioner, through his authorised representative filed a reply on September 8, 1999. After considering the said objection, on the grounds mentioned in the show-cause notice, the Commissioner of Income-tax passed the impugned order.
20. Learned senior counsel appearing' for the petitioners has submitted that the original order of transfer from Trivandrum to Chennai was passed as directed by the Director-General of Income-tax (Investigation) and so the Commissioner of Income-tax has no jurisdiction to pass the present order. The said submission cannot be accepted. The earlier order was also passed by the Commissioner of Income-tax, exercising powers under Section 127 of the Income-tax Act, 1961, and so it cannot be said that the Commissioner of Income-tax cannot pass the present order exercising powers under the same provision.
21. The main submission of learned senior counsel appearing for the petitioners is that most of the assessments have been completed after transfer in the Chennai office, and the assessees have already transferred the registered office to Chennai, and they are gradually closing down the business at Trivandrum. Further, the transfer of the registered office of Kerala Hotels Pvt. Ltd. has been approved by the Company Law Board, in the Company Petition No. 394/17/SRB of 1998, dated December 31, 1998, The petitioners have also produced the certificate of incorporation with respect to thecompany called Surya Mass Amusement Pvt. Ltd., to show that they have established the said company in Chennai. Learned senior counsel has also submitted that the petitioners have permanently shifted their residence to Chennai. On that basis, learned senior counsel has further submitted that no purpose will be served by retransferring the file to Trivandrum, and the authorities, also cannot discharge their official functions effectively.
22. On the other hand, learned standing counsel appearing for the respondents has submitted that the authorities found it very difficult to serve the notices in the Chennai office, and the authorised representatives of the petitioners are residing only at Trivandrum and so the authorities are not able to complete the assessments at all. On that basis, learned standing counsel has further submitted that the order of the Commissioner of Income-tax is well founded in retransferring the files to Trivandrum so as to enable the authorities to discharge their functions effectively. Further, the retransfer has been made only on the basis of the report of the Assistant Commissioner of Income-tax, Central Circle 1(6), Chennai-34. Though the impugned order does not speak about the proceedings of the Assistant Commissioner of Income-tax dated August 5, 1999, in the counter it is stated that the basis for passing the impugned order is the order of the Assistant Commissioner, and the said report was submitted by the Assistant Commissioner as called for by the Commissioner of Income-tax, Central-1(G), Chennai.
23. In the report of the Assistant Commissioner, it is stated that the asses-see is residing at Kerala, controlling the affairs of the business from there itself, and the entire business activities of the group are carried out only from Kerala, that the office being maintained at Madras is only for namesake, and there is no one manning the said office other than a watchman, and that because of the same, even a routine and ordinary job of serving the notices and fixing dates for hearing has become a time-consuming and problematic exercise. It is also stated that the authorised representative of the assessee is based in Trivandrum. He has also referred to the appeals and also transferring of files in huge and bulk. On that basis, the Assistant Commissioner, has submitted that the interests of the Revenue are being affected adversely.
24. Further, the Commissioner of Income-tax (Central), Chennai-34, has stated the following reasons to pass the impugned order :
(1) Shri G. Mohandas and the individual members of the group are still ordinary residents of Kerala ;
(2) The company, Kerala Hotels Pvt. Ltd., is controlled and managed from Trivandrum only ;
(3) The registered office alleged to have been established at Chennai is not maintaining any books of account and other particulars required in connection with co-ordinated investigation ;
(4) The properties and assets belonging fo the group are located inKerala ; and
(5) The assessee has not expanded or collaborated business ventures in Tamil Nadu.
25. In support of the impugned order, learned standing counsel appearing' for the respondents, as stated earlier, has submitted that the Assessing Officers are not able to proceed with assessment, as they could not serve the notices properly and get the assistance from the assessees. Though learned standing counsel has referred to certain orders, they will not help learned standing counsel to substantiate the submission. The earlier order of transfer was passed by the first respondent on August 8, 1997, during the accounting year 1997-98 (assessment year 1998-99), and all the proceedings submitted before this court are only with respect to the said period, Only during that period, the earlier order was passed by the first respondent, and so the said documents will not help the respondents to substantiate their case that the properties of the petitioners are in Kerala State. In spite of the said fact, the earlier order of transfer was passed by the first respondent on August 8, 1997. From the typed set of papers produced, I am able to see that till the date of the earlier order of transfer passed by the first respondent, the notices and orders of the respondents were addressed to the petitioners' address at Trivandrum, though copy has been marked to the Chennai address. But, after passing the said transfer order dated August 8, 1997, all the communications had been sent to the address at Chennai of the petitioners and not to the address at Trivandrum. Further, it is not the case of the respondents that those communications were not served, and they were returned to them for non-delivery. From the abovesaid facts, it is clear that the case of the respondents that the petitioners are not residing at Chennai cannot be accepted.
26. Though this court cannot sit in appeal on the reasonings, to find out whether any arbitrariness is involved in such transfer of files, this court has to find out the correctness of the reasonings given in the impugned order. When the petitioners are able to establish that the registered office had been transferred to Chennai, which has been approved by the Company Law Board, even though if the files have been transferred to Trivandrum, the respondents, as contemplated under Section 282 of the Income-tax Act, have to send the notices and other communications only to the registered office, which is situated at Chennai. Even for the individuals, the respondents have been sending communications only to the Chennai address of the petitioners, and so they have to continue the same, even if the files are transferred to the Trivandrum office. It is relevant to mention here the fact that either the files are in Chennai or Trivandrum, they are under the control of the Commissioner of Income-tax, Central. Merely because the assessees are not able to produce the account books for thepresent, it cannot be said that the files relating to the assessees have to be transferred to the Trivandrum office.
27. Moreover, the petitioners have now produced the details about the properties purchased in Tamil Nadu. As rightly submitted by learned senior counsel appearing for the petitioners, the properties purchased by the petitioners in Kerala State cannot be sold immediately, and they shall sell them in the course of the period. When the petitioners are able to establish that they have transferred their residence and the registered office to Chennai, no purpose would be served, if the assessment files are in Kerala. So, even in the interest of the Revenue, the files should be allowed to be in the Chennai office. So, the reasons stated in the impugned order cannot be sustained, as it will not serve the purpose. The reasons given in the impugned order cannot be said to be in the interest of public or in the interest of administration. Though the inconvenience of the assessees need not be taken as sole ground, it should also be taken into consideration. Since the power has been exercised arbitrarily and on flimsy grounds, the impugned order cannot be sustained.
28. Learned senior counsel appearing for the petitioners has also relied on the circular dated June 9, 1999, in support of his submission that prior approval of the Central Board of Direct Taxes was not obtained and so the impugned order cannot be sustained. In the said circular, it is stated that there is a ban on transfer of jurisdiction from one Assessing Officer to another (except with the prior approval of the Board) introduced during the last year and will remain in force till April 1, 2000. But, this Government circular has subsequently been modified in another circular dated July 27, 1999, the portion of which runs as follows :
'It is being, further clarified that where the process involves decentralisation of cases from Central charges to the jurisdictional Commissioners of Income-tax (CsIT) charges, prior approval of the Board is not necessary provided Permanent Account Numbers (PANs) have already been allotted to all such cases. To ensure this, Permanent Account Numbers of all such assessees should invariably be included in the order under Section 127 effecting decentralisation. However, decentralisation of cases should take place only after the search assessments have been completed and/or no investigations are pending in such cases.'
29. Even in the Circular No. 770 (see : 233ITR112(Mad) ), dated September 16, 1998, issued by the Government of India, it is stated that any instructions with reference to transfer of cases are purely administrative in nature and the same do not in any way curtail the statutory powers vested in the income-tax authorities by law, and, while no case would be transferred in a routine manner, in exceptional cases of sensitive nature or those requiring centralisation and decentralisation on priority basis or where court's directions are to be complied with, orders forchange of jurisdiction may be passed only after obtaining the prior approval of the Board. From the above, the submission of learned senior counsel appearing for the petitioners basing on the said circular dated June 9, 1999, cannot be countenanced.
30. For the reasons stated above, the impugned proceedings of the first respondent are set aside, and these writ petitions are allowed accordingly. But, this will not preclude the first respondent to pass an order in the later stage, if it is necessary, and the said order should be passed in accordance with law. No costs. Consequently, W. M. P. Nos. 24965, 24966, 26075 and 26076 and 26077 of 1999 are closed.