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Sahara India Commercial Corpn. Ltd. Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberG.A. Nos. 604 and 605 of 2008 and W.P. Nos. 1920 and 1921 of 2005
Judge
Reported in(2009)223CTR(Cal)361,[2009]178TAXMAN269(Cal)
ActsIncome Tax Act, 1961 - Sections 64(1), 64(2), 127, 127(1) and 127(2); ;Companies Act, 1956; ;Income-tax Act, 1922; ;Constitution of India - Article 141
AppellantSahara India Commercial Corpn. Ltd.
RespondentCommissioner of Income-tax
Appellant AdvocateJ.P. Khaitan and; A. Banerjee, Advs.
Respondent AdvocateDipak Shome and I.P. Mukherjee, Advs.
DispositionApplication dismissed against assessee
Cases ReferredSameer Leasing Co. Ltd. v. Chairman
Excerpt:
- ordersoumitra pal, j.1. these two writ petitions were filed by the petitioners challenging the show-cause notices and the orders of transfer passed under section 127 of the income-tax act, 1961 (for short 'the act'). since admittedly identical issues are involved, the petitions were heard analogously. however, for the sake of convenience facts in w.p. no. 1920, sahara india commercial corporation ltd. v. cit are referred to in this judgment.2. the writ petition having w.p. no. 1920 of 2005 was filed by sahara india commercial corporation ltd. a public limited company within the meaning of the companies act, 1956 having its registered office at kolkata challenging the legality and/or validity of a show-cause notice dated 30-6-2005 issued under section 127(2) of the act intimating the.....
Judgment:
ORDER

Soumitra Pal, J.

1. These two writ petitions were filed by the petitioners challenging the show-cause notices and the orders of transfer passed under Section 127 of the Income-tax Act, 1961 (for short 'the Act'). Since admittedly identical issues are involved, the petitions were heard analogously. However, for the sake of convenience facts in W.P. No. 1920, Sahara India Commercial Corporation Ltd. v. CIT are referred to in this judgment.

2. The writ petition having W.P. No. 1920 of 2005 was filed by Sahara India Commercial Corporation Ltd. a public limited company within the meaning of the Companies Act, 1956 having its registered office at Kolkata challenging the legality and/or validity of a show-cause notice dated 30-6-2005 issued under Section 127(2) of the Act intimating the proposal for transfer of the case of the petitioner from Kolkata to New Delhi and the order dated 9-8-2005 passed by the respondent No. 1 transferring the case of the petitioner from Deputy Commissioner of Income-tax, Circle B, Kolkata, respondent No. 2 to Deputy Commissioner of Income-tax, Central Circle 6, New Delhi and Assistant Commissioner of Income-tax, Central Circle 6, New Delhi, respondent Nos. 3 and 4 respectively. The matter was moved on 5-10-2005, when an order was passed, the relevant portion of which is as under:

The petitioner herein has challenged the validity and/or legality of the Order No. 7/2005-06, dated 9-8-2005 issued by the Commissioner of Income-tax, Kolkata-III, regarding Centralization of 'SAHARA' Group of Cases on the ground that the respondents herein did not consider that the principal place of business of the petitioner is at Lucknow and the petitioner along with other assessees of Sahara Group are assessed to income-tax at Lucknow.

Mr. Bajoria, learned Sr. Counsel appearing on behalf of the petitioner also referred to and relied upon the interim order already passed by the Division Bench of the Allahabad High Court, Lucknow Bench at Lucknow under similar circumstances.

Having heard the learned Counsel appearing for the parties and considering the facts and circumstances of this case and also considering the earlier order passed by the Division Bench of the Allahabad High Court, Lucknow Bench under similar circumstances at the instance of the other petitioners of the Sahara Group, I am of the opinion that a strong prima facie case has been made out for granting an interim order in this matter.

I am also of the opinion that the issues raised in this petition should be decided finally at an early date after granting an opportunity of filing affidavits to the parties.

Accordingly, the respondents are granted liberty to file their Affidavit-in-Opposition within 2 weeks after the long Puja Vacation; Affidavit-in-Reply, if any, thereto be filed within 2 weeks thereafter and let this matter be listed for hearing after filing of affidavits by the parties.

Let there also be an interim order restraining the respondents from giving any effect and/or further effect to and/or acting on the basis of and/or in furtherance of the impugned order dated 9-8-2005 being Annexure 'P-6' to this writ petition until further orders.

The respondents are also restrained from taking any step or further steps on the basis of and/or in pursuance of the impugned notice dated September 14, 2005 issued by the respondent No. 4 until further orders being Annexure 'P-4' (collectively) to this writ application until further orders.' [Emphasis supplied]

3. During the pendency of the writ petition an application being G.A. 604 of 2008 in W.P. 1920 of 2005 was filed on behalf of the Revenue praying for recalling and/or vacating the interim order passed on 5-10-2005 wherefrom it appears that the writ petitions filed by the Sahara Group of Companies before the Allahabad High Court, Lucknow Bench, which have been referred to in the interim orders dated 5-10-2005 have been finally decided by the judgment and order dated 8-2-2006 whereby those petitions have been dismissed. The said judgment has since been reported in Sahara Airlines Ltd. v. Director General of Income-tax (Investigation) : [2006]286ITR33(All) . It appears from the said application that from the said judgment a batch of Special Leave Petitions before the Supreme Court of India was preferred by the Sahara Group of Companies which too by order dated 3-3-2006 was dismissed. The order passed by the Apex Court is as under:

Heard learned Counsel for the petitioners. No merits.

The special leave petitions are dismissed.

4. Learned Senior Advocate appearing for the petitioner reiterating the statements in the writ petition submitted that the company is incorporated in Kolkata and the dispute is regarding transfer of file to New Delhi. In the matter decided by the Lucknow Bench of the Allahabad High Court in Sahara Airlines Ltd. 's case (supra) the question was whether assessment would be at Lucknow or at New Delhi and it has been held that it would be in New Delhi for investigation and assessment. In the instant case request was never made by the petitioner for transfer of its case either to New Delhi or to Lucknow. Nor such proposal was made earlier by the revenue. In or about 1996 an application for transfer of certain cases from Lucknow to New Delhi was filed because at that time the management of Sahara Group was contemplating to shift of its original place of business to New Delhi. On 20-11-1996 the Central Board of Direct Taxes (for short 'the Board') passed an order transferring certain cases to New Delhi with effect from 9-12-1996. On 9-12-1996 the Board modified its order and made it effective from 1-5-1997. However, since the Income-tax Department found it difficult to transfer the cases to New Delhi, the assessees concerned gave no objection for being continued to be assessed at Lucknow. In such circumstances, the Board by an order dated 29-4-1997 cancelled its order dated 20-11-1996 and the proposal to transfer the cases from Lucknow to New Delhi was dropped. In the case in hand, though there are no allegations of tax evasion, since the petitioner is having transactions with other companies, files are sought to be transferred to New Delhi on the ground of interlacing and interconnection of funds and of business activities. Moreover, the order impugned does not deal with the inconveniences highlighted in the reply dated 19-7-2005. Reliance was placed on the judgments in Dwarka Prosad Agarwalla Director of Inspection : [1982]137ITR456(Cal) ; Y. Moideen Kunhi & Co. v. ITO : [1993]204ITR29(KAR) ; Jharkhand Mukti Morcha v. CIT : [1997]225ITR284(Patna) , Power Controls v. CIT : [2000]241ITR807(Delhi) and Lords Distillery Ltd. v. CIT : [2007]294ITR147(Cal) in support of his submission. Submission was, though in the judgment in Sahara Airlines Ltd. 's case (supra) the petitioner has been referred to, since facts are different, said judgment is not applicable. Further, the judgment by the Allahabad High Court was on the basis of concession on behalf of the petitioner. Referring to the judgment of the Apex Court in Kunhayammed v. State of Kerala : [2000]245ITR360(SC) , it was contended that as the Apex Court while dismissing the Special Leave Petition did not give reasons, it is not a declaration under Article 141 of the Constitution of India.

5. Learned senior advocate appearing on behalf of the revenue submitted that while passing the order of transfer, law as postulated in Section 127 of the Act has been adhered to. The revenue had issued show-cause notice dated 30-6-2005. The petitioner had furnished written replies dated 19-7-2005 and 9-8-2005. Opportunity of hearing was granted. Thereafter, order dated 9-8-2005 was passed. Referring to the reply dated 19-7-2005 it was submitted that it does not deal with the ground of interlacing and interconnection of funds. Though it appears from the audited accounts of the assessee for the assessment year 2004-05 that there were interlacing and interconnection of business activities as there being joint ventures and transfer of funds within the Sahara Group, in the reply dated 19-7-2005 it has been stated to be as a 'sweeping observation'. Moreover, the annexure to the reply dated 9-8-2008 regarding the presence of employees and directors based in Kolkata and details of the bank accounts do not support the cause of the petitioner. Further, neither the petitioner sought the reasons for coordinated investigation nor has challenged the order impugned on the ground of perversity. Centralisation of cases is being done in public interest as there is mobilisation of public money. According to him, the show-cause notice, replies thereto and the averments in the writ petition are similar to the cases before the Allahabad High Court, Lucknow Bench and as in Sahara Airlines Ltd. 's case (supra) judgment has been passed upholding the order of transfer directing transfer of files from Lucknow to New Delhi, orders may be issued accordingly. Submission was though objection is on the ground of inconvenience, it appears from the reply dated 19-7-2005 that the petitioner in principle had agreed for transfer to Lucknow. Since it appears from the judgment in Sahara Airlines Ltd. scase (supra) the order was passed on the basis of submission of the petitioner, the argument that the petitioner had made concession is not tenable. Though it appears from the judgment in Sahara Airlines Ltd. 's case (supra) there was no allegation of tax evasion, yet the order of transfer has been upheld. It was contended that as the petitioner is an entity of the Sahara Group and as admittedly there has been interlacing of funds and interconnection of business activities within the said group, the impugned order of transfer for coordinated investigation and assessment is just and proper. Reliance was placed on the judgments in Pannalal Binjraj v. Union of India : [1957]31ITR565(SC) , Shri Rishikul Vidyapeeth v. Union of India 0065/1981 , Mangal Chand & Sons v. CBDT : [1985]155ITR344(Cal) , Sameer Leasing Co. Ltd. v. Chairman CBDT : [1990]185ITR129(Delhi) and Bhatia Minerals v. CIT : [1993]200ITR591(All) in support of his submissions.

6. The questions to be decided are: (i) whether the issues and facts in the writ petition are similar to, Sahara Airlines, that is, the matters before the Allahabad High Court, Lucknow Bench, (ii) Whether the order directing transfer only on the ground of interlacing and interconnection of funds and business activities of the Sahara Group is sufficient to warrant transfer; (iii) whether the petitioner in principle had agreed to the transfer of files; (iv) whether in the facts and circumstances respondent No. 1 was justified in passing the order of transfer.

7. In order to consider the issues it is necessary to refer to the provisions contained in Section 127 of the Act which is as under:

Section 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.

(2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Director-General or Chief Commissioner or Commissioner,--

(a) where the Directors-General or Chief Commissioners or Commissioners - to whom such Assessing Officers are subordinate are in agreement, then the Director-General or Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred 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, pass the order;

(b) where the Directors-General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director-General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf.

(3) Nothing in Sub-section (1) or Sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place.

(4) The transfer of a case under Sub-section (1) or Sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred.

8. Section 127 does not spell out under what facts and circumstances a transfer of a case can be made. However, in a case of inter-city transfer statute requires compliance of two requirements - first, to give the assessee a reasonable opportunity of hearing, wherever it is possible to do so and secondly, reasons with regard to transfer should be recorded. In the instant case there is no dispute that the principles of natural justice have been complied with and reasons have been recorded. Thereafter, reasons have been communicated.

9. Now turning to the facts I find that on 30-6-2005 the respondent No. 1 had issued the notice proposing transfer under Section 127 to the petitioner. The relevant portion of the said notice is as under:

'To

Dated: 30-6-2005

The Principal Officer,

M/s. Sahara India Commercial Corpn. Ltd.,

2A, Shakespeare Sarani,

Sahara Sadan,

Kolkata-700 071.

Sir,

Sub.: Notice under Section 127(2) of the Income-tax Act, 1961, Proposal for Transfer of your case to New Delhi.

The Sahara Group consists of several companies, firms and individuals which are presently assessed to tax at various places, including at Lucknow, Delhi and Kolkata. The Group has over a period of time diversified itself across business activities and across cities and towns of the country. There is, however, an interlacing and interconnection of funds and of business activities amongst the various entities of the Group.

The Sahara Group had earlier filed an application before the Chief Commissioner of Income-tax (Central)(North), New Delhi for the transfer of cases being assessed in the Central Circle, Lucknow on the ground that the administrative/control offices of most of cases of this Group has shifted to Delhi. It is a fact that presently most of the offices of the Group has shifted to Delhi. It is a fact that presently most of the offices of the group concerns, including that of M/s. Sahara Airlines Ltd. and of Sahara India (Firm), are located in Delhi and many of the companies are also assessed to tax at New Delhi.

In view of the above. I am of the opinion that for coordinated investigation and assessment, the cases of the Sahara Group should be centralized in New Delhi.

It is, therefore, proposed to transfer your case to New Delhi and centralise the same under the jurisdiction of Chief Commissioner of Income-tax (Central), New Delhi. You are hereby afforded an opportunity of being heard in the matter in terms of provisions of Section 127(2) of the Income-tax Act, 1961 and for this purpose, you may attend my office either personally or through your authorised representative on 19-7-2005 at 12-00 noon.

Yours faithfully,

Sd/-

Commissioner of Income-tax, Kolkata-III, Kolkata

10. Pursuant to the show-cause notice the petitioner through his representatives had appeared on 19-7-2005. Written replies dated 19-7-2005 and 9-8-2005 were filed. Thereafter, the order dated 9-8-2008 under Section 127(2) of the Act was passed. The relevant portion of the said order is extracted hereunder:

Order No. 7/2005-06*

Centralisation of 'Sahara' Group of Cases

In exercise of the powers conferred by Sub-section (2) of Section 127 of the Income-tax Act, 1961 (43 of 1961) and all other powers enabling me in this behalf, I, the Commissioner of Income-tax, Kolkata-HI, Kolkata, hereby transfer the case, particulars of which are mentioned in column '2' and '3' of the table given below from the Assessing Officer mentioned in column '4' to the Assessing Officer mentioned in column '5' thereof.

SI. Name of the assessee PAN of the Present Assessing Transferred toNo. Assessee Officer(1) (2) (3) (4) (5)1. M/s. Sahara India AADC56118F DCIT, Circle-8, DCIT, CentralCommercial Corpora Kolkata Circle-6,tion Ltd., Sahara New DelhiSadan, 2A,Shakespeare Sarani,Kolkata-700 071.Before passing this order, a reasonable opportunity was given to the assessee of hearing in the matter, through this office letter bearing No. CIT, Kol-III/ 2005-06/63/T-17 (Centralisation)/1294, dated 30-6-2005. In response, the assessee's representatives, Sri Jivan Ji Mehrotra, CA and Sri Manoj Keshri, CA appeared on 19-7-2005 and filed their submissions. Their submissions were considered and they were required to furnish information, inter alia, on the points, such as, total number of employees of the Company and those posted in Kolkata, list of directors and their addresses, details of Bank accounts, details of unsecured loans given to others exceeding Rs. 1 crore as on 31-3-2005 etc. In response the assessee's representative filed the desired information on 9-8-2005, however, in regard to the details of unsecured loans given to others and copies of accounts of Sahara India Ltd., Sahara India Financial Corpn. Ltd. and Sahara India (Firm) stated it was that the accounts are under audit and the figures are not readily available.

It was further seen from the return filed by the assessee for the assessment year 2004-05 that:

(a) Assessee has entered into joint ventures with various other companies of Sahara Group for development of Housing projects. The names of some of their companies are Sahara India Financial Corporation Ltd., Sahara India Corporation Ltd., Sahara India Investment Corporation Ltd., Sahara India International Corporation Ltd., Sahara India Mass Communication Ltd., Sahara India Developers Pvt. Ltd. and Sain Processing & Weaving Mills Ltd.

(b) The assessee is also a partner in the firm, Sahara India Mass Communication Ltd., Delhi.

(c) The assessee has also received unsecured loans through Optionally Fully convertible unsecured debentures (OFCD) amounting to over Rs. 4,000 crores as on 31-3-2004 and over Rs. 5,000 crores as on 30-3-2003.

(d) The assessee has also given advances and loans of over Rs. 2,000 crores as on 31-3-2004 and Rs. 1,089 crores as on 31 -3-2003 to various persons as stated earlier. The assessee was required to furnish information about the loans exceeding Rs. 1 crore advanced under the head 'Others'. However, the assessee has not furnished this information on the ground that its accounts are under audit even though it was made clear to the assessee's representative during the hearing on 19-7-2005 that in case information as on 31-3-2005 is not ready, the information as on 31-3-2004 can be furnished.

(e) From Note 10 of Schedule 21 of the accounts for the year ending 31-3-2004 filed with the assessee's return for the assessment year 2004-05, it is seen that loans to others included under the head 'Loans and Advances' included loans to subsidiary companies e.g., Sahara India International Corporation Ltd. of Rs. 465651440 and Sahara Airlines Ltd. Rs. 41741180.764.

(f) It is further seen from the details of investment of Rs. 3702 crores as on 31-3-2004 that the assessee made huge investments in a number of group companies such as Sahara Airlines Ltd. (Rs. 2890705459), Sahara India Corpn. Ltd. (Rs. 2797946000 2797946000 ), Sahara India Financial Corpn. Ltd. (Rs. 1420054367 1420054367 ), Sahara India International Corpn. Ltd. (Rs. 390183820), Sahara Sanchar Ltd. (Rs. 52130000) and many others.

(g) Out of the total 4371 number of employees as on 30-6-2005 only 28 are posted in Kolkata. Out of 8 Directors of the Company as on 30-6-2005, only one is based in Kolkata.

(h) The company is developing a real estate project approximately 8000 acres near Lonavala, District - Pune, Maharastra.

4. It is clear from what has been stated above that there is interlacing of fundand inter-connection of business activities among various entities of Sahara Group. There is also need of in-depth co-ordinated investigation of the case along with other group cases.

5. Therefore, I am of the opinion for co-ordinated investigation and assessment, the assessee's case deserved to be centralised with other cases of Sahara Group at Central Circle, New Delhi Accordingly the assessee's case is herewith transferred to DCIT, Central Circle-6, New Delhi, in exercise of powers vested in me under Section 127(2) of the Income-tax Act, 1961.

6. This Order will take effect from 9-8-2005.

Sd/-

(V.K. Bhatia)

Commissioner of Income-tax: Kol-III

Kolkata.'[Emphasis supplied]

11. In order to deal with the first question it is necessary to refer to the pleadings in the writ petition. In paragraph 5 of the petition it has been stated that the petitioner is a part of 'Sahara India Pariwar' which includes various companies, firms, charitable institutions individuals etc. There are more than 50 income-tax assessees in Sahara India Pariwar. Of the major assessees, 33 are assessed at Lucknow, 9 at Mumbai, 1 at Pune and 2 including your petitioner at Kolkata. Your petitioners state that the promoters of the Sahara India Pariwar are also assessed at Lucknow. The headquarters of the Sahara India Pariwar is located at Lucknow. In paragraph 6 the petitioner has pleaded about the facts regarding the filing of the writ petitions before the Allahabad High Court, Lucknow Bench challenging the legality and/or validity of the orders of transfer in respect of 35 notices issued by the Income-tax authorities at Lucknow/Kanpur proposing to transfer and centralise the cases of the assessees of the Sahara India Pariwar from Lucknow to New Delhi on the ground of co-ordinated investigation and assessment, and has referred to the interim orders passed on 25-8-2005; 5-9-2005 and 28-9-2005 staying the operation and enforcement of the order of transfer. Copies of the interim orders have been annexed to the writ petition. In the said paragraph 'Leave' has been sought for 'to refer to the records to the said various proceedings at the time of hearing of this application, if necessary,....' That the petitioner has relied on the 'said various proceedings' is evident from the order dated 5-10-2005 wherein reference has been made to and reliance was placed on the interim orders passed by the Allahabad High Court. Thereafter, paragraphs 7 to 20 deal with the facts and the submissions in support of the challenge to the order of transfer. That the facts stated in this petition are similar to the cases before the Allahabad High Court is evident from the pleadings in paragraph 21 of the writ petition which are as under:

Your petitioner states that it is apparent from the facts and circumstances of the instant case that the entire actions of the Income-tax Department for transfer of the 35 cases from Lucknow and two cases from Kolkata including that of your petitioner were a concerted move actuated by extraneous considerations. All the cases were sought to be transferred to New Delhi where the assessees concerned do not have the infrastructure or manpower to handle income-tax cases with the object of subjecting them to great harassment, inconvenience, hardship and costs. Your petitioner states that the Income-tax Authorities are fully aware of the fact that the books of account and records of the assessees whose cases are sought to be transferred are not maintained at New Delhi. The Income-tax Authorities are also aware that only five companies are assessed at New Delhi which are also either dormant or not carrying on any business worth the name and having mainly income by way of interest/income from investment. Your petitioner states that the 35 assessees at Lucknow whose cases were sought to be transferred have already approached the Hon'ble Allahabad High Court, Lucknow Bench, and the Hon'ble High Court has been pleased to stay the operation of the purported orders of transfer. Your petitioner states that in any view of the matter, it is apparent that the move of the Income-tax Authorities to centralise all the cases at New Delhi has failed. Your petitioner states that the said purported order dated 9-8-2005 passed by the respondent No. 1 is liable to be quashed and/or set aside on this ground alone.

11.1 It is clear from the submissions as noted that the interim order passed by the Allahabad High Court was the sheet anchor for challenging the order of transfer and it had prompted the petitioner to move the writ petition. Success or failure of a writ petition depends on its ultimate outcome. An interim order is passed usually at the nascent stage considering the balance of convenience and inconvenience. In such context the word 'failed' is a misnomer. Yet the said interim orders had prompted the petitioner to submit 'that the move of the Income-tax Authorities to centralise all the cases in New Delhi had failed' and order of transfer dated '9-8-2005 passed by the respondent No. 1 is liable to be quashed and/or set aside on this ground alone'. Besides, as noted, while passing the interim order on 5-10-2005, the learned Single Judge had considered 'the earlier order passed by the Division Bench of the Allahabad High Court, Lucknow Bench under similar circumstances at the instance of the other petitioners of the Sahara Group.' Moreover, the stand of the petitioner that the proposed transfer of file on the ground of interlacing and interconnection of funds and business activities 'are in the nature of a sweeping observation' (reply dated 19-7-2005) is similar to the stand taken by the group as is evident from paragraph 8 of the judgment in Sahara Airlines. The objection on the ground of 'inconvenience' pleaded in the instant writ petition was also a ground taken before the Allahabad High Court. In Pannalal Binjraj (supra) it has been held by the Apex Court that:

There is no fundamental right, in an assessee to be assessed in a particular area or locality. Even considered in the context of Section 64(1) and (2) of the Act this right which is conferred upon the assessee to be assessed in a particular area or locality is not an absolute right but is subject to the exigencies of tax collection.

Though, in Pannalal Binjraj the Supreme Court was considering the provisions contained in the Income-tax Act, 1922, the settled proposition of law is that the inconvenience of an assessee should give way to the exigencies of tax collection. Therefore, a comparison of the issues and pleadings in the present case with the cases before Allahabad High Court and the order passed on 5-8-2005 by the learned Single Judge leaves no manner of doubt that the issues are identical.

12. On the question whether the impugned order directing transfer only on the ground of interlacing and interconnection of funds and business activities of the Sahara Group is sufficient to warrant transfer, it is to be noted that the notice dated 30-6-2005 proposing transfer of the case to New Delhi was issued on three grounds - (i) that there is an interlacing and interconnection of funds and of business activities amongst the entities of the Sahara Group, (ii) that the Sahara Group had earlier filed an application before the Chief Commissioner of Income-tax (Central)(North), New Delhi for the transfer of cases being assessed in the Central Circle Lucknow on the ground that administrative/control offices of most cases of the Group had shifted to Delhi, and (iii) that at present most of the offices of the Group including that of M/s. Sahara Airlines Limited and Sahara India (Firm) are located at Delhi and many companies are also assessed at Delhi. Admittedly transfer of the case has been directed only on the ground of interlacing of funds and interconnection of business activities among various entities of the Sahara Group. I find from the order impugned that the petitioner is a partner in Sahara Mass Communication Limited, Delhi, The petitioner had received unsecured loans through optionally fully convertible unsecured debentures and had given advances and loans to various persons. It has made investments in Sahara Airlines Limited, Sahara India Corporation Limited, Sahara India Financial Corporation Limited, Sahara Sanchar Limited and in many other institutions. The petitioner has entered into joint ventures with various other companies of Sahara Group for development of housing projects. As on 30-6-2005 out of 4371 employees only 28 are posted in Calcutta and on the same date only one out of eight directors are based in Kolkata. The Company is developing a real estate project near Lonavala in Maharashtra. As noted that though observation regarding interlacing and interconnection of funds and business activities amongst the various entities of the group have been stated to be as 'sweeping observation' and in the reply dated 9-8-2005 it has been stated the transactions 'have been made in the usual course of business after complying with all provisions of law and have been duly reflected and disclosed in the accounts', in the writ petition there is no averment that the findings in the order impugned are perverse. These financial transactions, whether intercorporate transactions or interlacing of funds and interconnection of business activities amongst the various entities of Sahara Group, have led the Revenue to propose and, thereafter, in the absence of denial of facts, to pass an order of transfer under Section 127(2) of the Act for the purpose of co-ordinated investigation. Co-ordination in this context would mean bringing in the assessment records of all the companies, firms and individual assessees of the Sahara Group including that of the petitioner under one umbrella - that is, under one single Assessing Officer to have a correct picture of the transactions after investigation. In the instant case it assumes significance since there are intercorporate transactions within the Sahara Group. What is important is that with the exception of Y. Moideen Kunhi's case (supra), in all other judgments cited Courts have consistently upheld in all cases belonging to a group, co-ordinated investigation as valid in public interest. Therefore, in the cases of a group, co-ordinated investigation is a relevant ground for transfer. In the present case since there is neither any denial of the facts by the petitioner who is a member of the Sahara Group nor are the reasons for transfer unconvincing and vague, the order directing co-ordinated investigation under a single Assessing Officer cannot be called into question even in the absence of allegation of evasion of tax, because the twin requirements under Section 127 of the Act have been complied with. It is to be noted that in Pannalal Binjraj 's case (supra) it has been held 'Even so the exigencies of tax collection have got to be considered and the primary object of the Act, viz., the assessment of income-tax, has got to be achieved.' The transfer of file for co-ordinated investigation is a step in achieving the said primary object. With regard to the judgments cited I find in Dwarha Prosad Agarwalla's case (supra) it has been held that 'in appropriate cases facility of investigation or the requirement of investigation could be a valid and substantial ground for transferring the case from one officer to another.' With the sole exception in Y. Moideen Kunhi, similar views have been taken in Jharkhand Mukti Morcha's case (supra), in Power Controls' case (supra) and in Sameer Leasing's case (supra). Since in Lords Distillery's case (supra) it was contended that the petitioner had no connection with Radico Khaitan Limited, the facts are not applicable to the instant case. However, the facts and circumstances leading to transfer for the purpose of coordinated investigation is open to judicial scrutiny. In the instant case, as evidently facts have gone uncontroverted and unchallenged and as the twin requirements under Section 127 have been complied with, the action of the revenue cannot be faulted just because transfer has been directed only on one ground out of the three as proposed since it has been found to valid and cogent.

13. In order to answer the third question whether the petitioner has in principle agreed to the transfer, it is necessary to refer to the penultimate paragraph of the letter dated 19-7-2007 which is as under:

However, if your honour desires the case may be centralised at Kolkata itself as the other group cases are being assessed at Central Circle, Lucknow which will, in turn, facilitate the so called co-ordinated investigation and assessment as proposed by your honour or in the alternative they may be transferred and centralized at Lucknow where the Command Office of the Group is situated and the Directors etc. are placed and other group concerns are being assessed.' [Emphasis supplied]

14. It is evident though transfer of files to New Delhi was objected to, in principle the petitioner was not averse to transfer and centralisation at Lucknow. However, as the challenge to the transfer of files from Lucknow to New Delhi in Sahara Airlines Ltd.'s case (supra) by other entities of the group has failed and issues have been found to be identical, the challenge on this ground has no merit.

15. Section 127 does not spell out the class or classes of cases or grounds on which an order of transfer can be effected. Statute postulates compliance of two requirements - reasonable opportunity of hearing wherever it is possible to do so and recording of reasons of such transfer. Evidently, in the instant case both the requirements under the statute have been complied with. Thus, transfer depends on the facts of each case. Therefore, so far as the fourth question is concerned as the issues are similar to Sahara Airlines and as the observations and findings in the impugned order have gone unchallenged, in my view, the respondent No. 1 was justified in passing the order of transfer of files from Kolkata to New Delhi.

16. Therefore, the writ applications fail. Interim orders are vacated. Applications are disposed of accordingly. No order as to costs.


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