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Mangal Chand and Sons Vs. Central Board of Direct Taxes and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberC.R. No. 2192(W) od 1979
Judge
Reported in[1985]155ITR344(Cal)
ActsIncome Tax Act, 1961 - Section 127
AppellantMangal Chand and Sons
RespondentCentral Board of Direct Taxes and ors.
Appellant AdvocateR.N. Bajoria, ;S.K. Bajoria and ;D. Mitra, Advs.
Respondent AdvocateA.C. Moitra and ;Ram Chandra Prasad, Advs.
Cases ReferredDwarka Prosad Agarwatta v. Director of Inspection
Excerpt:
- .....case to be presently discussed, i find that the writ petition cannot succeed. the reason for the proposedtransfer of the petitioner's case from calcutta to new delhi for facility of co-ordinated investigation was, in my view, sufficient to enable the assessee to make effective representation against the proposed transfer and in fact the petitioner made such a representation both in writing and verbally through a representative before the board. the petitioner understood the reason for the proposed transfer. in the reply to the show-cause notice, the petitioner did not raise the plea that in the absense of particulars and details of the alleged investigation as to the nature thereof and how the transfer of the petitioner's case would facilitate the investigations, it was not possible.....
Judgment:

Amitabha Dutta, J.

1. In this writ petition, the petitioner, Mangal Chand & Sons, a partnership firm having its head office and principal place of business situated at Calcutta, challenges the order dated November 15, 1978, passed under Section 127(1) of the I.T. Act, 1961, a copy of which is annexure-C to the writ petition by which the Central Board of Direct Taxes ('CBDT' for short) transferred the case of the petitioner from the Income-tax Officer ('ITO' for short), District V(1), Survey Ward, Calcutta, to the ITO, District III(18), New Delhi.

2. The petitioner's case may be briefly stated. The petitioner is regularly assessed under the provisions of the I.T. Act at Calcutta and all the relevant books of account in connection with the business of the petitioner are kept at Calcutta. A purported notice dated October 19, 1978 from respondent No. 3, Under Secretary, CBDT, proposed to transfer the case of the petitioner from the ITO, District V(1), Survey Ward, Calcutta, to the ITO, Dist. III( 18), New Delhi, and the reason for the purported transfer was stated to be facility of 'Co-ordinated Investigation'. The petitioner was asked if he had any objection to the proposed transfer, to appear for being heard or state his objections in writing. The petitioner sent a reply dated November 5, 1978 (annexure 'B' to the writ petition), objecting to the proposed transfer, since the entire business of the petitioner was being done in Calcutta and they did not have any connection whatsoever in Delhi. It was also stated in the written objection that if the case was transferred to Delhi, it would create unnecessary difficulties and harassment to the assessee as well as to the Department in getting the assessment completed in Delhi, since the entire records would have to be brought to Delhi and taxes to be paid in Delhi while the business would be carried on in Calcutta. The petitioner's representative also appeared before respondents Nos. 1 and/or 3 on November 6, 1978, and orally placed the objections to the proposed transfer. Thereafter, on or about March 7, 1979, the petitioner received the purported order dated November 15, 1978, passed by respondent No. 1 under Section 127(1) of the I.T. Act purporting to transfer the petitioner's case from the ITO, District V(I), Survey Ward, Calcutta, to the ITO, Dist. III(18), New Delhi. It was alleged in the said purported order that the transfer was effected in the interest of proper investigation and it would take effect from November 25, 1978. Thereafter, on March 9, 1979, the petitioner wrote to respondent No. 1 requesting it to withdraw the order of transfer on various grounds and demanding justice. The petitioner's case is that the purported order of transfer has been passed in gross violation of the principles of natural justice and/or the provisions of Section 127 of the I.T. Act and in contravention of Articles 14 and 19 of the Constitution.

3. Respondents Nos. 1 to 4 being the CBDT, ITO, District V(1), Survey Ward, Calcutta, Under Secretary, CBDT, and Union of India, respectively, have in their return opposed the writ petition stating that having regard to the interest of proper investigation, the petitioner's case along with the cases of 13 other assessees were transferred to the ITO, District III(18), New Delhi. The provisions of Section 127(1) of the Act were complied with. The reason for the proposed transfer was mentioned in the show-cause notice to the petitioner giving sufficient indication as to why the transfer of the petitioner's case was to be made (along with the cases of 13 other assessees) to facilitate co-ordinated investigation. There was no obligation on the part of the CBDT to disclose details of investigation that was to be made in those cases. The charge of non-compliance with the provisions of Section 127(1) of the Act is baseless as the reason for transfer was recorded in the order passed on November 15, 1978, and communicated to the petitioner. The question of contravention of Articles 14 and 19 of the Constitution does not arise at all.

4. Before proceeding further, it is necessary to quote the provisions of Sub-section (1) of Section 127 of the Income-tax Act, 1961, which is as follows:

'127. Transfer of cases from one Income-tax Officer to another.--(1). The 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 Income-tax Officer subordinate to him to another also subordinate to him, and the Board may similarly transfer any case from one Income-tax Officer to another :

Provided that nothing in this Sub-section shall be deemed to require any such opportunity to be given where the transfer is from one Income-tax Officer to another whose offices are situated in the same city, locality or place.'

5. Mr. Bajoria, the learned counsel appearing on behalf of the petitioner, has submitted that the impugned order of transfer is invalid as the alleged reason for the transfer, i.e., 'in the interest of proper investigation' is no reason at all and is a mere conclusion and that no particulars as to the alleged investigation or investigations having been furnished to show how the transfer was necessary, it was not possible for the petitioner to make effective representation against the proposed transfer in reply to the show-cause notice. The respondents proceeded in gross violation of the principles of natural justice and the provisions of Section 127 of the I.T. Act. In this connection, reliance has been placed on the following observation of the Supreme Court in Ajantha Industries v. Central Board of Direct Taxes : [1976]102ITR281(SC) :

'The reason for recording of reasons in the order and making these reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even this court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either onthe ground that it is mala fide or arbitrary or that it is based on irrelevant and extraneous considerations. Whether such a writ or special leave application ultimately fails is not relevant for a decision of the question.'

6. It is argued on behalf of the petitioner that in the present case the purported reason for the proposed transfer communicated to the assessee in the show-cause notice being no reason at all but merely the conclusion, the petitioner did not get reasonable opportunity of being heard in the matter and that the reason communicated in the impugned order of transfer served on the assessee is not at all sufficient so as to constitute compliance with the provisions of Section 127(1) of the Act. It is submitted that the Bench decision in Shantilal & Bros. Mangal Bhawan v. Union of India (Civil Writ Petition No. 84/1979) of the Rajasthan High Court, a copy of which has been annexed to the return, is of no assistance to the respondents as in that case, the writ petition was dismissed on the ground of gross mis-statement or concealment of facts on the part of the petitioner. It is argued that a single judge decision of the Delhi High Court in Sudhir Sareen v. CBDT (Civil Writ No. 212 of 1973), a copy of which has also been annexed to the return is distinguishable as in that case, the reasons for the transfer of the case from Faridabad to Delhi which were communicated to the assessee were (1) that the assessee had his office and residence in Delhi, and (2) that a transfer of his case was needed to facilitate detailed and co-ordinated investigation and in the counter-affidavit, the authorities disclosed that the petitioner had business and bank accounts in Delhi in five different banks and was managing as many as five concerns in Delhi. The learned counsel for the petitioner has submitted that, in the present case, the return of the respondents does not disclose any material to show the necessity for transfer of the case file of the petitioner from Calcutta to New Delhi.

7. On the other hand, Mr. Moitra, the learned counsel appearing for the respondents, has submitted that the petitioner's reply to the show-cause notice shows that the petitioner understood the reason for the proposed transfer of his case from Calcutta to New Delhi, viz., the facility of co-ordinated investigation, and that the reason recorded in the order of transfer and communicated to the petitioner that the transfer was effected in the interest of proper investigation is sufficient for the appropriate court to know why the transfer was made, in case it is challenged by the assessee. Mr. Moitra has submitted that in Ajantha Industries' case : [1976]102ITR281(SC) , the reason given in the notice proposing to transfer the cases of the petitioners was 'facility of investigation' and nothing more. He has relied on the following three decisions of different High Courts in support of his submissions that the Board has duly complied with the requirementsunder Section 127 of the Act in the instant case and that there is no substance in the writ petition. The first decision is Sri Rishikul Vidyapith v. Union of India 0065/1981 . In that case, the reason given in the show-cause notice for the proposed transfer of the assessee's case from Jaipur to Bombay was that the transfer was necessary to facilitate detailed and co-ordinated investigation at Bombay in the light of certain financial transactions conducted there and because connected cases were being assessed at Bombay. The reason given in the order of transfer was that the transfer was effected to facilitate co-ordinated investigation along with other connected cases. The Division Bench of the Rajasthan High Court negatived the challenge of the petitioner on the ground of violation of principles of natural justice and non-compliance with Section 127(1) of the Act. In the next case cited on behalf of the respondents, Dwarka Prosad Agarwatta v. Director of Inspection : [1982]137ITR456(Cal) involving transfer of a case from one ITO to another within the same city of Calcutta attracting the proviso to Section 127(1) of the Act, the learned judge, Sabyasachi Mukherjee J. (as his Lordship then was), while dealing with the decision in Sagarmull Spinning & Weaving Mills v. CBDT : [1972]83ITR130(MP) , wherein the court was of the view that the reason for transfer, viz., facility of investigation, should not be a sufficient reason, expressed dissent from that view and held that in appropriate cases, facility of investigation or the requirement of investigation could be a valid and substantial ground for transfer of a case from one office 'to another. The other case cited on behalf of the respondents is Assam Surgical Co. v. CBDT in which the reason for the proposed transfer from Gauhati to Delhi given in the show-cause notice was that search conducted in 'this group' revealed the activities of the firm in Delhi and facility of investigation of the cases connected with the Delhi group required transfer of the cases for co-ordinated investigation and assessment. In the final order of transfer, the reason recorded was substantially the same. On these facts, the Division Bench overruled the contention raised on behalf of the petitioner that there was no proper ground for transfer and that the assessee had not been given adequate opportunity to be heard.

8. Mr. Bajoria, learned counsel for the petitioner, has submitted in reply that in all the three cases aforesaid relied on by the respondents, more materials were mentioned in the show-cause notice to the assessee for the proposed transfer than in the present case.

9. After considering the submissions made on behalf of the parties and the facts and circumstances of the instant case to be presently discussed, I find that the writ petition cannot succeed. The reason for the proposedtransfer of the petitioner's case from Calcutta to New Delhi for facility of co-ordinated investigation was, in my view, sufficient to enable the assessee to make effective representation against the proposed transfer and in fact the petitioner made such a representation both in writing and verbally through a representative before the Board. The petitioner understood the reason for the proposed transfer. In the reply to the show-cause notice, the petitioner did not raise the plea that in the absense of particulars and details of the alleged investigation as to the nature thereof and how the transfer of the petitioner's case would facilitate the investigations, it was not possible for the petitioner to deal with the matter. Such a plea taken in paragraph 7 of the writ petition appears to be an afterthought. In the petitioner's reply to the show-cause notice (annexure 'B' to the writ petition), it was stated, inter alia, that the petitioner did not have any connection whatsoever in Delhi. But this plea has not been stated on oath in paragraph 4 of the writ petition although the other pleas taken in the said reply have been repeated in that paragraph. In Ajantha Industries' case : [1976]102ITR281(SC) , the only reason given for the proposed transfer in the show-cause notice issued to the assessee was 'facility of investigation'. The Supreme Court did not hold that the reason given in the notice to the petitioner was insufficient for which they were deprived of reasonable opportunity of being heard in the matter. The court quashed the order of transfer as no reason was recorded in the order of transfer itself and so no reason was communicated to the petitioners. The court held that the requirement of recording reasons under Section 127(1) is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee. The observation of the Supreme Court relied on by Mr. Bajoria has to be considered in the context in which it was made keeping in view the fact that the court did not hold that the reason given in the show-cause notice was vague or inadequate. In my view, in the present case, the petitioner understood the reasons for the proposed transfer and got reasonable opportunity of being heard in the matter. Thereafter, the reason for the transfer was recorded in the order itself and communicated to the petitioner. It cannot be said that the reason given in the order of transfer, viz., that the transfer was effected in the interest of proper investigation, cannot be said to be no reason or a mere conclusion. The very object of transfer may sometimes be defeated if the requirement to give detailed reason is imposed on the transferring authority. Inconvenience of the assessee cannot outweigh the need of the Revenue for proper investigation of the case. I, there/ore, overrule the contention raised on behalf of the petitioner and hold that the impugned order of transfer is valid.

10. In the result, the writ petition fails and the rule is discharged. No order is made as to costs.

11. On the oral prayer made on behalf of the petitioners, the operation of the order/judgment passed this day, he stayed for three weeks from date.


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