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Cachar Plywood Ltd. Vs. Income-tax Officer, a Ward and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 537(W) of 1973
Judge
Reported in[1977]109ITR470(Cal)
ActsIncome Tax Act, 1961 - Section 127; ;Constitution of India - Article 226
AppellantCachar Plywood Ltd.
Respondentincome-tax Officer, "a" Ward and ors.
Appellant AdvocateSamarjit Gupta, Adv.
Respondent AdvocateAjit Kumar Sen Gupta and ;Rupendra Mitra, Advs.
Excerpt:
- .....(torn) above, we beg to inform you that we have no objection to the transfer of our file from the income-taxofficer, 'a' ward, karimganj, to the income-tax officer, calcutta, as proposed by you, yours faithfully,for cachar plywood limited,sd/- illegible, principal officer' 3. the original of the said letter was also produced before me. a copy of the said letter was annexed to the affidavit-in-opposition. in answer to this in the affidavit-in-reply a rather complicated story had been set up by the petitioner throwing doubts about the authenticity of the said letter. it is not possible for me in this writ application to go into this question. on the materials produced it appears to me that the notice was given to the petitioner and the petitioner wrote back to say that there was no.....
Judgment:

Sabyasachi Mukharji, J.

1. In this application under Article 226 of the Constitution the petitioner challenges an order of transfer of its case from the Income-tax Officer, 'A' Ward, Karimganj, to the Income-tax Officer, Central Circle XXXIII, Calcutta. The said order was passed on the 23rd of December, 1972. The challenge is based on three grounds. It was urged, firstly, that no opportunity was given to the petitioner ; secondly, it was submitted that no reason had been recorded for the transfer and, thirdly, it was urged that the impugned order was passed mala fide. Section 127 of the Income-tax Act, 1961, provides as follows :

'127. Power to transfer cases.--(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 any Income-tax Officer or Income-tax Officers subordinate to him to any other Income-tax Officer or Income-tax Officers also subordinate to him and the Board may similarly transfer any case from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers :

Provided that nothing in this sub-section shall be deemed to require any such opportunity to be given where the transfer is from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers and the offices of all such Income-tax Officers are situated in the same city, locality or place :

Provided further that where any case has been transferred from any Income-tax Officer or Income-tax Officers to two or more Income-tax Officers, the Income-tax Officers to whom the case is so transferred shall have concurrent jurisdiction over the case and shall perform such functions in relation to the said case as the Board or the Commissioner (or any Inspecting Assistant Commissioner authorised by the Commissioner in thisbehalf) may, by general or special order in writing, specify, for the distribution and allocation of the work to be performed.

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

Explanation.--In this section and in Sections 121, 123, 124 and 125 the word 'case', in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year.'

2 . It was, therefore, necessary for the Board in this case to give, an opportunity to the assessee unless the Board thought that such opportunity was ,not possible, and to record the reasons before passing the impugned order. So far as giving of the opportunity is concerned, the original records were produced before me and from the same I find that the notice was given to the assessee. The said notice was served on the assessee on the 8th of November, 1972, and the original acknowledgment receipt bearing the rubber stamp of the petitioner was produced before me. I am not, therefore, satisfied that such opportunity as contemplated by Section 127 of the Income-tax Act, 1961, was not given to the assessee. What is more, in this case, a letter was written (torn) signed by the principal officer on behalf (torn) assessee dated the 21st of November (torn) to the following effect:

'To

The Under Secretary,

Central Board of Direct Taxes,

Govt. of India,

New Delhi.

Ref : Your notice under sec. (torn)

127(1) of the Income-tax

Act, 1961, issued under (torn)

file No. 185/141/72-IT(AI) (torn).

Dear Sir,

With reference to your notice quoted (torn) above, we beg to inform you that we have no objection to the transfer of our file from the Income-taxOfficer, 'A' Ward, Karimganj, to the Income-tax Officer, Calcutta, as proposed by you,

Yours faithfully,

for Cachar Plywood Limited,

Sd/- Illegible,

Principal Officer'

3. The original of the said letter was also produced before me. A copy of the said letter was annexed to the affidavit-in-opposition. In answer to this in the affidavit-in-reply a rather complicated story had been set up by the petitioner throwing doubts about the authenticity of the said letter. It is not possible for me in this writ application to go into this question. On the materials produced it appears to me that the notice was given to the petitioner and the petitioner wrote back to say that there was no objection. The objection letter which was sent by registered post and produced before me corroborates that position. The first contention urged in support of this application, therefore, cannot be accepted.

4. The second contention urged was that there was no recording of reasons. From the order sheet it appears as follows :

'Subject: Jurisdiction

Transfer of case.

M/s. Cachar Plywood Ltd.

The C.I.T. (Central), Calcutta, has proposed transfer of the above case from Assam charge, to (Central) Calcutta charge to facilitate investigation. The C.I.T., Shillong, has no objection in the matter. Since change of place is involved, it is necessary to issue show-cause notice ; fair letter put up for signature.

Sd/- Illegible,

15-9-72.

U.S. (A.I.)

Reference note dated. 15-9-72 above.

2. In reply to show-cause notice, the assessees have stated that they have no objection to the proposed transfer of their case. The case may, therefore, be transferred from the I.T.O., A-Ward, Karimganj, to the I.T.O. CCXXXIII, Calcutta, as proposed by the C.I.T. (Central), Calcutta.

'A' may please be approved.

Sd. Illegible,

16-12-72.

U.S. (A.I.)

Sd. Illegible, Sd. H. A. Shah,18-12-72 18-12-72,' U.S. (A.I.)

5. It appears from the reasons that the transfer was 'to facilitate the investigation'. The said reasons were recorded before the issue of the notice. After the letter of the petitioner was received as indicated above, it was recorded that as the assessee had no objection the transfer would be effected. It naturally incorporates the reason, that is to say, to facilitate the investigation. Therefore, in my opinion, the net result of these two orders indicate that the reason for transfer was to facilitate the investigation. In my opinion such a reason was properly recorded at the time of the transfer order. It, therefore, cannot be suggested that the condition precedent for the transfer was not complied with. The petitioner-company belongs to a group of companies. Therefore, to facilitate investigation of this case transfer was necessary. There is nothing on record to indicate that the impugned order was passed mala fide. In the premises, this contention also cannot be accepted. All the contentions urged in support of this application, therefore, fail.

6. The application is dismissed. The rule nisi is discharged. Interim order, if any, is vacated. There will be no order as to costs.

7. In view of the records produced before me, I am of opinion that stay of operation of this order is not merited.


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