2010 (9) TMI 714 - HC - Income Tax

Transfer of case - section 127 - recording of reasons before transfer - search and seizure - Held that - In the facts of the present case, prima facie it appears that the reasons have not been recorded by the CIT before passing the impugned order under section 127(2) of the Act as nothing has been placed on record to indicate anything to the contrary; if at all reasons have been recorded, the same have not been communicated to the petitioner; and last but not least no opportunity of hearing been afforded to the assessee before passing the impugned order - As a natural corollary, the impugned notice dated 23-2-2010 under section 153C of the Act which has been issued by the respondent No. 2, Asstt. CIT-1(1), Bhopal, who derives jurisdiction by virtue of the impugned order dated 11-11-2009 also cannot be sustained - Writ petition is allowed

Summary

Issues Involved:
1. Legality of the order dated 11th November 2009 transferring the petitioner's case from Ahmedabad to Bhopal under Section 127(2) of the Income Tax Act.
2. Compliance with the statutory provisions of Section 127(2) of the Income Tax Act.
3. Validity of the notice dated 23rd February 2010 issued under Section 153C of the Income Tax Act.

Detailed Analysis:

1. Legality of the Order Dated 11th November 2009:
The petitioner challenged the order dated 11th November 2009, which transferred the case from Ahmedabad to Bhopal. The petitioner argued that the order was passed without giving a reasonable opportunity of being heard and without recording reasons, thus violating Section 127(2) of the Income Tax Act. The court found that the order did not satisfy the mandatory requirements of Section 127(2), as it was passed without affording the petitioner an opportunity to be heard and without recording reasons.

2. Compliance with Section 127(2) of the Income Tax Act:
The court examined whether the order dated 11th November 2009 complied with Section 127(2) of the Income Tax Act. The provision mandates that the concerned authority must give the assessee a reasonable opportunity of being heard and must record reasons for the transfer. The court noted that the CIT, Ahmedabad-III, did not provide the petitioner with an opportunity to be heard before making the impugned order. Additionally, the order lacked recorded reasons for the transfer. The court emphasized that the recording and communication of reasons are mandatory requirements under Section 127(2), as established in the Supreme Court case of Ajantha Industries v. CBDT [1976] 102 ITR 281.

3. Validity of the Notice Dated 23rd February 2010:
The notice dated 23rd February 2010, issued under Section 153C of the Income Tax Act by the Asstt. CIT-1(1), Bhopal, was also challenged. The court held that since the jurisdiction of the Asstt. CIT-1(1), Bhopal, was derived from the impugned order dated 11th November 2009, which was found to be invalid, the notice under Section 153C could not be sustained.

Conclusion:
The court concluded that the impugned order dated 11th November 2009 and the notice dated 23rd February 2010 were invalid due to non-compliance with the mandatory provisions of Section 127(2) of the Income Tax Act. The court quashed and set aside both the order and the notice, and awarded costs of Rs. 5,000 to the petitioner.