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2011 (2) TMI 1242 - HC - Income TaxExercise of powers u/s 127(2) of Income-tax Act, 1961 - transferred IT cases of petitioners - from Dy. Commissioner of Income-tax, Circle-2, Jaipur to DC/ACIT, Rourkela (Orissa) Held that - it has not been controverted by the respondents authority that the notice to the assessees despite individual assessees, was never served and at no point of time, they were called upon at any stage in regard to centralization and transfer of their IT cases from Jaipur to Rourkela. Whereas the defence of respondents authority that Kamlajeet S. Ahluwalia was always representing all the assessees; as such no individual notice to the assessees was required to be served, in absence of material on record about authorizing Kamaljeet S. Ahluwalia to represent on behalf of other assessees named supra; or holding power of attorney on their behalf and they being individual assessees, their rights are seriously prejudiced in the absence of notice being individually served and opportunity of hearing being afforded to each of them, which is a mandate of law u/s 127(2) of IT Act, the very order impugned regarding transfer of IT cases qua petitioners named (supra) is held to be not sustainable and deserves to be set aside.
Issues Involved:
1. Legality of the transfer of Income Tax (IT) cases from Jaipur to Rourkela under Section 127(2) of the Income-tax Act, 1961. 2. Adequacy of notice and opportunity to be heard provided to individual assessees. 3. Allegations of arbitrary and extraneous considerations in the transfer decision. Detailed Analysis: 1. Legality of the Transfer of IT Cases: The main controversy revolves around the common order dated 26/09/2010, by which the Commissioner of Income Tax, Jaipur, transferred IT cases of various petitioners from the Deputy Commissioner of Income-tax, Circle-2, Jaipur, to the DC/ACIT, Rourkela. The transfer was executed under Section 127(2) of the Income-tax Act, 1961, following a search and seizure operation on 12/11/2009, which revealed alleged tax evasion by the Ahluwalia group. The transfer aimed to ensure coordinated investigation and proper assessment of the alleged concealed income. 2. Adequacy of Notice and Opportunity to be Heard: The petitioners argued that the show-cause notice was served only upon KJS Ahluwalia and not upon individual assessees, thus violating Section 127(2) of the IT Act and Article 14 of the Constitution. The court noted that KJS Ahluwalia was served notice on 11/01/2010, and he submitted objections which were considered by the Commissioner of IT, Sambalpur. However, no individual notice was served to other assessees like Pawan Ahluwalia, Prashant Ahluwalia, Smt. Indu Ahluwalia, and M/s Kaypee Enterprises. The court held that in the absence of individual notices and opportunities to be heard, the transfer order for these assessees was not sustainable. 3. Allegations of Arbitrary and Extraneous Considerations: The petitioners contended that the transfer order was influenced by the Chief Commissioner of IT, Bhubneshwar, and lacked independent application of mind by the Commissioner of IT, Jaipur. The respondents countered that the transfer was necessary for coordinated investigation and proper assessment, citing the need for physical inspection of mines and verification of expenses claimed under "Rejects Removal." The court found no evidence of extraneous considerations or ulterior motives behind the transfer decision for KJS Ahluwalia, M/s Kamal Sponge Power and Steel Ltd., and M/s Kamaljeet Singh Ahluwalia. The court upheld the transfer for these entities, noting that the decision was in the interest of revenue and proper adjudication of tax liability. Judgments: 1. Allowed Petitions: - CWP-13277/2010 (M/s Kaypee Enterprises) - CWP-13280/2010 (Smt. Indu Ahluwalia) - CWP-13299/2010 (Prashant Ahluwalia) - CWP-13303/2010 (Pawan Ahluwalia) The court quashed the transfer order dated 26/09/2010 for these assessees due to the lack of individual notices and opportunities to be heard. However, it allowed the respondents to initiate fresh proceedings according to law. 2. Dismissed Petitions: - CWP-13411/2010 (Kamal Jeet Singh Ahluwalia) - CWP-13410/2010 (M/s Kamal Jeet Singh Ahluwalia) - CWP-13272/2010 (M/s Kamal Sponge Power and Steel Ltd) The court dismissed these petitions, holding that the transfer order was justified and in the interest of revenue, with no evidence of arbitrary or extraneous considerations. Conclusion: The court's decision underscores the necessity of serving individual notices and providing opportunities to be heard under Section 127(2) of the IT Act. It also highlights the importance of independent application of mind by the transferring authority, free from extraneous influences.
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