2013 (3) TMI 153 - HC - Income Tax

Transfer of Petitioner s case from Assistant/Deputy CIT Pune to Assistant/Deputy CIT, Mumbai - search proceedings - Assessee against non providing of intimation of transfer - Revenue relied on Aamby Valley ltd. (2013 (3) TMI 138 - BOMBAY HIGH COURT) as as the Mumbai Commisionerate of Income Tax is seized of the matter the assessment could be completed here before 31/3/2011 - Held that - It is a settled position in law as held in the matter of Sahara Hospitality Ltd.(2012 (9) TMI 520 - BOMBAY HIGH COURT) that before an order of transfer of case is passed under Section 127(2) an opportunity of personal hearing is mandatory, wherever it is possible to do so. In the present matter the show cause notice proposing the transfer of the Petitioner s case from Pune to Mumbai was issued by the office of the Commissioner of Income Tax (Central) Pune on 8/2/2012. The Petitioner responded to the notice stating its objections to the proposed transfer on 8/2/2012 itself. The impugned order of transfer of the Petitioner case from Pune to Mumbai was passed by the Commissioner of Income Tax(Central) Pune on 2/8/2012. Thus there was sufficient time to grant a personal hearing to the Petitioner after the issue of the show case notice and before the passing of the impugned order 2/8/2012. Neither at the hearing nor in the affidavit in reply the respondent-revenue have contended that it was not possible to grant a personal hearing to the Petitioner. At the hearing the Respondent Revenue did not assert that any personal hearing was granted to the petitioner before the passing of the impugned Order dated 2/8/2012. The facts in the present case particularly the conduct of the Petitioner, is completely distinguishable as in impugned order of transfer passed on 2/8/2012 received by the Petitioner on 30/8/2012. The Petitioner filed the present petition on 11/10/2012 and moved this court for the first time on 23/10/2012. The Respondent thereafter sought time to file their affidavit in reply and the same though dated 14/12/2012 was filed on 13/2/2013. Thereafter this petition was adjourned from time to time and the matter was heard only on 25/2/2013 and 27/2/2013. In these circumstances, no complaint on account of the conduct of the Petitioner can be made as it had moved the Court with reasonable expedition unlike in the case of Aamby Valley(supra). Therefore in the present petition it cannot be said that the normal assessment for the assessment year 2010-11 is getting time barred in view of the delay on the part of the Petitioner in moving this Court as in the case of Aamby Valley(supra). Therefore, the decision in the matter of Aamby Valley(supra) would not apply to the facts of the present case. The entire proceeding transferring the case from Pune to Mumbai is in breach of principles of natural justice. The giving of notice containing the reasons for the proposed action is a basic postulate for compliance of the Audi Alteram Partem Rule. It is axiomatic that unless a party is informed of the reasons for the proposed action, it would be impossible for the noticee to put forth its point of view with regard to the reasons for the proposed action - thus quash and set aside the order of transferring the Petitioner s case from Pune to Mumbai - in favour of assessee.

Issues Involved:
1. Validity of the transfer order under Section 127(2) of the Income Tax Act, 1961.
2. Breach of principles of natural justice.
3. Requirement of personal hearing before passing the transfer order.
4. Adequacy of the show cause notice.
5. Potential prejudice to the revenue due to time-barred assessments.

Detailed Analysis:

1. Validity of the Transfer Order under Section 127(2) of the Income Tax Act, 1961:
The Petitioner challenged the order dated 2/8/2012 issued by the Commissioner of Income Tax (Central), Pune, which transferred the Petitioner's case from Pune to Mumbai. The transfer was suggested by the Assessing Officer of the Salunke group for coordinated investigation following a search on Uday Namdeo Salunke. The Petitioner objected to this transfer, citing administrative inconvenience, as their head office, trustees, and most educational institutions were based in Pune.

2. Breach of Principles of Natural Justice:
The Petitioner argued that the transfer order was in breach of natural justice principles because the show cause notice did not adequately detail the reasons for the proposed transfer, which were later extensively mentioned in the impugned order. The Respondent's affidavit in reply did not provide specific reasons in the show cause notice, leading to a failure in the Audi Alteram Partem Rule.

3. Requirement of Personal Hearing Before Passing the Transfer Order:
The Petitioner claimed that no personal hearing was granted before the transfer order, which is mandatory as per the precedent set in Sahara Hospitality Ltd. v. Commissioner of Income Tax-8. The Respondent contended that the Petitioner waived their right to a personal hearing by participating in the proceedings in Mumbai. However, the court held that a personal hearing is mandatory wherever possible, and the lack of such a hearing rendered the transfer order invalid.

4. Adequacy of the Show Cause Notice:
The show cause notice issued on 8/2/2012 did not specify the detailed reasons for the proposed transfer, which were later elaborated in the impugned order. The court emphasized that a show cause notice must contain adequate reasons to enable the noticee to effectively respond, ensuring compliance with the principles of natural justice. The failure to provide such details in the notice was a significant procedural lapse.

5. Potential Prejudice to the Revenue Due to Time-Barred Assessments:
The Respondent argued that setting aside the transfer order would prejudice the revenue as the assessment for the Assessment Year 2010-11 might become time-barred. However, the court distinguished this case from Aamby Valley Ltd. v. Commissioner of Income Tax-8, noting that the Petitioner had moved the court with reasonable expedition. The court also highlighted that the issuance of a notice under Section 153C of the Act could allow for assessment/reassessment even if the normal assessment period expired.

Conclusion:
The court quashed the transfer order dated 2/8/2012, citing the breach of principles of natural justice due to the lack of a personal hearing and inadequate show cause notice. The Petitioner's case was restored to the jurisdiction of the Assistant/Deputy Commissioner of Income Tax, Central Circle, Pune. The Petition was allowed with no order as to costs.

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