2017 (12) TMI 1233 - HC - Income Tax

Transfer of case u/s 127 - non existence of agreement between two jurisdictional Commissioners for passing the order of transfer - Held that - In the present case, it is not even the case made out in the show cause notice that the agreement as contemplated by the first part of clause (a) of sub section (2) of section 127 exists. The existence of such agreement between two jurisdictional Commissioners is a condition precedent for passing the order of transfer. Except for the request which came from the investigation office, Chennai of transferring the case, there is no reference whatsoever to any such agreement. Clause (b) of sub section (2) of section 127 provides for consequences when there is no such agreement. When the jurisdiction to pass an order of transfer under clause (a) of sub section (2) of Section 127 can be exercised only when there is such an agreement, the fact that such an agreement exists ought to have been stated in the the show cause notice as the same is a jurisdictional fact. Apart from the failure to mention the same in the show cause notice, the only stand of the revenue is that there is an agreement by implication. This stand is completely contrary to paragraph 5 of the decision of the Apex Court in the case of Noorul Islam Educational Trust (2016 (10) TMI 982 - SUPREME COURT). The decision in the case of Ramswaroop (2016 (5) TMI 491 - BOMBAY HIGH COURT) will also bind this Court for the reasons stated above. Thus in absence of any such agreement, the first respondent had no jurisdiction to pass the order of transfer.

Summary

Issues:
Challenge to transfer of case under Section 127 of the Income Tax Act, 1961 based on vagueness of show cause notice, breach of natural justice principles, merits of reasons assigned, and non-compliance with requirements of sub-section (2) of Section 127.

Analysis:

1. The judgment dealt with a writ petition challenging the transfer of a case under Section 127 of the Income Tax Act, 1961. The petitioner contended that the show cause notice was vague and the impugned order breached principles of natural justice by not considering the contentions raised in the reply. Additionally, the petitioner raised concerns about the reasons assigned for the transfer and alleged non-compliance with the requirements of sub-section (2) of Section 127.

2. The primary argument focused on the necessity of an agreement between the Principal Commissioners for the transfer under clause (a) of sub-section 2 of Section 127. The respondent argued that the agreement could be inferred from the material on record, citing a notice from the investigation office at Chennai requesting the transfer. The petitioner relied on legal precedents, including the decision in the case of Noorul Islam Educational Trust, emphasizing the requirement of a positive agreement between the jurisdictional Principal Commissioners.

3. The court referred to the case law, highlighting the importance of a clear agreement between the relevant Commissioners for a lawful transfer. The absence of a formal agreement, as specified in clause (a) of sub-section 2 of Section 127, was deemed crucial for the validity of the transfer order. The court emphasized that mere absence of disagreement does not equate to a valid agreement and that both Commissioners must consent to the transfer after due consideration.

4. The judgment underscored that the jurisdictional fact of the agreement must be explicitly stated in the show cause notice, as it is a prerequisite for the transfer order. The court rejected the respondent's argument of an implied agreement, emphasizing the need for a positive state of mind from both Principal Commissioners. The decision in the case of Noorul Islam Educational Trust was cited to support the requirement of a clear and explicit agreement for a lawful transfer.

5. Ultimately, the court held that in the absence of a valid agreement between the jurisdictional Principal Commissioners, the impugned order of transfer was quashed and set aside. The judgment emphasized the necessity of meeting the statutory requirements, particularly regarding the agreement between the concerned authorities, for a lawful transfer under Section 127 of the Income Tax Act, 1961.