2018 (7) TMI 1095 - HC - Income Tax

Transfer of case u/s 127 - Held that - Revenue has not placed anything on record to show, that CCIT, Pune has given a consent to request of CCIT (Central), Mumbai so as to constitute agreement as a pre-condition for invoking powers under Section 127. Absence of dissenting note from officer of equal rank who has to agree to the proposed transfer would not constitute Agreement, envisaged under Section 123(2)(a) of the Act. Thus, making the impugned order dated 2nd July, 2018 without jurisdiction.

Summary

Issues:
1. Jurisdiction of transferring a case from one location to another under Section 127(2) of the Indian Income-Tax Act, 1961.

Analysis:
The Writ Petition filed under Article 226 of the Constitution of India challenged the order transferring a case from Kolhapur to Mumbai, alleging lack of jurisdiction. The petitioner contended that the transfer was initiated without the required agreement between authorities of equal rank, as mandated by Section 127(2) of the Act. The petitioner objected to the transfer, citing difficulties, but the objections were overruled, and the case was transferred to Mumbai. The petitioner argued that the transfer proceedings were not based on an agreement between the authorities of equal rank, making the order illegal. The petitioner relied on relevant judgments to support the argument that the absence of a positive agreement renders the transfer order void.

In response, the Principal Commissioner of Income-Tax (2), Kolhapur, stated that proper communication and deliberations took place between the relevant authorities before passing the transfer order. The Centralized Committee decided to centralize cases for coordinated investigation, and all necessary steps were taken following the decision. The reply emphasized that there was no dissenting note from the authorities involved, indicating agreement and coordination among them. However, the petitioner argued that the absence of dissent does not equate to a positive agreement, as required by law.

The Court analyzed the contentions and the legal requirements under Section 127(2) of the Act. It noted that the absence of a formal agreement between the authorities of equal rank, as envisioned by the law, rendered the transfer order without jurisdiction. The Court referred to precedents emphasizing the need for a clear agreement before transferring a case. Based on the lack of evidence of a valid agreement, the Court quashed the impugned order and notice, ruling in favor of the petitioner. The judgment highlighted that the absence of dissent does not fulfill the legal requirement of a positive agreement for such transfers. The Court's decision rested on the fundamental legal principle that jurisdictional actions must adhere to the statutory provisions, including the necessity of a valid agreement between relevant authorities before transferring a case.

Therefore, the High Court of Bombay ruled in favor of the petitioner, quashing the transfer order and notice due to the absence of a valid agreement between the authorities of equal rank, as required by Section 127(2) of the Income-Tax Act.