2019 (7) TMI 997 - HC - Income Tax

Transfer of case u/s 127 - transferred from one Commissionerate to another - requirement of hearing would include personal hearing - the principle of natural justice - SCN not mentioned the issue/adverse material relied for passing transfer order - HELD THAT - Neither of the decisions nor other decisions placed before us by the Counsel for the Petitioner, however, lays down the proposition in law that such requirement of hearing would include personal hearing. However, in facts of the present case, we are not inclined to test the impugned order on this ground, since admittedly the Department had offered such personal hearing, which the Petitioner did not avail of. We have noted that initially personal hearing was fixed on 16th May, 2017. The Petitioner conveyed his unavailability on said date and sought an adjournment. Hearing was re-fixed on 5th June, 2017, on which date also the Petitioner merely filed his written submissions and did not participate personally or through authorized representative. The Petitioner therefore, cannot complain that personal hearing though asked for, was not granted. Such hearing was granted, but not availed of. Despite such observations, we did not find that in the present case, the procedure adopted by the concerned authority in passing the impugned order passes the test of following the principles of natural justice which would include fair hearing. We have reproduced the entire show cause notice issued to the Petitioner, which merely conveyed to him that search and survey action was carried out in case of Ranka Group of cases and the Petitioner should therefore, submit an objection to his assessments being centralized. This show cause notice no where points out how the Petitioner was connected with the said Ranka Group and what useful purpose would be served in centralizing his assessments with the said group of assessee. Far more importantly, in the impugned order, the Pr. CIT of Mumbai has relied on various statements of the assessees of the said group, on the basis of which he came to the conclusion that it would be necessary to centralize the Petitioner's assessments with the said group of assessees also In this portion thus, the Pr. CIT referred to the statements of one Abhinandan Jain recorded u/s 132(4), suggesting that the Petitioner had inflated the script price of one Risa International Ltd., in connivance with other operators. The statements of other witnesses were referred to suggest that the Petitioner had received commission for such activities. According to him, such statements establish the involvement of the Petitioner in organizing artificial price rise in the shares of the said Company. Admittedly, none of these aspects were stated in the show cause notice, nor the statements or even the gist of the statements to the extent relevant, was provided to the Petitioner. The Petitioner therefore, had no opportunity to meet with such adverse material which the Pr. CIT pressed in service for passing the impugned order. Under the circumstances, the impugned order is quashed. In view of such conclusion, we need not examine the Petitioner's alternative contention that there was no concurrence between the two jurisdictional Commissioners about transfer of the assessments. The Writ Petition is accordingly disposed of.

Summary

Issues:
1. Challenge to the order transferring assessments for assessment years 2011-12 and 2012-13 under Section 127 of the Income Tax Act, 1961.
2. Breach of natural justice principles in passing the impugned order.
3. Lack of agreement between Principal Commissioners of Mumbai and Pune as required under Section 127.
4. Failure to provide a fair hearing, including the right to personal hearing.

Analysis:
Issue 1:
The petitioner challenged the order transferring assessments for the mentioned assessment years under Section 127 of the Income Tax Act, 1961. The petitioner contended that the reasons for transfer were not adequately communicated, and materials relied upon were not provided. The petitioner raised objections stating no connection with the Ranka group and sought a personal hearing. Despite being granted a hearing, the petitioner did not avail it, leading to the Principal Commissioner's decision to transfer the assessments.

Issue 2:
The court emphasized the importance of natural justice principles in the transfer of assessments. Referring to past judgments, the court highlighted the necessity of providing adequate reasons for proposed actions to enable effective objection/response. The court cited a case where an order was quashed due to a breach of natural justice principles, emphasizing the need for a fair hearing and consideration of objections before making a decision.

Issue 3:
The petitioner argued that there was no agreement between the Principal Commissioners of Mumbai and Pune, a requirement under Section 127. The court acknowledged the statutory provisions mandating a hearing and following natural justice in assessment transfers. It was noted that concurrence between jurisdictional Commissioners should be established before issuing a show cause notice, which was lacking in this case.

Issue 4:
The petitioner contended that the right to personal hearing was not granted, constituting a breach of natural justice. The court, however, noted that the Department had offered personal hearing opportunities, which the petitioner did not utilize. Despite this, the court found flaws in the procedure followed by the authority, as the show cause notice did not adequately explain the petitioner's connection to the Ranka group or the purpose of centralizing assessments. Additionally, the reliance on statements without providing them to the petitioner for a response was deemed unfair. Consequently, the impugned order was quashed due to these procedural deficiencies, and the petition was disposed of accordingly.