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2021 (5) TMI 739 - HC - Income TaxCentralization of the cases - Transfer of case from one tribunal to another i.e from ITAT Bangalore and ITAT Mumbai - Transfer of cases u/s 127 - Institution of cases - Assessment u/s 153A - search and seizure action carried out in the business premises of the petitioner under section 132 was invalid as no satisfaction note was recorded prior to the search and seizure as is the requirement under section 132 - HELD THAT - Though provisions of the Civil Procedure Code, 1908 may not be applicable to the Act as well as to proceedings before the Tribunal, nonetheless as a matter of principle, we can advert to section 20 thereof, which says that every suit shall be instituted in a court within the local limits of whose jurisdiction the defendant or in the case of multiple defendants, each of the defendants resides or carries on business or personally works for gain. This principle finds manifestation in clause 4 of the Standing Order. Whether it be a suit or an appellate proceeding before the Tribunal the place of institution of the suit would be where the defendants reside or works for gain and in case of appeal under the Tribunal Rules where the AO is located. Merely because for assessment years prior to assessment year 2005-06, the Assessing Officer was at Mumbai or for the subsequent assessment years i.e. subsequent to assessment year 2008-09 the Assessing Officer is at Mumbai would be no ground to transfer a pending appeal or appeals pertaining to assessment years 2005-06 to 2008-09 from one Bench of the Tribunal in a different State / Zone to another Bench of the Tribunal in another State / Zone. Petitioner has explained and it has not been denied that post search and seizure assessments for the four assessment years under consideration were carried out in Bangalore along with other cases following centralization of assessment. Now for assessment years subsequent to assessment year 2008-09 the assessment jurisdiction of the petitioner has been reverted back to Mumbai and conferred upon DCIT1(2)(2), Mumbai. This would not mean DCIT-1(2)(2) Mumbai to be the Assessing Officer for the four assessment years i.e. assessment years 2005-06, 2006-07, 2007-08 and 2008-09 in respect of which Assistant Commissioner of Income Tax, Central Circle-2(1), Bangalore continues to be the AO and as a consequence the respondent in the subject appeals; DCIT-1(2)(2), Mumbai is not and cannot be the respondent in the said appeals. Petitioner is the appellant in all the four subject appeals before the Bangalore Bench of the Tribunal. In other words it is the petitioner who had filed the appeals. Petitioner does not want the appeals to be transferred from Bangalore to Mumbai and wants to prosecute the appeals at Bangalore where we have seen the appeals were rightly filed. Ordinarily if a court has jurisdiction to hear a case, the case ought to proceed in that court only. This principle can certainly be extended to appeals before the Tribunal. In such circumstances transfer cannot be forced upon the appellant i.e. the petitioner against its express objection. As seen the application for transfer was filed by the Commissioner of Income Tax-1, Mumbai before the Vice President of the Tribunal on 12.08.2013; subsequently, Chief Commissioner of Income Tax (OSD), Mumbai addressed a letter dated 11.04.2019 to the President of the Tribunal requesting transfer of the appeals from Bangalore Bench to Mumbai Benches. Neither the Commissioner of Income Tax-1, Mumbai nor the Chief Commissioner of Income Tax (OSD), Mumbai who had filed the applications for transfer are respondent in the subject appeals. Therefore not being parties to the appeals, they were not competent to make the applications for transfer. In such circumstances the applications for transfer of appeals were invalid and on such invalid applications no order for transfer of appeals could have been passed. In so far the contention of the respondents that it is not open to the petitioner to object to transfer of the appeals because it did not object to transfer of jurisdiction under section 127, in our view the said contention has got no substance at all. Section 127 of the Act deals with transfer of any case from one AO to another AO. As deals with transfer of assessment jurisdiction from one AO to another AO. While certainly the appropriate authority under section 127 has the power and jurisdiction to transfer a case from one Assessing Officer to another Assessing Officer subject to compliance of the conditions mentioned therein, principles governing the same cannot be read into transfer of appeals from one Bench of the Tribunal to another Bench that too in a different State / Zone, for the simple reason that it is not a case before any AO. Petitioner may have expressed no objection to transfer of assessment jurisdiction from the AO at Bangalore to the AO at Mumbai after assessment for the assessment years covered by the search period, but that cannot be used to non-suit the petitioner in his challenge to transfer of appeals from one Bench of the Tribunal to another Bench in a different State and in a different Zone. The two are altogether different and have no nexus with each other. So, the preliminary objection raised on behalf of the respondents on this count has to fail. Having regard to the mandate of clause (2) of Article 226 of the Constitution of India, this Court certainly has the jurisdiction to entertain the writ petition. In so far filing of appeal instead of writ petition is concerned, a careful reading of section 260A(1) would go to show that an appeal shall lie to the High Court from every order passed in appeal by the Tribunal if the High Court is satisfied that the case involves a substantial question of law. Mr. Desai has laid great emphasis on the expression every order to contend that an appeal shall lie from the order dated 19.03.2020 passed by the Tribunal as well. We are afraid we cannot accept such a submission. Every order in the context of section 260A would mean an order passed by the Tribunal in the appeal. In other words, the order must arise out of the appeal; it must relate to the subject matter of the appeal. The order with which we are concerned is order dated 19.03.2020. It is not an order on the merit of the appeal. In other words, it is not an order passed in the appeal. It is an order related to transfer of the appeal. Such an order would be beyond the scope and ambit of sub section (1) of section 260A of the Act. Having regard to the discussions made above and upon thorough consideration of the matter, we are of the view that both the orders dated 19.03.2020 and 20.08.2020 are wholly unsustainable in law and are accordingly set aside and quashed.
Issues Involved:
1. Validity of the transfer of appeals from the Bangalore Bench to the Mumbai Benches of the Income Tax Appellate Tribunal. 2. Authority and jurisdiction of the President of the Income Tax Appellate Tribunal to transfer appeals. 3. Compliance with principles of natural justice and procedural fairness. 4. Maintainability of the writ petition before the Bombay High Court. Issue-wise Detailed Analysis: 1. Validity of the transfer of appeals from the Bangalore Bench to the Mumbai Benches of the Income Tax Appellate Tribunal: By filing this petition under Article 226 of the Constitution of India, the petitioner sought quashing of the order dated 19.03.2020 passed by the Income Tax Appellate Tribunal, Bangalore Bench, and the order dated 20.08.2020 passed by the President of the Income Tax Appellate Tribunal, directing that the appeals be transferred from Bangalore to Mumbai. It was argued that the transfer request was made to avoid compliance with the direction of the Bangalore Bench for the production of a satisfaction note authorizing the search and seizure. The contention was that the plea of transfer was not a serious plea but rather a casual submission. The Bangalore Bench of the Tribunal noted that the plea of transfer raised by the revenue was not serious, and the departmental representative failed to produce the satisfaction note as directed. The High Court observed that the power to transfer pending appeals from one Bench to another Bench outside the headquarters in a different state is not traceable to section 255 of the Income Tax Act, 1961. The court found that the order dated 19.03.2020 passed by the Bangalore Bench of the Tribunal and the order dated 20.08.2020 passed by the President of the Tribunal were unsustainable in law and accordingly set them aside. 2. Authority and jurisdiction of the President of the Income Tax Appellate Tribunal to transfer appeals:The Bangalore Bench of the Tribunal relied upon section 255(5) of the Act, which provides that the Appellate Tribunal shall have the power to regulate its own procedure and the procedure of Benches thereof, including the places at which the Benches shall hold their sittings. The High Court, however, held that this provision does not confer the President of the Tribunal with the jurisdiction to transfer a pending appeal from one Bench to another Bench outside the headquarters in a different state. The President of the Tribunal exercised his power under rule 4 of the Income Tax Appellate Tribunal Rules, 1963, to direct that the appeals be heard and determined by the Mumbai Benches. The High Court found that rule 4(2) allows for the transfer of an appeal from one Bench to another within the same headquarters but does not authorize the transfer of appeals from one Bench in one state to another Bench in a different state. 3. Compliance with principles of natural justice and procedural fairness:The petitioner contended that the transfer of appeals was made to avoid compliance with the direction of the Bangalore Bench for the production of the satisfaction note. The High Court noted that the petitioner had raised objections to the transfer and that the Bangalore Bench of the Tribunal had passed a speaking order dealing with the objections. However, the court found that the order of transfer was not justified and set it aside. The court emphasized that the convenience of a party cannot be a criterion for transferring a case out of a state and that cases are transferred to serve the ends of justice. The court held that the transfer application was invalid as it was made by parties who were not respondents in the subject appeals. 4. Maintainability of the writ petition before the Bombay High Court:Respondent No.2 argued that the writ petition should have been filed before the Karnataka High Court and that an appeal under section 260A of the Act ought to have been filed instead of a writ petition. The High Court rejected these objections, stating that the cause of action for filing the writ petition arose in Mumbai, and therefore, the writ petition filed before the Bombay High Court was maintainable. The court further held that the order dated 19.03.2020 was not an order on the merit of the appeals but related to the transfer of the appeals. Therefore, an appeal under section 260A of the Act would not be applicable, and the writ petition was the appropriate remedy. Conclusion:The High Court set aside and quashed the orders dated 19.03.2020 and 20.08.2020, holding that they were unsustainable in law. The writ petition was allowed, and the appeals were directed to continue before the Bangalore Bench of the Tribunal.
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