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TMI Blog2013 (5) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ashed and set aside - Matter is however remanded back to the Commissioner of Income Tax who shall pass fresh order U/s 127(1) of the Income Tax Act after giving an opportunity to the petitioner and pass an order in accordance with law after recording his reasons - Petition is accordingly partly allowed and disposed of - Contentions of both the parties are kept open. - Writ Petition No. 870 of 2012 - - - Dated:- 19-2-2013 - V.M. KANADE AND U.V. Bakre, JJ. For the Petitioner B.V. Jhaveri. For the Respondent Ms. A. Dessai. JUDGMENT:- V. M. Kanade, J. - Heard learned counsel appearing on behalf of the petitioner and learned counsel appearing on behalf of the respondent. 2. Rule. Rule is made returnable forthwith. By consent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these reasons known to the assessee is to unable an opportunity to the assessee to approach the High Court under its Writ jurisdiction under Article 226 of the Constitution of India or even this Court under Article 136 of the Constitution of India in an appropriate case for challenging the order, inter alia either on the ground that it is mala fide or arbitrary or that it is based on irrelevant or extraneous considerations. Whether such a writ or special leave application ultimately fails is not relevant for a decision of the question. We are clearly of the opinion that the requirement of recording reasons under Section 127(1) is a mandatory direction under the law and non communication thereof is not saved by showing that the reasons exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the conclusion that the High Court should not interfere under Article 226 of the Constitution of India and ordered that where the Department has centralized the cases concerning various companies. Perusal of the said judgment clearly indicate the point which has canvassed in this case by learned counsel appearing on behalf of the petitioner was not an issue before Division Bench and therefore the observation made by the Division Bench of Bombay High Court would not apply to the facts of the present case. Learned counsel though relied on the judgment of Allahabad High Court in the case of Trimurti Fragrances (P) Ltd v. CIT. The Allahabad High Court came to the conclusion that there was sufficient compliance of principles of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (Vide People of the State of New. York v. John E. Van De Carr, etc.(1) It has also been observed by this Court in A . Thangal Kunju Musaliar v. M. Venkitachalam Potti(2) with reference to the possibility of discrimination between assessees in the matter of the reference of their cases to the Income-tax Investigation Commission that:- In paragraph 12 of the said order after referring to the case of Pannalal Biniraj v. Union of India, AIR 1957 SC 397, the Allahabad High Court observed as under:- "It is to be presumed, unless the, contrary were shown, that the 'administration of a particular law would be done I not with an evil eye and unequal hand' and the selection made by the Government of the cases of persons to be referred for inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer mentioned in column (6) thereof. 10. From the aforesaid observation it appears that even on earlier occasions cases were transferred from Kanpur to Delhi. An order of centralized investigation was passed by learned Commissioner of Income Tax by his order dated 23.1.2004 from the Assessing Officer mentioned in column no. 5 to the Assessing Officer mentioned in column no.6. In view of the said ratio, the said judgment would not apply to the facts of the present case. Lastly reliance was placed on the judgment in the case of Jharkhand Mukti Morcha v. CIT. In the said case also Jharkhand High Court came to the conclusion that co-ordinated investigation would be a good ground for transferring the cases. 11. Again there cannot be any di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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