9911796707
TMI Blog2014 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... uashing the order dated 15.2.2010 passed by the Income Tax Officer (T) for Commissioner of Income Tax, Ghaziabad and also the assessment order from the year 2000-01, 2001-02, 2002-03, 2003-04, 2004-05, 20005-06, 2006-07 passed by Assistant Commissioner of Income Tax, Central Circle-IV, New Delhi. c) Issue any order of further order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case. d) Award the cost of the petitioner in favour of the petitioner. Learned counsel for the petitioner submitted that the impugned transfer order dated 11.9.2008 has been passed without giving any opportunity to the petitioner and without recording any reason for the transfer of the case from ITO Ward 2 (3), Ghaziabad to Central Circle 4, New Delhi and therefore, the impugned transfer order is patently illegal. Accordingly, The assessment orders passed by the Assistant Commissioner of the Income Tax, Central Circle-4, New Delhi are invalid and liable to the quashed. In para-11 of the writ petition, it is specifically stated that "transfer order has been passed without giving any opportunity of hearing to the petitioner which is mandatory in nature". The same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners from whose jurisdiction the case is to be transferred may after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order. (b) where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place. (4) The transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fulfilled in the present case and therefore, the transfer order dated 11.9.2008 annexure 1 to the writ petition is patently illegal and liable to be set-aside. We do not find any substance in the argument of the learned counsel for the respondents that since the petitioner has participated in a subsequent proceeding, therefore, it amounts to giving the proper opportunity by the Assessing Authority and it is not open to the petitioner to challenge the validity of the transfer order passed under section 127 of the Income Tax Act. Section 127 of the Act requires an opportunity to be given by the Director General or Chief Commissioner or Commissioners and not by the Assessing Authority and that too before passing the transfer order. The subsequent participation in the assessment proceeding is wholly irrelevant and will not validate the order passed under section 127. The Apex Court in the case of Ajantha Industries v. Central Board of Direct Taxes (Supra) on the consideration of section 127 of the Act held as follows :- "This judgment was rendered by this court on December 21, 1956, and we find that in the 1961 Act section 127 replaced section 5(7A) where the legislature has introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7(1) it was not necessary to give the appellant an opportunity to be heard and there was consequently no need to record reasons for the transfer. This decision is not of any assistance to the revenue in the present case since that was a transfer from one Income-tax Officer to another Income-tax Officer in the same city, or, as stated in the judgment itself, "in the same locality" and the proviso to section 127(1), therefore, applied. When law requires reasons to be recorded in a particular order affecting prejudicially the interests of any person, who can challenge the order in court, it ceases to be a mere administrative order and the vice of violation of the principles of natural justice on account of omission to communicate the reasons is not expiated." In the case of M/s. Bansal Sharevests Services Limited, Kanpur and Others vs. Commissioner of Income Tax, Kanpur and Another (Supra), the Division Bench of this Court has held that "for the transfer of the case from Kanpur to Mumbai not only opportunity of hearing was required to be given but also reasons for the transfer of the case ought to have been recorded before transferring the case. In the absence of giving opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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