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TMI Blog2014 (5) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... der, nor there is any finding that it is not possible to give opportunity nor any reason has been recorded for the transfer of the case - the Central Circle-4, New Delhi has assumed the jurisdiction by virtue of the transfer order dated 11.9.2008, all the orders passed by the Assistant Commissioner of the Income Tax, Central Circle-4 New Delhi are without jurisdiction and are set aside – Decided in favour of Assessee. - Writ Tax No. - 126 of 2010 - - - Dated:- 29-4-2014 - Hon'ble Rajes Kumar And Hon'ble Shashi Kant,JJ. For the Petitioner : D. P. Mishra,Rajesh Gupta, Rishi Raj Kapoor, Satyender Kumar Singh For the Respondent : Asgi, D. Awasthi ORDER We have heard Sri Satyender Kumar Singh, learned counsel for the petitioner and Sri Dananjay Awasthi learned Senior Standing Counsel appearing on behalf of the respondents. By means of the present petition, the petitioner is seeking following reliefs :- a) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 11.9.2008 passed by Commissioner of Income Tax, Ghaziabad and also to quash the further proceeding done in pursuance of this order. b) Issue a writ, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after the transfer of the case, the petitioner has filed the objection on 9.12.2009 which has been disposed off vide order dated 15.2.2010 which is annexure- C.A.-1. He further submitted that after transfer of the case, the Central Circle-4 New Delhi has issued the notices and the petitioner participated in the proceeding and thereafter the assessment orders have been passed. We have heard the rival submissions and perused the record. It would be appropriate to refer section 127 of the Income Tax Act, which runs as follows:- Section 127 (1) The Director General or Chief Commissioner or Commissioner 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, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from who the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was obligatory on the part of the Commissioner Income Tax to provide the reasonable opportunity of hearing before passing the transfer order. It is a pre-requisite and mandatory. In the present case admittedly, no opportunity has been given before passing the transfer order. Further, we find that under the section, the reasons should be recorded for the transfer of the case.Perusal of the impugned order reveals that no reason has been recorded. In this regard, we would like to refer the order dated 11.9.2008 passed by Commissioner of Income Tax, Ghaziabad :- In exercise of Power conferred by sub-section (1) and (2) of section 127 of the Income-tax Act, 1961 (43 of 1961) and all powers enabling me in this behalf, I, the Commission of Income-tax, Ghaziabad to hereby transfer the case(s) particulars of which are mentioned in column (2) of the Schedule appended below from the Assessing Officer in column (4) to the Assessing Officer mentioned in column 5 of the Schedule. S.N. NAME ADDRESS OF THE ASSESSEE PAN FROM TO 1 2 3 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the reason why before making an order of transfer the legislature has ordinarily imposed the requirement of a show-cause notice and also recording of reasons. The question then arises whether the reasons are at all required to be communicated to the assessee. It is submitted, on behalf of the revenue, that the very fact that reasons are recorded in the file, although these are not communicated to the assessee, fully meets the requirement of section 127(1). We are unable to accept this submission. The reason for recording of reasons in the order and making these reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under article 226 of the Constitution or even this court under article 136 of the Constitution 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 and 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 opinion that the requirement of recording reasons under section 127(1) is a mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area within which he resides or carries on business to another Income Tax officer under sub-sections (1) and (2) of Section 127 of the Act. The order of transfer is not a material infringement of the assessees' rights. Before transferring the case from one officer to another a notice has to be given to the assessee. The notice should briefly state the reasons why it is proposed to transfer the case. Before ordering transfer reasons have to be recorded and it has to be communicated to the assessee. The officer has to apply his mind to the materials on record or information available while passing an order of transfer . On the consideration of the decision of the Apex Court and the decision of the this Court referred herein above and having regard to the provisions of section 127 of the Act, we are of the view that for exercising the power under section 127 for transferring of the case from one officer to another officer of different jurisdiction, it is mandatory to give opportunity of hearing before passing the order and further the reason for the transfer of the case must be recorded. In the present case, neither any notice nor any opportunity has been given to the petit ..... 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