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TMI Blog2014 (10) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to be an order either arbitrary or erroneous, more so, when the second respondent has recorded reasons - the order being a reasoned order and nothing has been placed before the Court to show that the order is either ex facie perverse or vitiated by any patent error and that the power u/s 127 of the Income Tax Act could be exercised in accordance with the Section, if proper grounds are made out - In the order reasons have been assigned for rejecting the request for transfer, which is based on the records – the order for refusing to transfer the case from Tanjore to Chennai is upheld – Decided against assessee. - W. P. No. 1576 of 2014 - - - Dated:- 14-10-2014 - T. S. Sivagnanam,JJ. For the Petitioner : Mrs. Chitra Sampath Sr. Counsel for Mr. T. S. Baskaran For the Respondents : Mr. T. Pramod Kumar Chopda ORDER The petitioner initially filed this Writ Petition for issuance of a Writ of Mandamus, directing the second respondent to transfer the Income Tax files relating to Late Mr.Y.Victor, the husband of the first petitioner and father of the second petitioner from the file of the Income Tax Officer, Ward I (2) Tanjore to the file of the respondents 3 and 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already filed returns at Chennai and after the files were transferred from Tanjore to Chennai, the assessment would be completed. 4. The learned counsel further submitted that the impugned order passed by the second respondent suffers from errors apparent on the face of the record and there is no justification for retaining the files at Tanjore and without considering the fact that no prejudice would be caused to the department, if the files are transferred to Chennai. Further, it is submitted that merely because notices were issued at Tanjore and statement of the petitioner's son was recorded at Tanjore, it cannot be a ground to compel the petitioners, who are permanently residing at Chennai to travel from Chennai to Tanjore on each occasion for participating in the assessment proceedings. Further, it is submitted that existence of properties of Tanjore alone cannot be a ground for retaining the files at Tanjore, since the petitioners/assessees have shifted the permanent place of residence to Chennai as early as 2008. Further, it is submitted that except issuing notice under the provisions of the Act, the first respondent has not heard the petitioners on the returns fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Late Mr.Y.Victor for the assessment year 2012-13. It is submitted that after receipt of the notices, the petitioners instead of filing the return of income before the first respondent, who had issued notice under Section 148 of the Income Tax Act, they have manually filed the return for the assessment years 2009-10 and 2010-11 on 26.11.2013, before the Deputy Commissioner of Income Tax, Business Circle III, Chennai, admitting a total income of ₹ 13,88,500/- and ₹ 18,93,310/- respectively. It is further submitted that though in the said two returns, the petitioners have quantified the self assessment tax for the said assessment years, the same was paid only on 31.01.2014, in response to the letter of the Assessing Officer, dated 16.01.2014. Further, it is submitted that the fact that the petitioners have filed their returns at Chennai, came to the knowledge of the first respondent only pursuant to the letter dated 16.12.2013, from the Deputy Commissioner of Income Tax Business Circle-III, Chennai, wherein clarification was sought for pertaining to the details of the pending proceedings and on the question of jurisdiction. Further, it is submitted that the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether 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 whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Director General or Chief Commissioner or Commissioner,- (a) where the Directors General or Chief Commissioners or Commissioners,. to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief Commissioner or Commissioner 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, authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or reopening is on the ground that no returns were filed by the first petitioner's husband from 2007 onwards. Admittedly, the petitioner's husband passed away in 2013. When the transactions have taken place within the jurisdiction of the first respondent and the transaction pertained to the immovable property, the petitioners cannot insist that the files should be transferred from Tanjore to Chennai solely on the ground that it would be convenient for the first petitioner to partake in the assessment proceedings. 10. In the case of Autofin Ltd., vs. Commissioner of Income Tax reported in 1977 (106) ITR 638, a Writ Petition was filed before the Andhra Pradesh High Court to quash an order passed by the Commissioner of Income Tax, Hyderabad, dated 20.10.1972. The said order was passed on an application made by the petitioner seeking for transfer of the file from a particular Income Tax Officer to some other Officer on the ground that the said Officer was teasing and harassing the second petitioner as well as the company and therefore, the petitioners' apprehended that they would be denied jurisdiction in the hands of the said Income Tax Officer. The Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as bound to exercise the power of transfer in accordance with Section 127 of the Income Tax Act, if proper grounds are made out. After holding that the assessee can also seek for invoking the power under Section 127 of the Income Tax Act, it was held that it is for the Commissioner or the Board to consider and decide whether the case is a fit one for exercising jurisdiction conferred by Section 127 of the Income Tax Act. On the question as to whether such an order could be interfered under Article 226 of the Constitution, it was pointed out that the question whether the circumstances warrant transfer or not is a matter for consideration and decision by the Commissioner and the Commissioner on consideration of the representation of the petitioners and the report was satisfied that it is not a fit case for transfer and such circumstances, the Court will be reluctant to interfere under Article 226 of the Constitution with the discretion exercised by the Commissioner unless there is a patent error of law or error apparent on the face of the record. Therefore, the Writ Petition came to be dismissed by holding that under Article 226 of the Constitution, the Writ Court would not normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to remedy any injustice and it is always open to bring to notice any error, illegality or injustice. On examining the impugned order which was subject matter of the said case, it was held to be vitiated because of absence of hearing and recording of reasons. However, it was held that no hard and fast rule can be laid down about the extent and manner of hearing and reasons to be recorded and all depends upon the facts and circumstances on each case. Therefore, the High Court of Bombay though culled out the legal position and observed that there can be no hard and fast rule and the extent and manner of hearing and reasons depend on the facts and circumstances of each case. On the facts of the said case, the Court was satisfied that the impugned order therein was vitiated because of absence of hearing and recording of reasons. 13. The High Court of Kerala in the case of Benz Corporation vs. Income Tax Officer, (supra), held that the power of transfer under Section 127(1) of the Income Tax Act is a quasi-judicial one and such power has to be exercised in a fair and reasonable manner and not in an arbitrary or mechanical way and passing a reasoned order is one of the requirements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strar office Tanjore and other immoveable properties, which were retained by the family were situated in Tanjore District. Further, a statement has also been recorded from the first petitioner's younger son under Section 131 of the Income Tax Act. Therefore, the impugned proceedings cannot be stated to be an order either arbitrary or erroneous, more so, when the second respondent has recorded reasons. Therefore, the decisions relied upon by the learned Senior counsel appearing for the petitioners are clearly distinguishable on facts and as held by the High Court of Bombay in the case of Devidas vs. Union of India, (supra), there cannot be any hard and fast rule in such matters. 15. Thus, the impugned order being a reasoned order and nothing has been placed before this Court to show that the impugned order is either ex facie perverse or vitiated by any patent error and that the power under Section 127 of the Income Tax Act could be exercised in accordance with the said Section, if proper grounds are made out. In the impugned order reasons have been assigned for rejecting the request for transfer, which is based on the records. In such circumstances, this Court is not inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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