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TMI Blog2016 (7) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... he request of the petitioner, its pending appeals for the earlier assessment years 2006-07 to 2008-09 were also transferred to Ahmedabad. 4. On 3031/ 07/2015, search and seizure operations were carried out by the investigation wing of the Incometax department at the residential premises of the director of the petitioner company at Gandhidham. Survey operation was also carried out at the factory premises and the corporate office of the company. 5. On 03.11.2015, the Principal Commissioner of Incometax, Ahmedabad, issued a notice to the petitioner, in which it was conveyed as under: "Sir Sub: For hearing Fixed in the Case of M/s. Genus Electrotech Limited regarding Please refer to the above. In the matter sited above, I am directed to intimate you that the hearing is fixed in your case, in respect to transfer your case at Moradabad (UP). In view of the above, you are requested to attend the hearing fixed on 23.11.2015 at 1230 p.m. at Room No.101, 1st Floor, Navjivanm Trust Building, Ahmedabad." 6. In response to such notice, the petitioner replied under letter dated 23.11.2015 and sought adjournment. On 21.12.2015, the petitioner wrote yet another letter and demanded cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction in the case mentioned in schedule below was considered in the context of search u/s 132 of the I.T. Act in the case of M/s. Genus Electrotech Ltd. Before passing an order u/s 127(2) of the Act, sufficient opportunity of being heard was given vide this office letter dated 03.11.2015 in view of change of cities. The assessee asked for an adjournment vide letter dated 14.12.2015. This was granted. The assessee on the reporting date asked for the copy of letter from I.T. Authorities at Moradabad, but has not intimated any difficulties as such. The assessee was well aware of search in connected cases at Moradabad. Hence, it can be taken that there is no serious reason against the change of jurisdiction. In view of the facts & circumstances and in exercise of the powers conferred under subsection 2(a) of Section 127 of the Incometax Act, 1961 and all other powers enabling me in this behalf, I, the Pr.Commissioner of Incometax - 2, Ahmedabad hereby transfer the case mentioned in column No.2 of the Schedule hereunder from the Assessing Officer mentioned in column No.4 to the Assessing Officer mentioned in column No.5 thereof. SCHEDULE Sr. No. Name of the Assessee PAN Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for doing so, is authorized to transfer any case from one or more of the Assessing Officers subordinate to him to any other Assessing Officer. Under subsection (2) of section 127, such case can be transferred where both the Assessing Officers are not subordinate to the same prescribed authority. 11. Even before subsection (1) of section 127 made a reference to giving reasonable opportunity of being heard to the assessee, such requirement was recognized and read into the provision before which such powers could be exercised. The requirement of hearing is now part of the statute. It is not even the case of the department that no such hearing was necessary. In the present case, requirement of issuing a notice and allowing the petitioner to raise objections why the case should not be transferred, were therefore, the fundamental and essential requirements before the power of transfer could have been exercised. In this context the question would be, whether mere issuance of notice without any indication whatsoever of the grounds on which the assessment is proposed to be transfered would satisfy this requirement ? We would answer this question in context of the notice issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The fact that in the present case, the petitioner was aware about the parallel search and survey proceedings would not change the contours of law. The administrative law which has over a long period of time been well refined recognizes certain elements of principles of natural justice inbuilt in any administrative order having adverse civil consequences which cannot be jettisoned by bringing the theory of empty formality or no prejudice. 15. A similar question came up for consideration before the Bombay High Court in case of Shikshana Prasaraka Mandali vs. Commissioner of Incometax and others, reported in 352 ITR 53. Final order of transfer was based on various grounds, one of which were mentioned in the show cause notice. In this respect, the Court observed as under: "15. The giving of notice containing the reasons for the proposed action is a basic postulate for compliance of the Audi Alteram Partem Rule. It is axiomatic that unless a party is informed of the reasons for the proposed action, it would be impossible for the noticee to put forth its point of view with regard to the reasons for the proposed action. The views of the noticee are to be considered by the authority befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of power under section 127 thus we are concerned with larger public interest on one hand and personal inconvenience on the other. However, as long as such powers are exercised bona fide, for public purpose and in the interest of Revenue, the role of the Court to dissect such reasons and to come to a different conclusion would be extremely limited. It is by now well settled that judicial review against the administrative order in exercise of writ jurisdiction, the Court is concerned with the decision making process and not the final decision itself. Unless the reasons which prompted the competent authority to transfer the case can be stated to be wholly irrelevant or arbitrary, the Court would not interfere with such reasons. Ofcourse an order of such nature can and need to be quashed if it is demonstrated that same is passed either without jurisdiction or is actuated by mala fide either in fact or in law. ... 24. In the present case, we notice that that petitioners belonged to the same family or group. They were subjected to common search operation. Their assessments were therefore, under proposal for transfer. A show cause notice was issued to all of them in which the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases either at Rajkot, Baroda or Surat. It is not even suggested before us that such offer was not made. Under the circumstances we do not find any infirmity in the orders under challenge. 26. We therefore side with the school of thought that the reason for effective and coordinate investigation for transfer of assessment cases is neither vague or ground not insufficient. Particularly in the present case when through show cause notice and during hearing of such notices, it was clearly brought to the notice of the assessees the need for transfer of cases, no case for interference is made out. Learned counsel Shri Soparkar submitted that all the judgements taking contrary view pertain to cases which are transferred from one place to another where atleast one assessee is being assessed. This to our mind is not the relevant factor. It may be a factual aspect common to all cases. None of the decisions is based on such fact. Neither Section 127 of the Act, nor any of the decision brought to our notice provides that assessment cases can be transferred from one place to another only as long as atleast one of the case of the group is pending at such place. Section 127 of the Act does not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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