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TMI Blog1971 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... f timbers in the city of Bareilly within the usual jurisdiction of the Income-tax Officer, D-Ward, Bareilly. The petitioner filed the returns of its income before the Income-tax Officer, D-Ward, Bareilly, for the assessment years 1960-61 and 1961-62, on 18th May, 1960, and 10th May, 1961, respectively. In due course these proceedings were transferred to the Income-tax Officer, A-Ward, Bareilly. The Commissioner of Income-tax, U.P., Lucknow, issued a notice dated 25th May, 1964, to the petitioner informing it that it was proposed to transfer the petitioner's case from the file of the Income-tax Officer, A-Ward, Bareilly, to that of the Income-tax Officer, Special Investigation Circle, Lucknow, under section 127 of the Income-tax Act, 1961. The petitioner was required to state its objection, if any, to the proposed transfer of the case on or before 5th June, 1964. On 3rd June, 1964, the petitioner applied to the Commissioner of Income-tax, Lucknow, for being given at least a month's time for filing objection to the proposed transfer of its case to the file of the Income-tax Officer, Special Investigation Circle, Lucknow. The petitioner followed its request for grant of time for fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment and expense to it. It was also mentioned that the procedure that would be adopted by the Income-tax Officer, Special Investigation Circle, would be disadvantageous to the petitioner inasmuch as the Income-tax Officer who gives hearing does not pass the assessment order without the approval of the Directorate and it is the person in the Directorate who actually determines the assessment without hearing the assessee, It was claimed that the order of transfer was not only unwarranted but was defective inasmuch as the condition precedent for making that Order had not been complied with. The petitioner, therefore, requested that the order of transfer be recalled and so long as its request was not considered further proceedings for assessment may be stayed. It appears that after the receipt of the transfer order, dated 23rd June, 1964, the petitioner's case in respect of the assessment years 1960-61 and 1961-62 was actually transferred to the file of the Income-tax Officer, Special Investigation Circle, Lucknow. The Income-tax Officer at Lucknow issued notices to the petitioner informing it about the transfer of the case to him and also requiring it to participate in the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order transferring the case from the file of the Income-tax Officer, A-Ward, Bareilly, to that of the Income-tax Officer, Special Investigation Circle, Lucknow. He further observed that nothing else had been pointed out to him which went to ,show that jurisdiction over the case had not been validly exercised by the Income-tax Officer concerned. On other points the appeals filed by the petitioner were allowed and the cases for the two years were sent back to the Income-tax Officer for making fresh assessment in the light of the observations made in that order. The petitioner has now filed these two writ petitions in this court, in respect of the assessment proceedings for the assessment years 1960-61 and 1961-62. Main argument advanced by the petitioner before us is that inasmuch as the returns for the two assessment years 1960-61 and 1961-62 had been filed before 1st April, 1962, the Commissioner of Income-tax had no jurisdiction to transfer the assessment proceedings for those two years from the file of the Income-tax Officer, A-Ward, Bareilly, to that of the Income-tax Officer, Special Investigation Circle, Lucknow, in exercise of his powers under section 127 of the Income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 127 of the Income-tax Act, 1961, was invalid and without jurisdiction. Relevant portion of section 127 of the Income-tax Act, 1961, reads as follows : " 127. (1) The 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 any Income-tax Officer or Income-tax Officers subordinate to him to any other Income-tax Officer or Income-tax Officers also subordinate to him and the Board may similarly transfer any case from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers : .... Explanation.- In this section and in sections 121, 123, 124 and 125, the word 'case', in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year. Relying upon the Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before 1st of April, 1962. Section 5(7A) of the 1922 Act conferred a power on the Commissioner of Income-tax for transferring any case from one Income-tax Officer sub-ordinate to him to another. Unlike section 127 of the 1961 Act, sub-section (7A) of section 5 of the 1922 Act did not provide for any opportunity being given to the assessee to be heard before making the order of transfer, and there was no requirement of recording of reasons before making an order of transfer. Once section 127 of the 1961 Act is out of the way, the order for the transfer of proceedings, pending against the petitioner for the assessment years 1960-61 and 1961-62, will be one under section 5(7A) of the 1922 Act. The petitioner will then not be able to contend that the order of transfer is bad either because he was not given an opportunity of being heard or because reasons for making the order had not been recorded. Learned counsel for the petitioner contended that, on the face of it, the order of transfer was made by the Commissioner of Income-tax in exercise of the powers under section 127 of the 1961 Act and it is not open to the revenue to justify the correctness of that order with reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner, while transferring the cases, does not exclude the exercise of the power under section 5(7A) of the 1922 Act. In any case the transfer of pending assessment proceedings for the assessment years 1960-61 and 1961-62 was authorised by section 5(7A) of the 1922 Act and the order of transfer cannot be said to be defective or without jurisdiction. Learned counsel for the petitioner then argued that after the repeal of the Indian Income-tax Act, 1922, by the 1961 Act, the power under section 5(7A) of the 1922 Act could not be exercised as that provision ceased to exist. He contends that, in the circumstances, the revenue cannot rely upon this provision to justify the order of trarisfer. When the attention of the learned counsel was drawn to the provisions of section 297(2)(a) of the 1961 Act, according to which notwithstanding the repeal of the 1922 Act in such cases proceedings for assessment were to be taken and continued as if the 1961 Act had not been passed, i.e., the 1922 Act was not repealed, the learned counsel urged that what was saved was only those provisions of the 1922 Act which concerned assessment proceedings. According to him the power of transfer given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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