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TMI Blog2017 (11) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner's file, they cannot take shelter on the aforesaid instructions, as the petitioner's case does not fall within any one of two categories (mentioned above). The transfer of the files of the petitioner to Mumbai is completely flawed, and it is contrary to statutory provisions and the same should be set aside. Further, it is not disputed that the petitioner has not been put on notice, prior to transfer of their files and straightaway the impugned communication dated 18.07.2017 has been issued intimating that the transfer has been effected and he may contact the Income Tax Office, Mumbai for any queries. Therefore, by the quashing the impugned communication dated 18.07.2017, it has to be necessarily held that the order of transfer, if any, is also un-sustainable. As a consequence thereof, necessary directions are required to be issued in first set of Writ Petitions where, the petitioner seeks for a direction for refund of the excess tax paid by them. In this regard, it is submitted that, several representations and letters have been sent by the petitioner, but the petitioner was not favoured with any reply. When the Act provides for a remedy for refund, in case of excess tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 26.07.2017) the learned Senior Standing Counsel for the respondent/Revenue Department again sought for an adjournment, and the case was adjourned to 10.08.2017. By then, the communication, dated 18.07.2017 has been sent to the petitioner, which necessitated the petitioner to file the second set of Writ Petitions, being W.P.Nos.21007 to 21009 of 2017, and this Court, while entertaining the said Writ Petitions, granted an order of Interim Injunction, restraining the respondent not to transfer the files to Mumbai, and those Writ Petitions were directed to be tagged along with Writ Petitions bearing Nos.17620 to 17623 of 2017. Thus, both the sets of Writ Petitions have been clubbed together. 4. Heard Mr. P. S. Raman, the learned Senior Counsel assisted by Mr. Vishnu Mohan, the learned counsel for the petitioner and Mrs. Hema Muralikrishnan, the learned Senior Standing Counsel appearing on behalf of the respondent/Revenue Department, and perused the materials placed on record. 5. The issues, which falls for consideration in these Writ Petitions is as to whether, by virtue of the impugned communication, dated 18.07.2017, the respondents could have transferred the files from Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a method adopted by the respondent to circumvent the petitioner's request for refund with an intention either to delay in considering such request or to defeat the refund claim made by the petitioner, which remain unprocessed. The respondent is well aware of the fact that the petitioner had approached the Court praying for appropriate directions in this regard, and the Revenue had also accepted notice in the said Writ Petitions and despite the same, the respondent has hurriedly issued the impugned communication dated 18.07.2017. 9. The second contention of the petitioner is that, the order of transfer stands vitiated for non-compliance of mandatory requirement under Section 127 of the Income Tax Act, 1961. Sub-section(1) of Section 127 deals with the Power to transfer cases, where, the Principal Director General or Director General or Principal Chief Commissioner 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 reasons for doing so, transfer the case from one or more Assessing officers subordinate to him (whether with or without concurrent jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esidence or place of business of the assessees, and these instructions appear to have been issued, when it came to the notice of the Board that there are manipulations with a view to avoid proper scrutiny, and as a result of change of residence or place of business of the assessee, the records of the assessees, except, those indicated in the instruction should automatically be transferred without getting the consent of the Income Tax Officer(I.T.O), from whom the case is proposed to be transferred. 13. The instructions (referred to above) would not apply to petitioner's case for more than one reason. Firstly, there is no allegation against the petitioner that there is any avoidance of scrutiny. Secondly, there is no change of business place of the petitioner, and only their registered office has been changed and the same has been intimated to the Department, which shows the bona fide on the part of the petitioner. Though it is the contention of the respondent that, they have obtained the consent from the Income Tax Department at Mumbai regarding transfer of the petitioner's file, they cannot take shelter on the aforesaid instructions, as the petitioner's case does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions and the same should be set aside. Further, it is not disputed that the petitioner has not been put on notice, prior to transfer of their files and straightaway the impugned communication dated 18.07.2017 has been issued intimating that the transfer has been effected and he may contact the Income Tax Office, Mumbai for any queries. Therefore, by the quashing the impugned communication dated 18.07.2017, it has to be necessarily held that the order of transfer, if any, is also un-sustainable. 16. As a consequence thereof, necessary directions are required to be issued in first set of Writ Petitions viz., W.P.Nos.17620 to 17623 of 2017, where, the petitioner seeks for a direction for refund of the excess tax paid by them. In this regard, it is submitted that, several representations and letters have been sent by the petitioner, but the petitioner was not favoured with any reply. When the Act provides for a remedy for refund, in case of excess tax paid or collected, it is bounden duty for the respondent to pass orders on the petitioner's refund claim without delay. 17. In the result, Writ Petitions bearing Nos.21007 to 21009 of 2017 are allowed and the impugned commu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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