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TMI Blog2017 (12) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... y such agreement. Clause (b) of subsection (2) of section 127 provides for consequences when there is no such agreement. When the jurisdiction to pass an order of transfer under clause (a) of subsection (2) of Section 127 can be exercised only when there is such an agreement, the fact that such an agreement exists ought to have been stated in the the show cause notice as the same is a jurisdictional fact. Apart from the failure to mention the same in the show cause notice, the only stand of the revenue is that there is an agreement by implication. This stand is completely contrary to paragraph 5 of the decision of the Apex Court in the case of Noorul Islam Educational Trust (2016 (10) TMI 982 - SUPREME COURT). The decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this writ petition under Articles 226 and 227 of the Constitution of India. 2. The first submission of the learned senior counsel appearing for the petitioner is that the show cause notice is vague. The second submission is that the impugned order is passed in breach of principles of natural justice as the contentions which are raised in the reply have not been adverted to. Next challenge is on the merits of the reasons assigned. There is one more important challenge which is based on non compliance of the requirements of sub section (2) of Section 127 of the Income Tax Act. The submission which is supported by a specific ground is that the condition precedent for show cause notice is that there has to be an agreement between the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court in the case of Ramswaroop vs. Commissioner of Income Tax II, Nagpur [2016] 388 ITR 208 (Bombay). 4. We have given careful consideration to the submissions made across the bar. It will be necessary to advert to section 127 of the Income Tax Act which reads thus: 127. (1) The [Principal Director General] or Director General or [Principal Chief Commissioner or] Chief Commissioner or [Principal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er as the Board may, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub section (1) or subsection (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same city, locality or place. (4) The transfer of a case under sub section (1) or sub section (2) may be made at any stage of the proceedings, and shall not render necessary the re issue of any notice already issued by the Assessing Officer or Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived notice u/s.143(2) from DCIT Central Cir 2(1), Chennai, which fact also underscores the agreement with the Pr.CIT Centra 2 Chennai. (underline supplied) 6. The law on this aspect is laid down in the case of Noorul Islam Educational Trust (supra). Paragraphs 4 and 5 of the said decision reads thus: 4 As the Income tax/assessment file of the appellant assessee has been transferred from one Assessing Officer in Tamil Nadu to another Assessing Officer in Kerala and the two Assessing Officers are not subordinate to the same Director General or Chief Commissioner or Commissioner of Income Tax under section 127(2) (a) of the Act an agreement between Director General, Chief Commissioner or Commissioner, as the case may be, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of clause (a) of sub section (2) of section 127 exists. The existence of such agreement between two jurisdictional Commissioners is a condition precedent for passing the order of transfer. Except for the request which came from the investigation office, Chennai of transferring the case, there is no reference whatsoever to any such agreement. Clause (b) of sub section (2) of section 127 provides for consequences when there is no such agreement. When the jurisdiction to pass an order of transfer under clause (a) of sub section (2) of Section 127 can be exercised only when there is such an agreement, the fact that such an agreement exists ought to have been stated in the the show cause notice as the same is a jurisdictional fact. Apart from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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