9911796707
TMI Blog2009 (3) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income-tax, Kolkata, XIII, Kolkata, respondent No.1. 2. The writ petition was moved on May 3, 2007, when an interim order was passed restraining the respondents from transferring the file. Subsequently, directions were issued for filing of affidavits. Affidavits have since been exchanged and are on record. It may be noted that during the pendency of the writ petition, on June 27, 2007, the interim order lapsed. 3. Mr. Sen, learned advocate appearing on behalf of the petitioner, reiterating the statements in the writ petition has submitted that the transfer has been sought to be effected without issuing any notice and without giving an opportunity of hearing as postulated under section 127 of the Act. Though representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been made in Central charge and respondent No.1 was under an obligation, since no useful purpose would have been served by giving an opportunity of hearing, compliance with the formalities under section 127 of the Act was dispensed with. The submission is since files have been transferred to Mumbai, the petitioners are at liberty to apply before the authorities at Mumbai for retransfer of the files from Mumbai to Kolkata. The submission has been made that since intent order lapsed and transfer has already been effected, no order may be passed. In this regard, reliance has been placed on paragraphs 7, 8, 9 and 10 of the judgment of the hon'ble apex court in Trilokchand Motichand v. H.B. Munshi, CST reported in [1970] 25 STC 289 (SC) ; AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing was granted. Section 127(1) of the Act postulates that a "reasonable opportunity" of hearing is to be granted to the assessee "wherever it is possible to do so" and reasons for such transfer should be recorded. Significantly, there is no such requirement in section 127(3) in the case of intra city transfer. In the instant case, since no opportunity of hearing was granted to the petitioners, the order of transfer transferring the files from Kolkata to Mumbai, an intra city transfer, does not satisfy the parameters under the said section. The facts, in the instant case, are similar to the facts in Kumar Kumar and Brothers [2007] 290 ITR 310 (Cal) ; [2007] 1 CHN 877 wherein prior to transfer of the case from Kolkata to Mumbai no heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent is concerned, I find that it has been held that "each case will have to be considered on its own facts." In the instant case, since the petitioners, after being served with the impugned order dated January 19, 2007, had furnished two representations dated February 1, 2007, and April 9, 2007, and had filed this writ petition on April 9, 2007, in my view, there was no delay on their part in moving the writ petition. Regarding the inconvenience to the respondents in retransferring the files as I find that the entire exercise of transfer of the files was not in accordance with the provisions contained in section 127 of the Act, the argument is without merit. 8. It is to be noted that the respondents have tried to justify the order t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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