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TMI Blog2009 (1) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... objections. - Hence, the order impugned passed under section 127 of the Act by respondent No. 1 cannot be sustained and is, thus, set aside and quashed X X X X Extracts X X X X X X X X Extracts X X X X ..... th in paragraph 5 of the impugned order. Relying on the judgment of the apex court in Mahabir Prasad Santosh Kumar v. State of U. P. reported in AIR 1970 SC 1302, it has been submitted that it has to be seen whether the reasons in arriving at a conclusion is cogent and as personal inconvenience is the primary grievance of the petitioner, the order impugned is just and proper. 4. In order to appreciate the issue, it is necessary to refer to the relevant portion of the order impugned, which is extracted hereinbelow: "Consequent to search and seizure operations under section 132 of the Income-tax Act, 1961, in the 'B.S. Agarwal' group of cases, it had been requested by the Commissioner of Income-tax (Central), Ranchi, that the cases named in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joinders, the said assessees reiterated the ground of their practical inconvenience in attending to proceedings at Ranchi, and requested for centralization of the other cases at Kolkata. The copy of the relevant rejoinder to each assessee is enclosed as annexure B. The assessees at serial Nos. 3 and 4 of the schedule below have not filed any rejoinder till date. 5. The contents of the assessees' rejoinders along with enclosures thereto have been perused and considered. However, I do not find substantive merit in the same. Personal inconvenience in attending proceedings cannot override the interest of co-ordinated investigation and it cannot be the prerogative of an assessee to choose the office or officer with whom their case should be cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the petitioner had filed two representations dated June 11, 2008, and September 8, 2008, objecting to the proposed transfer. However, the order impugned is silent how the replies and enclosures on record were considered. Since the two written objections were filed and as filing of objection is not an empty formality, it was incumbent upon the Commissioner of Income-tax, Kolkata-I, respondent No. 1, to deal with the objections. In paragraph 7 of the judgment in Mahabir Prasad, AIR 1970 SC 1302, relied on by the learned advocate for the respondent, the law laid down is as under (page 1304): "Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08. Thus, the decision cannot be said to be on the basis of materials on record. Further, section 127 of the Act postulates that the assessee should be given a reasonable opportunity of being heard in the matter, wherever it is possible to do so. In the instant case, though it appears from paragraph 2 of the order under challenge that the assessee was given an opportunity of being heard, the order is silent as to whether the assessee, pursuant to the notice of hearing, had appeared. Therefore, in my view, the order is squarely covered by the judgment and order in Simple Viniyog [2009] 313 ITR 336 (Cal) passed on November 21, 2008. Moreover, the law laid down in Mahabir Prasad, AIR 1970 SC 1302, though relied on by the respondents, supports ..... X X X X Extracts X X X X X X X X Extracts X X X X
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