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2022 (4) TMI 1284 - GUJARAT HIGH COURTTransfer of case u/s 127 - no show-cause notice came to be issued to the writ-applicant assigning reasons for transfer - whether the exercise of power under Section 127(2) is administrative in nature or it is quasi-judicial - transferring the case of the writ-applicant from the office of the respondent no.3 at Surendranagar to the office of the respondent no.2 at Ahmedabad - nondisclosure of reason in the order of transfer - HELD THAT:- It cannot be gainsaid that if a statute requires affording of an opportunity of hearing before an order is passed to the person to whom the order relates, it would be an effective opportunity, which is required to be given. The effective hearing, which is required to be given would mean that the assessee must know the ground for the proposed transfer/proposed action and opportunity to rebut the same and to establish that the grounds for such transfer are not tenable under law or for any other reason, as may be admissible under law, such ground would not be sufficient to pass an order of transfer. We are not impressed with the submission canvassed on behalf of the Revenue that Section 127 excludes, by necessary implication, an opportunity of hearing when transfer is on account of the administrative exigency or convenience. This proposition put forward by Mr.Bhatt, the learned senior counsel appearing for the Revenue, is based on the maxim ‘expressio unius est exclusio alterius’, which is a rule of prohibition by necessary implication. We do not think that the above rule will apply in the instant case. In the case of Ajantha Industries and Ors. [1975 (12) TMI 1 - SUPREME COURT], the Supreme Court was dealing with a case, wherein the reasons were not communicated and it was said that failure to communicate the reasons for passing an order under Section 127 renders the order bad. We are of the view that the principles enunciated by the Supreme Court in the case of Ajantha Industries (supra), hold the field. This Court, over a period of time, has been following Ajantha Industries (supra) in its letter and spirit. We have no hesitation in coming to the conclusion that the impugned order of transfer and all the consequential proceedings pursuant thereto could be said to be without jurisdiction. We are not impressed with the submission canvassed on behalf of the Revenue that Section 127 excludes, by necessary implication, an opportunity of hearing when transfer is on account of the administrative exigency or convenience. This proposition put forward by Mr.Bhatt, the learned senior counsel appearing for the Revenue, is based on the maxim ‘expressio unius est exclusio alterius’, which is a rule of prohibition by necessary implication. We do not think that the above rule will apply in the instant case. In the result, this writ-application succeeds and is hereby allowed. The impugned order of transfer dated 8th July 2021 passed under Section 127(2) of the Act qua the writ-applicant is hereby quashed and set-aside. Consequently, the assessment order dated 28th September 2021 also stands quashed and setaside.
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