TMI Blog2021 (3) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment Order. The assessee can only be concerned with getting an opportunity of hearing before the concerned Assessing Authority and adduce his evidence and make his submissions before the concerned Assessing Authority. The Income Tax department has recently introduced a scheme of Faceless Assessments with a view to avoid personal hearing and physical interaction of the assessee and the Assessing Authority altogether. The assessee need not even know the name of the Assessing Authority who will deal with his case. We have also looked into the judgments relied upon by Mr.Darshan Patel, the learned counsel appearing for the writ-applicant. However, none of the judgments are of any avail to the writ-applicant. We are convinced that no case is made out for interference. - R/SPECIAL CIVIL APPLICATION NO. 11623 of 2020 - - - Dated:- 22-1-2021 - HONOURABLE MR. JUSTICE J.B. PARDIWALA AND HONOURABLE MR. JUSTICE ILESH J. VORA MR DARSHAN R PATEL FOR THE PETITIONER MR. M.R. BHATT, SR. ADVOCATE WITH MRS MAUNA M BHATT FOR THE RESPONDENT ORDER PER: HONOURABLE MR. JUSTICE J.B. PARDIWALA 1. By this writ-application under Article 226 of the Constitution of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E), Circle-2, Ahmedabad under the administrative control of Commissioner of Income Tax (E}, Ahmedabad. 4. In light of the above facts, it is to inform you that proceedings to transfer your PAN and passing Order U/s 127(2) of the Act are under progress in your case. In this connection, you are given opportunity of being heard in this matter and requested to either submit your reply through email or speed post or attend before the undersigned in person or through an Authorised Representative on 28/07/2020 at 03:30 P.M. in this office to present your case. In case of non-compliance, it will be presumed that you have no objection to transfer your PAN to the DCIT, Central Circle-1, Vadodara and to pass Order U/s 127(2) of the I.T. Act in your case and the matter will be decided on merits and on the basis of documents available on record. (RITESH PARMAR) Commissioner of Income Tax (Exemptions), Ahmedabad 4. The Corrigendum to the aforesaid dated 29th July 2020 reads thus : To, The Principal Officer, M/s.Sumandeep Vidyapeeth Piparia, Waghodia, Vadodara 391760. Sir, Sub: Opportunity letter alongwith disposal of Objection rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be overruled by the Commissioner of Income Tax (Exemption), Ahmedabad, vide communication dated 14th August 2020. 7. Ultimately, the final order under Section 127(2)(a) of the Act came to be passed dated 17th August 2020. The order reads thus : ORDER UNDER SECTION 127(2)(a) OF THE INCOME TAX ACT, 1961 In exercise of the powers conferred by the sub-section (2) of Section 127 of the Income-tax Act, 1961 and all other powers enabling me in this behalf, I, the Commissioner of Income Tax (Exemptions), Ahmedabad, hereby transfer the case along with its PAN, the particulars whereof are mentioned in Column No. 4 5 of the schedule appended hereunder, from the Assessing Officer mentioned at Column No. 4 to the Assessing Officer mentioned at Column No.4 to the Assessing Officer mentioned at Column No.5 thereof. Sr. No. Name of the Assessee PAN From Assessing Officer To Assessing Officer 1 2 3 4 5 1 M/s Sumandeep Vidyapeeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing counsel appearing for the Revenue. Mr.Bhatt would submit that under the communication dated 29th July 2020, a Corrigendum was issued clarifying that though there was no search proceedings, the case was proposed to be centralized with the other group cases for coordinated investigation as per the provisions of Section 127(2)(a) of the Act. An opportunity of hearing was granted. All the objections raised by the writ-applicant came to be considered under the communication dated 14th August 2020. The following objections of the writ-applicant have been seriatim considered in the order disposing of the objections : (a) Absence of document identification number (DIN) : The aforesaid aspect has been clarified stating that urgent and important communication cannot be withheld on account of technical problems. (b) Absence of search proceedings : The judgment of this Court rendered in the case of Hindustan M.I. Swaco Limited (2016) 72 taxmann.com 14 (Guj.) (Para 15 of the judgment) has been referred to hold that the transfer of cases for effective investigation and coordination can be resorted to even in the absence of search proceedings. The provisions of Sections 153A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e power to transfer cases. It reads as under : 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 Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,- (a) where the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners to whom such Assessing Officers are subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officers also subordinate to him. This power is hedged by two requirements which are that such order can be passed only after giving the assessee a reasonable opportunity of being heard and recording his reasons for doing so, wherever possible. As per sub-section (3) of Section 127 however, the opportunity of hearing would not be necessary where the transfer of a case is from an Assessing Officer to another Assessing Officer and such officers are situated in the same city, locality or place. Under clause (a) of sub-section (2) of Section 127, where the Assessing Officer or the officers from whom the case is to be transferred and the Assessing Officer or the officers to whom the case is to be transferred are not subordinate to the same Principal Directors General, Director General, Principal Chief Commissioners, Chief Commissioners or Principal Commissioners or Commissioners, the transfer of case would be only when such authorities to whom the Assessing Officers concerned are subordinate are in agreement. In such a case, the Principal Director General, Director General, Principal Chief Commissioner or Chief Commissioner or Commissioner from whose jurisdiction the case is to be tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also notice that upon such agreement being achieved, it is the authority from whose jurisdiction the case is to be transferred, has to grant a reasonable opportunity of being heard to the assessee and then pass an order recording his reasons. This requirement would have two significant elements. One is that the authority under whose jurisdiction the assessment is being transferred has merely to show his agreement or disagreement, as the case may be. It is the authority from whose jurisdiction the case is being transferred, in addition to agreeing to transfer would have to grant an opportunity of hearing to the assessee and pass a reasoned order. The second element is that his agreement for transfer of the case cannot be equated with the decision to transfer. The decision can be reached only after hearing the assessee. He can form a final opinion that the case is to be transferred only after hearing the assessee, failing which, his decision would be exparte. Without the representation or involvement of the assessee, the requirement of hearing would then be rendered into an empty formality. [See Genus Electrotech Ltd. vs. Union of India and Others, (2018) 402 ITR 221 (Guj.)] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in sub-section (1) or subsection (2) thereof. Such discretion of course has to be exercised for achieving the public purpose and not for any arbitrary or irrelevant consideration. On the other hand, it can also be seen that transfer of a pending case from one Assessing Officer to another outside of a city, locality or place is likely to cause considerable inconvenience to an assessee. Therefore, even though an assessee may not have a vested right to insist that his assessment be completed only at one place or by a particular Assessing Officer, nevertheless, the reasons for transfer must be weighty enough to offset against such personal inconvenience of an assessee. In exercise of power under Section 127 thus we are concerned with larger public interest on one hand and personal inconvenience on the other. However, as long as such powers are exercised bona fide, for public purpose and in the interest of Revenue, the role of the Court to dissect such reasons and to come to a different conclusion would be extremely limited. It is by now well settled that judicial review against the administrative order in exercise of writ jurisdiction, the Court is concerned with the decision ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, such that detailed reasons and specific grounds are required to be provided, as the petitioner today argues. Equally, the show-cause notice dated 9.10.2013 granted the petitioner in this case an opportunity of being heard. No oral representation was made by the petitioner on that date, nor was any request for another date made to the Commissioner. Written objections, however, were preferred, which were considered and disposed off by the impugned notice in this case. The argument, thus, that no chance to effectively represent the case was provided has no merit. 22. In Pannalal Binraj vs. Union of India, reported in (1957) 31 ITR 565, the Supreme Court observed while upholding the power of transfer that, inconvenience to the assessee or likelihood of misuse of the provision could not be a ground to declare the said provision to be void, but if there was abuse of the power, appropriate remedy could be taken. The relevant observations reads thus : It follows, therefore, that Section 5(7A) of the Act is not violative of Article 14 of the Constitution and also does not impose any unreasonable restriction on the fundamental right to carry on trade or business enshrined in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vidhyapith Trust were caught red handed accepting the bribe of ₹ 20 lakh in cash from the parent of a final year medical student. Accordingly, the ACB, Gujarat has communicated to this office and the office of the Pr.CCIT(Guj), Ahmedabad for consideration to cancel the registration of the K.M.Shah Trust, Managing Sumandeep Vidhyapith (deemed University). 4.2. It was also highlighted by the office of the Director in-charge and Special Director, ACB Gujarat, Ahmedabad that during the course of search action, certain incriminating records i.e. possession of FDRs of ₹ 43,63,70,961/- and blank signed cheques of ₹ 101,57,42,360/- and also other documents were found. It was also intimated that during post search investigation, it was further found that Shri Mansukh Shah and his family members have earned profits from stock market by trading in penny stocks, Such tax exempt capital gains amounted to ₹ 27.57 crores from F.Y. 2012-13 to F.Y. 2015-16. In view of above, it was referred to the Investigation Wing of Income Tax Department at Vadodara for necessary investigation. 4.3. Necessary enquiry was carried out by the Investigation Wing of Income Tax Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s more than sufficient to establish a grave suspicion as to the commission of the alleged offence. 53. The respondent has vehemently stressed upon the fact that he is admittedly a trustee of the Sumandeep Charitable Trust and has no connection with the Sumandeep University . But, it ought to be noted that the courts below have failed to analyze the connection between the trust and the University, as well as the relationship of the respondent with the university. Prima facie, a grave suspicion is made out that the respondent was rendering his service by dealing with the students and the examination aspect of the University. But a detailed appreciation of evidence is called for before one can reach a conclusion as to the exact position of the respondent vis-a-vis the University. From above, it is clearly evident that even the Apex Court has decided the issue against the assessee and has highlighted the nexus of various persons intrinsically linked with the activities of the Trust. Such observation of Apex Court itself calls for co-ordinated investigation in this case. In view of above, centralization of assessee trust is required to be made for coordinated investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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