2006 (7) TMI 161 - HC - Income Tax

Correctness/validity of an order u/s 127 - power of transfer of case - case transferred from Kolkata to Central Mumbai - Petitioner has had its registered office in Kolkata ever since its incorporation in 1988 - Petitioner No.1 engaged in the business of real estate development and has since its inception been assessed to tax at Kolkata where its registered office is situate - HELD THAT - In view of the judgment of the Supreme Court in the case of Ajantha Industries v. CBDT 1975 (12) TMI 1 - SUPREME COURT the judgment case of Rajesh Mahajan v. CIT 2002 (7) TMI 94 - PUNJAB AND HARYANA HIGH COURT and the judgment of R. K. Agarwal v. CIT 2006 (2) TMI 95 - ALLAHABAD HIGH COURT there can be no doubt that an order of transfer u/s 127 of the Act is amenable to scrutiny under article 226 of the Constitution of India. In proceedings under article 226 of the Constitution of India this court might examine the reasons for transfer of a case and if the reasons ex facie do not justify transfer an order of transfer might be interfered with by this court. The petitioner-company and Pioneer Embroideries Ltd. are distinct body corporates separately assessed to income-tax. Even though petitioner No.2 might be a director of the petitioner-company as also Pioneer Embroideries Ltd. petitioner No.2 is an individual assessee. In the absence of any business connection between the petitioner-company and Pioneer Embroideries Limited and in the absence of any finding that the valuables or documents seized from the residence of petitioner No.2 had any relationship with Pioneer Embroideries Limited or any of its sister concerns there could be no question of transferring the case of the petitioners to Mumbai. There can however be no doubt that the income-tax authorities might continue with the investigation if any against each of the petitioners - The impugned order is set aside and quashed. This order will however not prevent the respondent authorities from issuing a fresh order of transfer u/s 127 of the Income-tax Act 1961 transferring the case of petitioner No.2 to Mumbai in the event any real nexus is found between any articles or documents found in the residence of petitioner No.2 and Pioneer Embroideries Ltd. or any of its sister concerns. The writ application is disposed of.

Summary

Issues:

1. Challenge to the order of transfer under section 127(1) and (2) of the Income-tax Act, 1961.
2. Jurisdictional transfer of cases from Kolkata to Mumbai.
3. Lack of business connection between petitioners and Pioneer Embroideries Ltd.
4. Prima facie findings of undisclosed income and nexus with Mumbai company.
5. Compliance with principles of natural justice in the transfer order.

Issue 1: Challenge to the order of transfer under section 127(1) and (2) of the Income-tax Act, 1961

The petitioner challenged an order transferring their case from Kolkata to Mumbai under section 127(1) and (2) of the Income-tax Act, 1961. The petitioners objected to the transfer, highlighting the location of their registered office, the assessment history in Kolkata, and the absence of business activities in Maharashtra. They argued that no business connection existed with Pioneer Embroideries Ltd., the Mumbai company involved in the search. The petitioners submitted detailed objections before the transfer order was issued.

Issue 2: Jurisdictional transfer of cases from Kolkata to Mumbai

The High Court examined the reasons for transferring the cases to Mumbai. The Chief Commissioner of Income-tax, Central-II, Mumbai, provided justifications based on the search actions conducted at the premises of the petitioners and their alleged connections with Pioneer Embroideries Ltd. The court noted the lack of prima facie findings establishing a nexus between the petitioners and the Mumbai company. The court emphasized the importance of recording reasons and providing an opportunity to the assessee before transferring a case to another jurisdiction.

Issue 3: Lack of business connection between petitioners and Pioneer Embroideries Ltd.

The court observed that the petitioner-company and Pioneer Embroideries Ltd. were separate entities, individually assessed for income tax purposes. Despite a common director, no substantial business connection was established between the two entities. The court highlighted the absence of evidence linking the seized materials from the petitioner's residence to the Mumbai company or its affiliates, reinforcing the lack of grounds for transferring the cases to Mumbai.

Issue 4: Prima facie findings of undisclosed income and nexus with Mumbai company

The affidavit-in-opposition mentioned undisclosed income admitted by one of the petitioners related to the sale of gold, but it did not establish a direct connection between this income and the business activities of Pioneer Embroideries Ltd. The court emphasized the need for a clear nexus between the seized materials and the Mumbai company to justify the transfer of cases. The absence of such a connection undermined the basis for the jurisdictional transfer.

Issue 5: Compliance with principles of natural justice in the transfer order

The court referenced legal precedents emphasizing the importance of complying with principles of natural justice in transfer orders under section 127 of the Income-tax Act. It highlighted the necessity of providing a show-cause notice, recording reasons for transfer, and addressing objections raised by the assessee. The court concluded that the transfer order lacked sufficient grounds and failed to establish a valid reason for moving the cases to Mumbai. The order was set aside, allowing for a fresh transfer order only if a genuine nexus was found between the petitioners and the Mumbai company.

This detailed analysis of the judgment highlights the key issues involved in the challenge to the jurisdictional transfer of income tax cases from Kolkata to Mumbai and the court's decision based on the lack of established business connections and prima facie findings.