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2023 (2) TMI 866 - HC - Income TaxTransfer of case u/s 127 - nexus established between the assessee on whom search and survey operation - Transfer of jurisdiction of the case from ACIT / Deputy Commissioner of Income Tax, Circle 13(1), Kolkata to Deputy Commissioner of Income Tax, Central Circle 1, Kanpur - HELD THAT:- Language of Section 127 is clear that the assessee should be given a reasonable opportunity of being heard in the matter before the power u/s 127 is invoked. The statute is also clear that such opportunity of being heard is to be given wherever it is possible to do so. If the authority proposes to dispense with the opportunity of hearing, the statute states that reasons have to be recorded for not providing such an opportunity. On perusal of the order impugned in the writ petition we find that no such reasons have been recorded by the authority for dispensing with the opportunity of personal hearing as no show cause notice was issued to the assessee prior to order of transfer. In any event, Single Bench was of the opinion that the appellant had made out a prima facie case for entertaining the writ petition. But, however, if the assessment proceedings are to be proceeded by the assessing authority at Kanpur, then the writ petition itself would become infructuous. In any event, we are of the view that since no reasons have been recorded by the authority for dispensing with the opportunity of being heard, we find that there are no such reasons to do so. Therefore, the authority is bound to issue notice to the appellant and afford them a reasonable opportunity of being heard before a decision is taken. We are inclined to remand the matter back to the authority for a fresh decision - appeal stands disposed of along with the writ petition by directing the appellant to treat the order passed by the PCIT-5, Kolkata as a show cause notice and the appellant shall submit their objection within fifteen days from the date of receipt of the server copy of this judgment and order after which the PCIT shall afford an opportunity of hearing to the authorised representative of the assessee and pass a speaking order on merit and in accordance with law. It appears that consequent upon the order, AO in Kanpur has taken up the re- assessment proceedings and has passed an order under Section 148A(d) of the Act and also issued a notice u/s 148. The order passed u/s 148A(d) and the notice issued u/s 148 shall be kept in abeyance and shall abide by the fresh order that may be passed by the Principal Commissioner of Income Tax –5, Kolkata in terms of the above direction.
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