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2015 (5) TMI 152 - AT - Income TaxService of notice u/s 143(2) - jurisdiction of the assessing officer to issue notice - Held that:- Notice in the case of the Assessee has been issued on 13.8.2009 u/s 143(2) by the AO, Agra. Sec. 143(2) uses the word ‘service of the notice’, not issuing of the notice but since the Assessee has not rebutted this fact by filing Affidavit, therefore, we have held in the preceding paragraphs that this is a case where it would be deemed that the notice has been duly served on the Assessee. In view of this fact, after the expiry of 3 days the Assessee should have filed the objection about the jurisdiction within 30 days i.e. upto 15.9.2009 but the Assessee has not filed any such objection. Therefore, we do not find any illegality or infirmity in the order of CIT(A) in this regard but the remote question before is if the AO, Agra was having jurisdiction on the Assessee how can he himself transfer the file to the AO, Ward 5(3), New Delhi merely on the basis of change of address in the PAN. There is a separate provision made u/s 127 in this regard. On perusal of this section it is apparent that u/s 127(2) if the AO from whom the case is to be transferred and the AO to whom the case is to be transferred are not under the jurisdiction of same Chief Commissioner or Commissioner, the Chief Commissioner or Commissioner to whom such AO are subordinate are in agreement, then, the Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred has to give a reasonable opportunity of being heard to the Assessee before passing the order for transfer. It is not denied in the case of the Assessee that the AO at Agra and the AO at New Delhi were under the jurisdiction of different CCIT as well as different Commissioners. Therefore, the AO, Agra does not have any jurisdiction to transfer the file to AO at New Delhi. The filed could have been transferred only by the Chief Commissioner or the Commissioner of the AO, Agra after giving hearing to the Assessee. In this case, we noted that the AO, Agra has not complied with the mandatory requirement of Sec. 127 but suo moto transferred the file from Agra to AO, New Delhi as if he has entered into the shoes of the Chief Commissioner or Commissioner of Income Tax. A transfer can be made by the Commissioner from one officer to another under section 127 of the Income Tax Act, 1961. But it should be for good reason after a show-cause notice to the assessee, where transfer is from one station to another. Where no reasons were assigned for the transfer and a writ petition was filed against the same before the High Court, it was explained that the Commissioner had recorded his reasons, though he did not communicate the same. The High Court in Deep Malhotra vs. Chief CIT, 334 ITR 232 (P&H) pointed out that there are a number of decisions of the High Court and that of the Supreme Court in Ajantha Industries vs. CBDT, (1975 (12) TMI 1 - SUPREME Court) as to the need for a speaking order. Since the alleged reasons recorded were not part of the order, the orders were held to be invalid, while leaving it open to the Commissioner to pass a fresh order. In the impugned case there is a violation of the provisions of Sec. 127 and in view of there being no transfer order being passed by the Chief Commissioner or Commissioner, we hold that the order passed by the AO, Ward-5(3), New Delhi for the impugned assessment year is invalid and void ab initio - Decided in favour of assessee.
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