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TMI Blog1981 (6) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... e order on the ground that it is not a speaking one, in addition to the ground that even if he could have passed any such order of transfer he could have transferred the petitioner's case for a particular year only. Since the order is omnibus in nature and does not specifically speak as to for which year the case has been transferred, it is clearly in contravention of section 13(1) of the Jammu and Kashmir General Sales Tax Act, hereinafter to be referred to as the Act, and requires to be set aside. In the same strain he has also challenged the constitutional validity of section 13(1) of the Act, and in support of his contention relied upon two Supreme Court decisions, namely, Bidi Supply Co. v. Union of India [1956] 29 ITR 717 (SC); [1956] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. An order of transfer contemplated by section 13(1) is purely administrative in character and does not entail any civil consequences. There is no provision in the Act which creates a right in an assessee to be assessed by a particular authority, which may be said to have been taken away by not giving him a prior notice or an opportunity of being heard before making an order for transfer of his case. Mr. Gupta, the learned counsel for the petitioner, however, relies upon rule 3(b) of the Rules made under the Act. But this rule merely defines the jurisdiction of the Assessing Authority and does not say further that an assessee shall have a right to be assessed by him alone. It is, therefore, impossible to read in section 13(1) a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not specify the year for which the case was transferred to a different authority. Section 5(7A) of the Income-tax Act is in Pari materia with section 13(1) of the Act. It is true that the court did make some observations pointing out to the propriety of giving a prior notice to the assessee, nevertheless it did not hold that the section in its present form was constitutionally invalid. At that time the law as it stood defined a case to mean a case for a particular year only. In the present case the definition of the word "case" has been much widened by the explanation appended to section 13(1) of the Act, which includes a case which may arise in future as well. The ratio of this judgment, therefore, cannot apply to the present case. Pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utionality. They, therefore, upheld its constitutional validity, but at the same time made certain observations, purely advisory in character, that the legislature would have been better advised, had it conferred a right on the assessee of being heard prior to passing any order of transfer under section 5(7A), as that would help the court in judging the bona fides of the order. It was pursuant to these observations that such a provision was kept in the Indian Income-tax Act of 1961. It is thus obvious that section 13(1) of the Act cannot be said to be violative of article 14 of the Constitution, even though it may be only appropriate to observe that the legislature would be well-advised in case a provision corresponding to section 127 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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