TMI Blog2010 (9) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Learned advocate for the respondents is directed to waive service. Having regard to the controversy involved in the present petition, which lies in a very narrow compass, the matter is taken up for final hearing today. 2. This petition has been filed with the following prayers : "The petitioner, therefore, prays that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, direction or order and be pleased to: (a) quash and set aside the impugned order dated 11th Nov., 2009 at Annex. 'A' and the impugned notice issued on 23rd Feb., 2010 at Annex. 'B' to this petition; (b) pending the admission, hearing and final disposal of this petition, to stay implementation and operation of the order at Annex. 'A', and of the notice at Annex. 'B' of this petition and stay further proceeding for the transfer of the petitioner's case from Ahmedabad to Bhopal; (c) any other and further relief deemed just and proper be granted in the interest of justice; (d) to provide for the cost of this petition." 3. The facts stated briefly are that vide noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er requested the respondent No. 1 not to transfer the records relating to the petitioner's case to Bhopal, specially in view of the correspondence of the Chief CIT, Ahmedabad with his counterpart in Bhopal. Subsequently, the Asstt. CIT-1(1), Bhopal, issued a notice dated 23-2-2010, under section 153C of the Act to the petitioner. Being aggrieved, the petitioner has filed the present petition seeking relief noted hereinabove. 5. Assailing the impugned order, Mr. S.N. Soparkar, senior advocate, learned counsel for the petitioner invited attention to the provisions of section 127 of the Act to point out that in a case where the Assessing Officer from whom the case is to be transferred and the Assessing Officer to whom the case is to be transferred are not subordinate to the same Director General, or Chief CIT or CIT, two basic requirements are required to be satisfied before making an order transferring the case under section 127(2) of the Act, viz., the concerned Director General, Chief CIT or CIT from whose jurisdiction the case is to be transferred is required to give the assessee a reasonable opportunity of being heard; and the concerned authority is required to record reasons f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (1) The Director General or Chief CIT or CIT 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 Director General or Chief CIT or CIT, (a) where the Director Generals or Chief CITs or CITs to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief CIT or CIT from whose jurisdiction the case is to be transferred 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, pass the order; (b) where the Director Generals or Chief CITs or CITs aforesaid are not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o note that a specific contention has been raised in para 3.2 of the petition that the respondent No. 1 has acted illegally and without jurisdiction in not passing a speaking and reasoned order, however, despite the fact that the affidavit in reply has been made by the respondent No. 1 CIT, Ahmedabad-III, there is no averment to the effect that reasons have in fact been recorded in the file nor have the reasons recorded, if any, been placed on record. Moreover, in the communication dated 31-12-2009 of the office of the Chief CIT, Ahmedabad-I addressed to the Director General of IT (Inv.), Bhopal, (Annex. G to the petition), it has been stated thus: "In this connection, CIT Ahmedabad-I, Ahmedabad vide letter No. CIT/ABD-I/A-18/Cent./2009-10, dated 13th Nov., 2009 (copy enclosed for ready reference) submitted that in the case of M/s Dilip Avtar Construction (P.) Ltd. the assessee has filed objections to the proposed centralization. vide this office letter of even No. dated 23rd Nov., 2009 (copy enclosed for ready reference) the Director of IT (Inv.), Bhopal has been requested to forward detailed reasons for proposed centralization. In the case of Smt. Madhu Khurana the CIT, Ahmedab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king an order of transfer the legislature has ordinarily imposed the requirement of a show-cause notice and also recording of reasons. The question then arises whether the reasons are at all required to be communicated to the assessee. It is submitted, on behalf of the Revenue, that the very fact that reasons are recorded in the file, although these are not communicated to the assessee, fully meets the requirement section 127(1). We are unable to accept this submission. The reason for recording of reasons in the order and making these reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under article 226 of the Constitution or even this Court under article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is mala fide or arbitrary or that it is based on irrelevant and extraneous considerations. Whether such a writ or special leave application ultimately fails is not relevant for a decision of the question. We are clearly of opinion that the requirement of recording reasons under section 127(1) is a mandatory direction under the law and non ..... X X X X Extracts X X X X X X X X Extracts X X X X
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