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The Commissioner of Income Tax-I, Income Tax Officer-Ward-I (I) , Deputy Commissioner of Income Tax Versus Noorul Islam Educational Trust

2015 (3) TMI 810 - MADRAS HIGH COURT

Power to transfer cases - impugned transfer has been made from the file of second respondent to the file of third respondent - whether the order of transfer dated 16.12.2008 made by the first appellant/first respondent is valid as per law or the same is liable to be quashed? - Held that:- It is true that the respondent/petitioner is having separate educational institutions in and around Thuckalay, Kanyakumari District. It is also true that the Chairman of the respondent/ petitioner is running se .....

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Since Section 127(2)(a) is nothing, but a machinery provision and since no serious allegations have been levelled against the appellants/respondents, this Court is of the considered view that the first respondent/first appellant is having power of transfer even without assigning any reason and therefore the order passed by the first appellant/first respondent is perfectly valid in law and the same need not be quashed. The learned Single Judge has simply observed that such transfer is n .....

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n JUDGMENT (Judgment of the Court was delivered by A.SELVAM,J.) Challenge in this Writ Appeal is to the order passed in W.P(MD)No.60 of 2009 dated 11.12.2009 by the learned Single Judge of this Court. 2.The respondent herein as petitioner has filed W.P(MD)No.60 of 2009 under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records in respect of the order passed in C.No.464/50/91-92/CIT-1, dated 16.12.2008 by the first respondent and quas .....

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is not valid. The first respondent ought to have transferred the case of the petitioner to any Assistant Commissioner of Income Tax within Tamil Nadu. The first respondent ought to have considered necessity of retaining assessment of the petitioner in Tamil Nadu. The first respondent without considering the contentions putforth on the side of the petitioner has erroneously passed the impugned order dated 16.12.2008 and thereby made such transfer. Under the said circumstances, the present writ pe .....

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present writ petition deserves to be dismissed. 5.On the basis of divergent contentions raised on either side, the learned Single Judge has allowed W.P(MD)No.60 of 2009 by way of holding that the transfer in question is not justified and ultimately quashed the order dated 16.12.2008 passed by the first respondent. The order passed by the learned Single Judge is being challenged in the present Writ Appeal. 6.The short point which comes up for consideration in the present Writ Appeal is as to whet .....

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, 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 .....

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er; (b)where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. (3)Nothing in sub-section(1) or sub-section(2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing O .....

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transferred. Explanation.- In Section 120 and this section, the word ?case?, in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year?. 8.A mere re .....

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fer has been made from the file of second respondent to the file of third respondent. The only condition made in Section 127(2)(a) is that such transfer should be made after giving reasonable opportunity to the concerned assessee. Further Section 127 does not speak about any reason. Therefore it is pellucid that the first respondent/first appellant is having unfettered power of transfer under the said Section. With these legal backdrops, the Court has to analyze as to whether the impugned order .....

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l case, after observing all formalities mentioned in Section 127(2)(a) of the Income Tax Act, 1961, the first respondent has passed the impugned order and the learned Single Judge without considering the fact that the said Section is nothing, but a machinery to collect income tax, has erroneously allowed W.P(MD)No.60 of 2009 and therefore the order passed by the learned Single Judge is liable to be set aside. 11.In order to sustain the order passed by the learned Single Judge, the learned counse .....

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.60 of 2009 after holding that the transfer is not justified and therefore the order passed by the learned Single Judge does not call for any interference. 12.As pointed out earlier, the order in question has to be passed by the first respondent/first appellant only by way of invoking the provision of Section 127(2)(a) of the Income Tax Act, 1961. As per the said provision, the first respondent/first appellant is having power of transfer after giving reasonable opportunity to the particular asse .....

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e respondent/petitioner is having several educational institutions in and around Thuckalay, Kanyakumari District. It is also an admitted fact that the Chairman of the trust by name A.P.Majeed Khan in individual capacity is having several similar institutions in Kerala State. With regard to detection of an undisclosed income of ₹ 70,17,400/-, no objection has been raised on the side of the respondent/petitioner. 15.As pointed out earlier, the only point now winched to the fore is as to whet .....

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purpose for which the said provision is in existence. In paragraph No.14 of the decision referred to supra, it is stated like thus: ?An order of transfer is passed for the purpose of assessment of income. It serves a larger purpose. Such an order has to be passed in public interest?. In paragraph No.17, it is observed that power of transfer is in effect provides for a machinery provision. It must be given its full effect. It must be construed in a manner so as to make it workable. Even Section 1 .....

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id Act does not specify any reason(s) for making transfer and further nobody can say that the first respondent/ first appellant is not having such kind of power. 19.The specific contention putforth on the side of the appellants/respondents is that for having coordinate enquiry and investigation in respect of cases of Noorul Islam Group and in individual capacity of A.P.Majeed Khan, the transfer in question has been made. 20.It is not the contention of the respondent/petitioner that its Chairman .....

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er is having separate educational institutions in and around Thuckalay, Kanyakumari District. It is also true that the Chairman of the respondent/ petitioner is running several educational institutions in Kerala in his individual capacity. But no-one can say that the said A.P.Majeed Khan is not getting income from the institutions which are being run by the trust as well as from the institutions which are being run by him in his individual capacity. Under the said circumstances for making effect .....

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