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2015 (5) TMI 797 - CALCUTTA HIGH COURT

2015 (5) TMI 797 - CALCUTTA HIGH COURT - TMI - Validity of transfer order - Held that:- From the records produced by the respondent, it appears that a notice dated 13.10.2014 was sent to the petitioner at the address recorded in the official register but came back undelivered with the remarks ‘not known’. It further appears from the postal envelope containing the said notice that a remark is made as ‘addressee moved’.

The presumption under Section 27 of the West Bengal General Clauses .....

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icle is despatched by speed post which is correctly addressed and the sufficient stamps required therefor, is paid, the authority losses the control of the said article and it would be presumed that the same has reached to the addressee. This Court can very well raise such presumption unless the materials produced before this Court speaks otherwise.

If the order of transfer is passed on 15th November, 2014, there was no occasion to send further notice by jurisdictional Commissioner at .....

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eflection of the order of transfer therein.

This Court, therefore, finds that a prima facie case has been made out which must be decided after the exchange of affidavits. The respondents are directed to file affidavit-in-opposition within a period of six weeks from date; reply, if any, be filed within one week thereafter.Let this matter appear after seven weeks as “For Orders” in the supplementary list. - WP No.579 of 2015 - Dated:- 21-5-2015 -

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the cases relating to the petitioner was transferred to New Delhi under Section 127 of the Income Tax Act, 1961. According to Mr. Poddar learned Senior Advocate for the petitioner the said order is invalid, illegal and suffers from incurable defects inasmuch as the same is passed in gross violation of the principles of natural justice and have been subsequently created and/or brought in existence in order to fill up the lacunae of a subsequent assessment orders passed by the jurisdictional Commi .....

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d in [1976] 102 ITR 281. By referring the decision of the Delhi High Court rendered in case of Smt. Sarita Jain versus Commissioner of Income Tax and Ors. reported in [2003] 261 ITR 499, Mr. Poddar would submit that the principles laid down by the Supreme Court in case of Ajantha Industries (Supra) is applied and accepted in toto. He further submits that if the postal articles have returned with the postal remarks not found , the same cannot be treated as a good service and, therefore, any order .....

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roved from the fact that subsequent letters issued by the Commissioner at Kolkata does not contain any averments and/or statements pertaining to the order passed under Section 127 of the said Act and, therefore, it is inconceivable and improbable that the notice issued under the aforesaid provision has returned with the remarks not known whereas the other notices have been duly received and served upon the assessee/petitioner. The learned Advocate for the respondent authorities submits that befo .....

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materials in this regard and matter may be finally decided after exchange of affidavits. Before proceeding to address the issues involved in this writ petition for the limited purpose of passing the interim order, this Court must record that Section 127 of the Income Tax Act bestowed power on the authorities mentioned therein to transfer any case from one Assessing Officer to another provided a reasonable opportunity of hearing is given to the assessee. Therefore, it cannot be said that the auth .....

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at any order which is passed in gross violation of the principles of natural justice cannot with stand on a legal parameters. Furthermore, Clause (a) of Sub-section (2) of Section 127 of the said Act further provides a reasonable opportunity of hearing and recording of reasons which cannot be said to be a casual exercise or ideal formalities. An opportunity of hearing is one of the facets enshrined under the Constitution provided the assessee/petitioner suffers prejudice for non-compliance there .....

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press this Court that an assessment order has been passed by the jurisdiction Commissioner at New Delhi without affording an opportunity and without having communicated to the petitioner the impugned order dated 15th November, 2014 but this Court is not impressed by such submission as the order which is passed by an authority, whose situs is, beyond the territorial jurisdiction of this High Court, on the basis of the records having transmitted and/or transferred in pursuance of the impugned orde .....

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ecording reasons under section 127(1) is a mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee . . . . When law requires reasons to be recorded in a particular order affecting prejudicially the interests of any person, who can challenge the order in court, it ceases to be a mere administrative order and the vice of violation of the principles of natural justice on account of omission .....

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d 13.10.2014 was sent to the petitioner at the address recorded in the official register but came back undelivered with the remarks not known . It further appears from the postal envelope containing the said notice that a remark is made as addressee moved . Mr. Poddar, learned Senior Advocate for the petitioner, submits that the postal remarks not known is not a good service and, therefore, no presumption can be raised on due service. The presumption under Section 27 of the West Bengal General C .....

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al article is despatched by speed post which is correctly addressed and the sufficient stamps required therefor, is paid, the authority losses the control of the said article and it would be presumed that the same has reached to the addressee. This Court can very well raise such presumption unless the materials produced before this Court speaks otherwise. If the order of transfer is passed on 15th November, 2014, there was no occasion to send further notice by jurisdictional Commissioner at Kolk .....

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on of the order of transfer therein. This Court, therefore, finds that a prima facie case has been made out which must be decided after the exchange of affidavits. The respondents are directed to file affidavit-in-opposition within a period of six weeks from date; reply, if any, be filed within one week thereafter. Let this matter appear after seven weeks as For Orders in the supplementary list. There shall be a stay of the operation of the impugned order dated 15th November, 2014 passed by the .....

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