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2015 (12) TMI 130 - ITAT CHENNAI

2015 (12) TMI 130 - ITAT CHENNAI - TMI - Jurisdiction of the Joint Commissioner of Income-tax without order u/s.120(4)(b) of the I.T.Act, 1961 - Held that:- The definition of the Assessing Officer under Section 2 7(A) includes the Joint Commissioner of Income Tax.

In a case which falls under proviso to Section 127(1) of the then Act, which deals with transfer from one Assessing Officer to another Assessing Officer of the same city, locality or place, no opportunity need to be given to .....

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dditions by estimating the income from sale of milk, rental receipts and interest income. The same was confirmed by the CIT(Appeals) without passing a speaking order. He has not given any reason for confirming the same, which is not proper. Therefore, it is appropriate to remit the issue to the file of the AO for fresh consideration. Accordingly, we remit the issues relating to addition on account of sale of milk, rental receipts and interest income to the file of the AO for fresh consideration .....

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ppeals) dated 30.10.2014 for the assessment years 2005-06, 2006-07, 2008-09 and 2009-10. Since, the issues involved in these appeals are common, they are clubbed together, heard together and disposed off by this common order for the sake of convenience. 2. The first common legal issue in these appeals is with regard to assumption of jurisdiction of the Joint Commissioner of Income-tax, without order u/s.120(4)(b) of the I.T.Act, 1961. 3. The ld. AR submitted that the JCIT assumed jurisdiction to .....

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.8.2011 deciding the issue against the assessee by observing as follows: 8. According to the learned Counsel for the respondents, there is a distinction between orders passed under Sections 127(1), 127 (2) and 127(3) of the Act. The assessee is confusing the issue of transfer of case under Section 127(3) of the Act as against the transfer of case under Section 127(1) and (2) of the Act. Though the provision of law is not specifically mentioned the correct provision in respect of this case will b .....

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ty, locality or place, it merely means that such an order is purely an administrative order, passed for considerations of convenience of the Department, and no possible prejudice can be involved in such a transfer. The reasons for transferring the case need not be recorded, nor is there any requirement that the reasons be given to the assessee as held by the Honourable Kerala High Court in the case of T.S.Sujatha Vs Union of India reported in (1999) 151 CTR 29." 9. Section 127(1), (2) and ( .....

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ther 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 Commissioner or Commissioner:- (a) where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director Gene .....

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ner 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 Officers (Whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (Whether with or without concurrent jurisdiction) and the offices of all such officers are situated in the same .....

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ble Supreme Court in Kashiram Aggarwalla Vs. Union of India and Others reported in AIR 1965 Supreme Court 1028, in a case of transfer of proceedings from Income Tax Officers 'D" Ward District IV(I) and 'F' Ward District IV(2), Calcutta to the Income Tax Officer 'E' Ward Companies District III, Calcutta. The challenge was made to these orders on the ground that the Board had failed to comply with a mandatory requirement as prescribed under Section 127(1) of the Act. The H .....

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d to record reasons for transfer. Paragraph 9 of the above cited decision is relevant to the present case and it reads as follows: "9. It is in the light of these considerations that we have to construe the proviso to S.127(1). As we have already indicated, the construction for which Mr.Jain contends is a reasonably possible construction. In fact, if the words used in the proviso are literally read, Mr.Jain would be justified in contending that the requirement that reasons must be recorded .....

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nts. We would accordingly hold that the impugned orders cannot be challenged on the ground that the Board has not recorded reasons in directing the transfer of the cases pending against the assessee from one Income-tax Officer to another in the same locality." (emphasis supplied) Therefore, the case of the petitioner that the opportunity should be given and a reasoned order should be passed has no legal basis. In this case, the transfer would fall within the meaning of transfer within the s .....

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Circle II, Hyderabad. Therefore, it will not apply to the facts of the present case of transfer in terms of Section 127(3) of the Act. (ii) General Exporters Vs. Commissioner of Income Tax and Another decided by the Madras High Court reported in (1998)149 CTR (Mad) 138 is also a case of transfer from Chennai to New Delhi. Therefore Section 127(2) of the Act will be attracted and not Section 127(3) of the Act. (iii) G.Mohandas and Another Vs. Commissioner of Income Tax and Others reported in (20 .....

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of Income Tax and Another rendered by the Division Bench of Gujarat High Court reported in (2011) 237 CTR (Guj) 304 is also a case which falls under Section 127(2) of the Act. (vi) Vijayasanthi Investments (P) Ltd., Vs. Chief Commissioner of Income Tax and Others rendered by the Division Bench of Andhra Pradesh High Court reported in (1991)91 CTR (AP)36 equivalent to (1991)187 ITR 405(AP) is also a case of transfer from Bombay to Visakhapatnam. 13. Therefore, all the decisions cited by the learn .....

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otracting the assessment proceedings by indulging in meaningless litigation, knowing fully well that the decision of the Five Judges Bench of the Honourable Apex Court does not support the petitioner's plea. In fact, the case of Kashiram Aggarwalla case (AIR 1965 Supreme Court 1028) is referred to in the Honourable Apex Court decision of Ajantha Industries reported in (1976) 102 ITR 281 (SC), relied upon by the petitioner's counsel. Kashiram Aggarwalla case was held to be inapplicable to .....

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oner is that the transferring officer is not vested with the power specifically and therefore, the proceedings are bad. 16. This contention appears to be totally misconceived as the definition of the Assessing Officer under Section 2 7(A) includes the Joint Commissioner of Income Tax. Therefore, the said contention is rejected as it is without any legal basis. Since the facts of the present case are similar to that considered by the Jurisdictional High Court, which is applicable to the present c .....

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