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2016 (7) TMI 711 - MADRAS HIGH COURT

2016 (7) TMI 711 - MADRAS HIGH COURT - TMI - Transfer of cases - Held that:- The petitioner has sought for a direction to transfer their cases pertaining to the assessment proceedings for the assessment years 2008-09 to 2014-15 to some other officer inspite of the first respondent. However, the fact remains, the first respondent has concluded the proceedings and passed an order of assessment, which has been communicated to the petitioners and the petitioners have filed appeals before the Commiss .....

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in relying upon a bogus fax and letter which has no evidenciary value. Thus, the petitioners having raised this issue before the appellate authority as one of the grounds of challenge to the assessment order, this issue need not be decided in this Writ Petition in the light of the prayer sought for. - The present Writ Petitions are only an attempt to thwart the assessment proceedings, especially when, the assessment beyond 31.03.2016, would become time barred. The Assessing Officer has concl .....

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se. Further, the third respondent was functioning as a Deputy Director of Income Investigation for the period from 17.06.2013 to 18.07.2014 and thereafter, he has been transferred and posted as a Deputy Commissioner of Income Tax, Corporate circle-6(2), Chennai. The assessment proceedings were carried on by the first respondent and the hearings commenced only on 12.10.2015, much after the second respondent was transferred from Coimbatore i.e., on 18.07.2014. In fact, even on the date when the no .....

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umar Chopda, learned counsel for the respondent and with consent on either side, the Writ Petitions are taken up for final disposal. 2. The petitioner in W.P.No.11225 of 2016 is Sri.D.Ramagopal, who is husband of the petitioner in W.P.No.11226 of 2016 and in both these Writ Petitions, the petitioners seek for identical relief wherein prayer has been made for issuance of a Writ of Mandamus to direct the third respondent, the Commissioner of Income Tax, to withdraw the Income Tax Assessment procee .....

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under sub-section (1) of Section 127 of the Income Tax Act, the Director General or Chief Commissioner or Commissioner 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 Officer subordinate to him whether with or without concurrent jurisdiction to any other Assessing Officer or Assessing Officers whether with or without concurrent jurisdi .....

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quire any such opportunity to be given where the transfer is from an Assessing Officer to any other Assessing Officers situated in the same city or locality and in terms of sub-section (4), transfer can be made at any stage and shall not render necessary the reissue of any notice. 4. In the case of Autofin Ltd., vs. Commissioner of Income Tax reported in 1977 (106) ITR 638, the Andhra Pradesh High Court held that the assessee could move the Commissioner or the Board for transfer of his case and .....

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come Tax Act. From the documents placed before this Court in the form of typed set of papers and additional typed set of papers, it is seen that the petitioners have not moved the Commissioner requesting for transfer of the case. In such circumstances, without even a demand or a request to the third respondent to exercise the statutory power, a Writ of Mandamus as sought for cannot be issued, as a request is a necessary concomitant before approaching this Court by way of a Writ Petition, more pa .....

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in her personal capacity, so also the second respondent who appears to have been an Officer, who was earlier working in the said station in the capacity of the Deputy Director of Income Tax, has also been roped in this litigation and impleaded in his personal capacity. 6. The learned counsel for the petitioner submitted that the petitioner has been unreasonably and unnecessarily harassed by the first respondent and submitted that the petitioner is a law abiding citizen and referred to the order .....

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fax message was not furnished to the petitioner and when it was ultimately given, it was found to be a bogus document, the signature was fabricated and based on such document, proceedings have been initiated to harass the petitioners. The learned counsel further submitted that the said P.R.Balakrishnan is not traceable and this is evident from the other orders passed by this Court in collateral proceedings at the instance of the petitioner Sri.D.Ramgopal and one Sri.R.Viswanathan and the Police .....

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e documents produced by the petitioner and uttered certain derogative remarks in local Tamil slang and therefore, taking into consideration all the factual circumstances, the case ought to be transferred to some other officer by the third respondent. 7. The learned Standing counsel for the respondent pointed out that sofar as the petitioner in W.P.No.11226 of 2016 is concerned even at the time when the Writ Petition was filed, the order of assessment had already been passed and communicated to t .....

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e first respondent had completed the proceedings and also passed an order of assessment and the same was also despatched to the petitioner. (ii). in respect of the petitioner in W.P.No.11225 of 2016, the learned Standing Counsel submitted that the petitioner had appeared before the first respondent, on 18/3/2016 and the proceeding was also completed. 2. Further, the learned Standing Counsel submitted that the first respondent is not going to call the petitioner, in W.P.No.11225 of 2016, again fo .....

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affidavits filed by the respondents 1 and 2. 9. After hearing the learned counsel appearing for the parties and perusing the materials placed on record, two factors are to be taken note of before considering as to whether the prayer sought for by the petitioners could be acceded. The first is that the petitioner has sought for a direction to transfer their cases pertaining to the assessment proceedings for the assessment years 2008-09 to 2014-15 to some other officer inspite of the first respon .....

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annot be considered. 10. The second aspect which has to be seen is whether the petitioner's contention that the letter dated 19.02.2014, sent by P.R.Balakrishnan is a genuine document or a false and fabricated document, has to be examined at this juncture. On a perusal of the grounds of appeal filed by the petitioner before the Appellate Authority against the assessment order, the petitioner has raised a ground stating that the Assessing Officer erred in relying upon a bogus fax and letter w .....

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as rejoinder affidavit, finds that the allegations are frivolous and there is no substantial proof to establish any malafide intention on the part of the respondents 1 and 2. While on this issue, it would be relevant to point out that the petitioners had been cooperating in the assessment proceedings by appearing before the first respondent on 12.10.2015, 25.01.2016, 03.03.2016, 05.03.2016, 08.03.2016, 10.03.2016, 16.03.2016 and 18.03.2016. Thus, from October 2015 to middle of March 2016, the pe .....

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.03.2016, would become time barred. The Assessing Officer has concluded the hearing on 18.03.2016 and passed the assessment order on 30.03.2016, which is subject matter of challenge before the appellate authority. Therefore, it is one more reason to reject the relief sought for in this Writ Petitions. 12. The learned Senior counsel for the petitioner vehemently contended that the assessment order was not passed in the case of petitioner in W.P.No.11226 of 2016 on 22.03.2016 and it is wrong to st .....

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ore - 641 006. The said letter has been re-directed to No.116A, West Bashiyam Road, R.S.Puram, Coimbatore. The cover has gone to redirected address and returned to the sender (office of the first respondent) with postal endorsement 'insufficient address', no such person R.Jayanthi Sri at the above office (R.S.Puram) . This has been received by the office of the first respondent on 28.03.2016 and once again, sent by speed post on 28.03.2016 and received by the petitioner on 30.03.2016. Th .....

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