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2016 (10) TMI 776 - BOMBAY HIGH COURT

2016 (10) TMI 776 - BOMBAY HIGH COURT - TMI - Challenge to the transfer of case u/s 127 - initially assessee participated in the assessment proceedings and subsequently challenged the transfer orders - period of limitation for passing assessment u/s 153A - Held that:- if the Petitioner were aggrieved by the order dated 9 December, 2013, it ought to have challenged the same immediately before the Assessing Officer at Raipur exercised his jurisdiction consequent to the transfer. In fact, in this c .....

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th Section 153A and 143(2) of the Act and also particularly in penalty proceedings by challenging the same under the Act before the CIT(A). - Therefore, the contention of the Petitioner that it had not participated in the assessment proceedings, consequent to the impugned order order of transfer under Section 127(2) of the Act, cannot be accepted. - It is also to be noted that it is an admitted position between the parties that time to pass an Assessment Order under Section 153A of the .....

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N.A. Kazi for Respondent ORDER P. C. This petition under Article 226 of the Constitution of India challenges : (i) Order dated 9 December 2013 passed by the Commissioner of Income Tax, Mumbai under Section 127 of the Incometax Act, 1961 ( the Act), transferring the Petitioner's assessment proceedings from Mumbai to Raipur. This as a part of centralizing all assessment proceedings belonging to the Petitioner and its group; and (ii) Order dated 23 January 2014 passed by the Central Board of D .....

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t 2013, a show cause notice was issued to the Petitioner. This notice invited objections to the proposed transfer under Section 127(2) of the Act of Petitioner's income tax assessment proceedings (case) from Mumbai to Raipur (in the charge of Commissioner of Income Tax at Bhopal), for proper coordinated investigation. (iii) The Petitioner objected to the proposed transfer by its letter dated 5 September 2013. However, the Commissioner of Income Tax, Mumbai did not accept the Petitioner's .....

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ices under Section 153A of the Act, the Petitioner was called upon to file its return of income for the Assessment Years 2007-08 to 2012-13. (v) Thereafter on 14th August, 2014 notice was also issued to the Petitioner under Section 142(1) read with Section 153A/143(2) of the Act for the six Assessment Years 2007-08 to 2012-13. The Petitioner states that it partly responded to the above notice. Thereafter the Petitioner also filed its return of income for the six Assessment Years on 25 August 201 .....

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e representations dated 13th May, 2013 and 9th December, 2013 to Central Board of Direct Taxes (CBDT). By its representations, the Petitioner sought centralization of the Petitioner's case alongwith its group companies to Mumbai. By order dated 23rd January, 2014, the CBDT rejected the representations, seeking centralization of cases at Mumbai. (viii)The impugned order dated 9 December 2013 of the Commissioner of Income Tax, Mumbai and the consequent proceedings taken by the Assessing Office .....

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im order. (x) Thereafter, on 14 September, 2016,the High Court of Chhattisgarh dismissed the Petition filed on 27th February, 2015 as withdrawn. However, liberty was granted to the Petitioner to file a fresh Petition. (xi) Thereafter, the Petitioner has filed the present Petition in this Court on 22 September,2016. This Petition challenges the impugned orders dated 9 December, 2013 and 23 January, 2014. 3 At the very outset, Mr. N.C. Mohanty, learned Counsel appearing for the Revenue raised a pr .....

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exercised jurisdiction consequent to the transfer of the Petitioner's case and the cases of its group companies by issuing notices under Section 153A of the Act as far back as 31 December, 2013. The Petitioner had also responded to the notices by filing return of income and also responded to the notice issued under Section 142(1) read with Section 153A/143(2) of the Act. 4 Therefore, before considering the merits of the Petitioner's challenge, in view of the above, we called upon the Pet .....

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ted that the Petitioner had not waived its objections to the jurisdiction issue raised in this Petition. This is for the reason that even though it had responded to the notice issued by the Assessing Officer at Raipur, it did not wait till an order was passed by the Assessing Officer to file this Petition. Further, the Petitioner merely seeks a prospective transfer from Raipur to Mumbai. Therefore, all the proceedings taken at Raipur till date will not be in vain and proceedings can be continued .....

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of certiorari quashing the impugned orders dated 9 December 2013 and 23 January 2014. It is a settled position of law that a person who seeks to exercise an extraordinary jurisdiction of the Writ Court should move the Writ Court expeditiously. The Apex Court in case of Chennai Metropolitan Water Supply And Sewerage Board Vs. T.T. Murali Babu (2014) 4 SCC 108, in paragraphs 16 and 17 observed as under : 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court i .....

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e lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotton the basic norms, namely, procrastination is the greatest thief of time and second, law does not permit one to sleep an .....

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Petition, filed before the Chhattisgrah High Court on 27 February, 2015. The Chhatisgrah High Court granted an adinterim stay on 3 March, 2015 and it continued till the Petition was withdrawn on 14 September, 2016. Thus, it is argued, the delay stands explained. We find that in the present facts, the impugned orders are dated 9 December, 2013 and 23 January, 2014. The Assessing Officer at Raipur issued notices under Section 153A of the Act on 31st December, 2013. The Petitioner responded to the .....

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2016, when the Petition was withdrawn with liberty to file a fresh petition. Thus, it cannot be said that the High Court of Chhatisgarh was satisfied with the reasons for delay stated by the Petitioner in its petition filed before the High Court of Chhatisgarh as it had no occasion to examine it. We have perused the copy of the petition filed by the Petitioner before the High Court of Chhatisgarh (as annexed to the Petition) wherein the only reason offered is that rectification application to t .....

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tion under Article 226 of the Constitution of India. It is a prerogative writ and not a writ of course. In such cases, it is for the Petitioner to explain the delay. It is the Petitioner who seeks the extraordinary remedy. It is not for the Respondents to explain the prejudice caused to them in view of the delay, without the Petitioner first sufficiently explaining the reason for the delay. We may at this stage, also point out that on perusal of a copy of the Writ Petition filed before the Chhat .....

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challenge the impugned orders dated 9 December 2013 and 23 January 2014 as they have acquiesced in them as is evident from its conduct. It must be borne in mind that the order under Section 127(2) of the Act dated 9 December 2013 was a reasoned order, preceded by a show cause notice. Therefore, if the Petitioner were aggrieved by the order dated 9 December, 2013, it ought to have challenged the same immediately before the Assessing Officer at Raipur exercised his jurisdiction consequent to the .....

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