TMI Blog1975 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1961 (briefly the Act), proposing to transfer their case files "for facility of investigation" from the respective Income-tax Officer at Nellore to the Income-tax Officer, B Ward, Special Circle II, Hyderabad. By this notice they were also asked to submit in writing if they had any objection to the proposed transfer within 15 days of receipt of the notice. The appellants made their representation objecting to the transfer and on July 26, 1973, the Central Board passed the impugned order transferring the cases from Nellore to Hyderabad. There is no provision of appeal or revision under the Act against such orders of transfer. The appellants, therefore, preferred an application under article 226 of the Constitution before the High Court of Andhra Pradesh questioning the validity of the order chiefly on the ground of violation of the principles of natural justice inasmuch as no reasons were given nor communicated in the said order. The learned single judge after having called for the relevant file found that certain reasons were recorded by the Central Board prior to the passing of the impugned order and held that mere failure to communicate the reasons to the appellants was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Act which may be commenced after the date of such order or direction in respect of any year." The section was amended by section 27 of Finance (No. 2) Act, 1967, and section 127 since then stands as under; "(1) The 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 any Income-tax Officer or Income-tax Officers subordinate to him to any other Income-tax Officer or Income-tax Officers also subordinate to him and the Board may similarly transfer any case from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers: Provided that nothing in this sub-section shall be deemed to require any such opportunity to be given where the transfer is from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or income-tax Officers and the offices of all such Income-tax Officers are situated in the same city, locality or place: Provided further that where any case has been transferred from any Income-tax Officer or Income-tax Officers to two or more Income-tax Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced however briefly to writing......There is no presumption against the bona fides or the honesty of an assessee and normally the income-tax authorities would not be justified in refusing to an assessee a reasonable opportunity of representing his views when any order to the prejudice of the normal procedure laid down in section 64(1) and (2) of the Act is sought to be made against him, be it a transfer from one Income-tax Officer to another within the State or from an Income-tax Officer within the State to an Income-tax Officer without it, except of course where the very object of the transfer would be frustrated if notice was given to the party affected. If the reasons for making the order are reduced however briefly to writing it will also help the assessee in appreciating the circumstances which make it necessary or desirable for the Commissioner of Income-tax or the Central Board of Revenue, as the case may be, to transfer his case under section 5(7A) of the Act and it will also help the court in determining the bona fides of the order as passed if and when the same is challenged in court as mala fide or discriminatory. It is to be hoped that the income-tax authorities will ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have given above, we have to hold that the said decision is not correct. The appellant drew our attention to a decision of this court in Shri Pragdas Umer Vaishya v. Union of India, where rule 55 of the Mineral Concession Rules, 1960, providing for exercise of revisional power by the Central Government was noticed. It was held that under rule 55 the Central Government in disposing of the revision application must record its reasons and communicate these reasons to the parties affected thereby. It was further held that the reasons could not be gathered from the notings in the files of the Central Government. Recording of reasons and disclosure thereof is not a mere formality. Mr. Sharma drew our attention to a decision of this court in Kashiram Aggarwalla v. Union of India. It is submitted that this court took the view that orders under section 127(1) are held in that decision to be "purely administrative in nature" passed for consideration of convenience and no possible prejudice could be involved in the transfer. It was also held therein that under the proviso to section 127(1) it was not necessary to give the appellant an opportunity to be heard and there was consequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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