TMI Blog2016 (8) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order of transfer deserves to be interfered on the ground that no reasonable opportunity was granted to Assessee. In the present case, reason of centralized assessment as a result of search and seizure conducted at entire group of Assessee, in our view, is justified cause for transferring all the cases so that the same may be handled by one officer at one place. We find some other reasons also to non suit the petitioner. When petitioner received notice from Assessing Officer to whom cases were transferred, at the earliest opportunity, he did not raise any objection that cases have been transferred without complying requirement of Section 127. It is only at the fag end when there remains a short time, rendering his cases time barred, he raised this objection obviously to frustrate the assessment. Lastly, we are also informed that assessments have already been made and petitioner has filed appeals, which are pending. These facts, in our view, also justify to decline interference in writ jurisdiction under Article 226 of Constitution of India. Thus, this is not a fit case where interference by this Court in extraordinary jurisdiction would be justified. - Writ Tax No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others, (2013) 352 ITR 38 (Bom) . 4. Sri Manish Goyal, learned counsel for respondents, per contra, submitted that search and seizure operation was carried out at different places of petitioner on 1st February, 2012 which continued up to 3rd February, 2012. Petitioner challenged search and seizure proceedings and warrant of authorization in Writ (Tax) No. 451 of 2012, Harbhajan Singh Chadha and others Vs. Director of Income Tax and others. When aforesaid writ petition was pending, having regard to incriminating material and other valuable items and cash found in search and seizure, Director of Income Tax (Intelligence and Criminal Investigation), New Delhi [(hereinafter referred to as DIT(ICI) ] requested vide letter dated 1.5.2012 to Chief Commissioner of Income Tax (Central) New Delhi (hereinafter referred to as 'CCIT (Central)' that all cases need be centralized and assessments be made by one Assessing Officer in Central Circle, Delhi so that coordinated investigation leading to meaningful conclusion may be carried out. Consequent thereto, and finding request to be genuine, CCIT (Central) vide letter dated 18/21 May, 2012, communicated to Commissioner of Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been provided and, in absence thereof, it is not possible to file return. He, therefore, prayed for supply of copy of seized material. He also pointed out that challenging aforesaid search and seizure, a writ petition is pending in High Court, hence time to file return be extended till the date of disposal of writ petition or till the date of supply of seized material, whichever is later. 8. Assessing Officer at New Delhi vide order dated 10.10.2013 informed petitioner that there is no restraint order in pending Writ Petition No. 451 (Tax) of 2012, therefore, petitioner should file return since time to complete assessment would expire on 31st March, 2014. 9. For the first time, vide letter dated 18.10.2013, petitioner took objection with regard to transfer of cases stating that no transfer order has been served upon him and, therefore, Assessing Officer at New Delhi should inform as to how jurisdiction stood conferred upon him. 10. Assessing Officer at New Delhi then issued a notice dated 2nd January, 2014 for proceeding under Section 276 CC and 272 (3). This notice was replied by petitioner through his Chartered Accountant on 16th January, 2014, stating that A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case have taken defence that grant of opportunity was not found feasible, therefore, referring to the words wherever it is possible to do so , used in Section 127(2)(a), submission is that present case is one where grant of opportunity to petitioner was not possible and hence it will not vitiate impugned order of transfer. 15. We find that in various authorities wherein validity of order of transfer under Section 127(2)(a) has been dealt with, consensus view is that, opportunity of hearing if not afforded or reasons not recorded, order of transfer would be bad. However, no authority has been placed before us wherein this phrase wherever it is possible to do so , has been considered in the context of Section 127 of Act, 1961. No authority is cited to show meaning of the words wherever it is possible to do so and how and in what manner, the aforesaid phrase would dilute or mitigate, otherwise mandate of legislature, of affording a reasonable opportunity of being heard to Assessee, before passing order of transfer. 16. In Sanjay Gupta Vs. Union of India (supra) , notices were issued to Assessee inviting objections Assessee actually filed objections and thereafter transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice on account of omission to communicate reasons is not expiated. 18. In Smt. Chandra Prabha Kushwaha and others Vs. CIT and others (supra) neither any opportunity was afforded to Assessee nor reasons were communicated. Revenue admitted this flaw and did not take defence that opportunity was not possible in that matter. Court therefore followed the decision in Ajantha Industries Vs. Central Board of Direct Taxes (supra) and earlier Division Bench decision of this Court in Vinay Kumar Jaiswal Vs. CIT, (1996) 221 ITR 568 (All); Ashok Kumar Jain Vs. Commissioner of Income Tax and others Writ Tax No. 620 of 2010 decided on 7.7.2014 and held that there is an admitted case of denial of opportunity and lack of reason hence order of transfer is bad. Revenue in the relied on cases also did not take any defence that opportunity was not possible in the facts of the cases. 19. Propositions of law with respect to application of principles of natural justice, when specifically incorporated in a statute, and requirement of recording of reasons, distinguished from conclusions, are well established. 20. However, in this particular case, looking into the facts, we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty comes to conclusion that it is not possible to give a reasonable opportunity to Assessee, same can be dispensed with. However, it is not so with regard to requirement that reasons must be recorded for making transfer. So far as Section 127(1) is concerned, there is no dispute about this position. The twin requirement under Section 127 has some reasons. It is true that under Act, 1961 i.e. Section 120 read with Section 124, Assessing Officer is vested with jurisdiction over an area where any person carrying on the business or profession resides. Therefore, in normal course, an Assessee is entitled to be assessed by Assessing Officer having jurisdiction as stated in the aforesaid provisions, but there is no such vested right in an Assessee to be assessed by a particular Assessing Officer. In given case, Competent Authority may transfer a matter from one Assessing Officer to another, may be having effect of change of place also but that will not affect any substantial right of Assessee. 23. On this aspect, we find support from judgment in Panna Lal Binjraj Vs. Union of India, AIR 1957 (SC) 397 , wherein Court held that infringement of right to be assessed by Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its logical meaning and consequence unless there appears to be some inconsistency or conflict resulting in consequences to be disturbing or there are other compelling reasons showing that some part does not convey the same meaning as it ought to be or the same is redundant or is inconsistent with rest of the provisions. However that is not so particular in this case and from judgment of Constitution Bench in Panna Lal Binjraj Vs. Union of India (supra) , we find that requirement of opportunity has not been held mandatory, and mandate is available only for requirement of recording of reason. 26. Absence of opportunity to Assessee has been explained on the ground that there is a large number of Assessees' who were under different Assessing Officers and some of the matter were already assigned to Assessing Officer under Central Range-6, New Delhi. Thus for coordinated assessment by an authority who has a complete information with him, transfer of cases from Moradabad which was under one Commissioner, to Delhi which was under another Commissioner, was found expedient and since time was short as a period would have expired on 31st March, 2012, Competent Authority in its wisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed for the purpose of assessment of income. It serves a larger purpose. Such an order has to be passed in public interest. It may transfer cases involving more than one assessment year. Power of transfer in fact provides for a machinery provision and it must be given its full effect. It must be construed in a manner so as to make it workable. It should be construed to effectuate a charging section so as to allow the authorities concerned to do so in a manner wherefor statute was affected. Power of transfer can be exercised for regular assessment as well as block assessment. 31. In the present case, reason of centralized assessment as a result of search and seizure conducted at entire group of Assessee, in our view, is justified cause for transferring all the cases so that the same may be handled by one officer at one place. 32. We find some other reasons also to non suit the petitioner. When petitioner received notice from Assessing Officer to whom cases were transferred, at the earliest opportunity, he did not raise any objection that cases have been transferred without complying requirement of Section 127. It is only at the fag end when there remains a short time, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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