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M/s. Advantage Strategic Consulting Private Limited Versus The Principal Commissioner of Income Tax, The Assistant Commissioner of Income Tax

2017 (12) TMI 412 - MADRAS HIGH COURT

Transfer of case u/s 127 - Centralization of Search and Seizure cases - violation of principles of natural justice - recording of reasons - Held that:- Sub-section (3) of Section 127 of the Act does not commence with a non-obstante clause, but rather it excludes certain procedure contemplated under sub-section (1) and sub-section (2) of Section 127 of the Act, when both the transferee and transferor officers are situated in the same city, locality or place. The provision commences by stating not .....

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excludes certain procedure contemplated under sub-section (1) and sub-section (2) of Section 127 of the Act, when both the transferee and transferor officers are situated in the same city, locality or place. The provision commences by stating nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given . Therefore, when there is a total exclusion of an opportunity, the question of communicating the reasons to the assessee cannot be insisted upon and t .....

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lied to the facts of this case, nor sub-section (3) of Section 127 of the Act, can be construed as a non-obstante clause, but a clause providing for exclusion of certain procedure in certain contingencies. The fact that the transferee and transferor officers are within the same city is not in dispute. This Court has found that there has been an agreement between the two Heads of Department and the petitioner cannot plead for an opportunity to be granted before an order of transfer, as there is n .....

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d made to appear as an innocuous order of transfer. In this regard, reference was made to the observations contained in an interim order passed on 19.02.2016, especially in paragraph 4 therein, find what has been recorded by the Court is the submission made on behalf of the petitioner and not a finding rendered by the Court. In any event, the observations contained in the order dated 19.12.2016, was an order recording reasons while granting an interim order, which can hardly have any impact when .....

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tions, viz., i) W.P.No.35408 of 2016, ii) W.P.No.2544 of 2017 and iii) W.P.No.11843 of 2017, one of which being W.P.No.35408 of 2016, was heard and is disposed of by this order. 2. i) In W.P.No.35408 of 2016, the petitioner seeks to quash the Notification dated 24.06.2016, issued by the first respondent, as ultra vires under Section 127 of the Income Tax Act, 1961, vitiated by extraneous considerations and in violation of principles of natural justice. ii) In W.P.No.2544 of 2017, the petitioner .....

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hat, it has been passed in gross violation of principles of natural justice, vitiated by legal malafides, lacking in bonafides, abuse of authority, wrongful exercise of discretion under Section 263 of the Income Tax Act, 1961 and to quash the same. 3. Mrs. Nalini Chidambaram, the learned Senior Counsel appearing for the petitioner submitted that, W.P.No.35408 of 2016 may be taken up for consideration at the first instance, as the result in this Writ Petition would have direct impact on the other .....

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incipal Commissioner of Income Tax, Chennai-1, dated 24.06.2016, which is a notification issued, in exercise of his powers under Section 127 (2) of the Income Tax Act, 1961 (Act). By virtue of the impugned notification, cases of the petitioner have been transferred from the DCIT, Corporate Circle-1(1) Chennai to DCIT Central Circle-2(1), Chennai. 5. The facts, which are necessary for the disposal of the Writ Petition are as follows: 5.1 The Enforcement Directorate conducted search operations in .....

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Tax -1, transferring the petitioner's cases to a different Officer, who is within the City of Chennai. 5.2 In the subject column of the impugned notification, it is stated as "Centralization of Search and Seizure cases - in the group cases of Shri.A.M.Arun, M/s. Vasan Health Care (P) Ltd., - Notification - Reg". The reference column in the notification reads as "Letter of the DGIT (Inv.) (i/c), Chennai to the CCIT-1, Chennai in F.No. 2003/2016-17, dated 30.05.2016". 5.3 T .....

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e group cases of Shri.A.M.Arun, M/s. Vasan Health Care (P) Ltd., except to the extent, owning certain shares in the Company and the petitioner cannot be considered as a group Company of M/s. Vasan Health Care (P) Ltd., and the entire proceedings, commencing from the survey proceedings, culminating in the impugned notification, dated 24.06.2016 are ultra-vires of the provisions of the Act. It is further submitted that, there is no material in possession of the first respondent to warrant clubbing .....

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t, Section 127 (2) of the Act is applicable, and while exercising such power under the said provision, three requirements have to be fulfilled, viz., i) Two Principal Commissioners should agree, and such agreement should be in writing, ii) Assessee is entitled to a reasonable opportunity of being heard in the matter, and iii) Reasons should be recorded in writing and communicated to the assessee. 7. Further, it is submitted that, the petitioner's case will also fall under Sub-section 3 of Se .....

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for a post decisional hearing, pointing out, as to how, the impugned notification is not sustainable. The said representation was not considered by the first respondent, and no orders have been passed. Referring to certain facts mentioned in the impugned notification, the learned Senior Counsel points out that, there is anomaly in the impugned notification, which would go to show that the impugned notification has been passed on the dictates of the superior officers of the first respondent, whic .....

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hat the Chief Commissioner of Income Tax -1, by his letter, dated 13.05.2016, had directed the Principal Commissioner of Income Tax -1/first respondent, to pass appropriate orders, notifying the petitioner's case from DCIT, Corporate Circle I (1), Chennai to DCIT Central Circle 2(1), Chennai, to facilitate coordinated investigation. However, this communication was sent by the Principal Commissioner of Income Tax, even before the DCIT (Investigation) addressed the Chief Commissioner of Income .....

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eason of such minuscule shareholding, the case of the petitioner cannot be centralized with the case of M/s. Vasan Health Care (P) Ltd. In this regard, the learned Senior Counsel has referred to the factual averments set out in the representation, dated 08.09.2016, as well as in paragraph No.8 of the reply affidavit to the counter affidavit. Further, it is submitted that, the first respondent proceeds on the basis that, no inconvenience is caused to the petitioner, as the transfer is within the .....

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hat, 'reasons should be recorded in writing and communicated to the assessee to enable him to challenge the same before the Court of law'. b) Mrs. Menaka Gandhi Vs. Union of India and another, reported in (1978) 1 S.C.C. 248 for the proposition that, the first respondent ought to have afforded an opportunity of post decisional hearing by considering the petitioner's representation, dated 08.09.2016. c) The decision of High Court of Andhra Pradesh, in the case of Vijayasanthi Investme .....

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us with that of search and seizure cases in the case of Shri.A.M.Arun, M/s. Vasan Health Care (P) Ltd. e) Noorul Islam Educational Trust Vs. The Commissioner of Income Tax-I and other (2016) 388 ITR 0489 (SC) for the proposition that, 'when transfer is effected, invoking power of Section 127 (2) (a) of the Act, there should be agreement between the two principal Commissioners and absence of disagreement, cannot tantamount to agreement, as visualized under Section 127 (2) (a) of the Act, whic .....

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er of assessment to be passed as a consequence to the transfer of files from one officer to another and therefore, the writ petition is not maintainable. In support of such submission, reliance was placed on the decision in the case of Dr.K.Nedunchezhian vs. The Deputy Commissioner of Income-tax and another reported in (2005) 4 CTC 161. 12. It is further submitted that on a plain reading of Section 127 (3) of the Act, it is clear that, nothing in sub-section (1) or sub-section (2) of Section 127 .....

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Act, cannot be done, as sub-section (3) of Section 127 of the Act, is very explicit and the concept of reading into it would arise only when there is no provision in the statute. In this regard, reliance was placed on the decision in the case of Mrs.Maneka Gandhi vs. Union of India and another reported in (1978) 1 SCC 248, wherein the statute was silent and therefore, the Constitution Bench has read into the concept of post decisional hearing. 14. Further, it is submitted that no prejudice woul .....

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act that notices have been issued by the transferor's officer itself is a clear indication that there is agreement between their respective Commissioners. It is further submitted that this contention was not raised in the affidavit filed in support of the writ petition and is raised before this Court for the first time and in this regard, the factual position would be explained by producing the original file. 16. The learned Additional Solicitor General referred to the decision of the Consti .....

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981) 129 ITC 131 (AP). (ii) M/s.Karandhai Tamil Samgam vs. The Commissioner of Income Tax-II, and other in W.P.(MD).No.8062 of 2011 dated 24.08.2011. (iii) T.S.Sujatha vs. Union of India reported in (1999) 239 ITR 488 (Ker.) (iv) S.L.Singhania vs. Assistant Commissioner of Income-tax/Wealth-tax reported in (1992) 65 Taxman 479 (Delhi) 17. During the course of argument, the learned Additional Solicitor General fairly submitted that though in the impugned notification, it has been stated that the .....

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d 30.05.2016, to the Principal Commissioner of Income Tax, Chennai, is incorrect and it is a typographical error and the date of the letter is 13.06.2016. The learned Senior Counsel for the petitioner accepted the said submission and therefore, the argument advanced by the learned Senior Counsel on the said contention stands eschewed, since the revenue has produced copy of the file and demonstrated it before the Court that the date of the letter is 13.06.2016 and not 30.05.2016. 19. Further, it .....

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and the Deputy Commissioner of Income Tax, Central Circle-1(I), Chennai, having issued notice subsequently, would clearly show that there has been agreement between the two Commissioners under whom, the transferee s and the transferor s assessing officers are functioning. 21. By way of reply, the learned Senior Counsel for the petitioner contended that the Act does not provide for any alternate remedy against a notification under Section 127 of the Act and the contention raised by the Additiona .....

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lied on by the revenue viz., Kashiram Aggarwalla (supra), M.A.E.K.K.Varma, (supra) M/s.Karandhai Tamil Samgam (supra), T.S.Sujatha (supra) and S.L.Singhania (supra) are all orders of transfer on administrative grounds and therefore, those decisions are not applicable. 23. So far as the decisions in the case of Chaudhary Skin Trading Co. vs. Principal Commissioner of Income-tax-21 reported in (2016) 76 Taxmann.com 169 (Delhi), Vishal Kumar vs. Commissioner of Income-tax reported in (2014) 44 Taxm .....

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titioner s case is not an order of transfer on administrative grounds, but the respondents wanted to club the matter along with the case of Shri.A.M.Arun vs. M/s. Vasan Health Care (P) Ltd., which was a case of search and seizure and the reason given is for centralization based upon a letter given by the DIT (Investigation). Further, it is submitted that the respondents cannot rely upon the order passed under Section 263 of the Act, which has been challenged by the petitioner vide separate writ .....

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2009 dated 11.12.2009, it is submitted that merely because search was conducted under Section 132 of the Act in the premises of the other assessees cannot be a reason for transfer when the incriminating materials found do not show the interlace and interconnecting transaction. 26. Learned Senior Counsel would emphasize that Section 127(2) and 127(3) of the Act, should be harmoniously read and sub-section (3) of Section 127 of the Act, only obviates personal hearing, but the other ingredients req .....

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) Calcutta Gas Company (Proprietary) Ltd., vs. State of W.B. Reported in AIR 1962 SC 1044, (iii) Ashoka Marketing Ltd. and others vs. Punjab National Bank and others reported in (1990) 4 SCC 406; (iv) Smt.Parayankandiyal Eravath Kanapravan Kalliani Amma and others vs. K.Devi and others reported in (1996) SC 1963 and (v) Sultana Begum vs. Prem Chand Jain reported in (1997) 1 SCC 373. 27. Further, it is submitted that in the counter affidavit, especially in paragraphs 5 and 6, there is no averment .....

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at the order of transfer is not as an innocuous order, as it is made out by the revenue. 29. On the above submission, the learned Senior Counsel prayed that the writ petition may be allowed and the impugned order be quashed. 30. Heard Mrs. Nalini Chidambaram, the learned Senior Counsel appearing for the petitioner and Mr. G. Rajagopalan, the learned Additional Solicitor General assisted by Mr. A.P. Srinivas, the learned Standing Counsel for the respondents. 31. The petitioner is aggrieved by an .....

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e Tax, Central Circle-2(1), Chennai (hereinafter referred as the Central Circle ). The impugned notification in the subject column states that it is for centralization of search and seizure cases - in the group of cases of Shri A.M.Arun vs. Vasan Health Care (P) Limited. The first respondent has referred to a letter from the Director General of Income Tax (Investigation), (i/c), Chennai, to the Chief Commissioner of Income Tax-1, Chennai, dated 30.05.2016. The challenge to the impugned notificat .....

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roup and there is no material available with the first respondent warranting clubbing of the petitioner s case with the search and seizure case; (iv) Section 127(2) of the Act mandates that the Commissioners to whom such Assessing Officers are subordinate should be in agreement with each other and absence of disagreement between the two Commissioners cannot tantamount to agreement; (v) The reasons assigned in the impugned notification is vague and liable to be set aside; (vi) Though the petition .....

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iously read and though Section 127(3) dispenses the opportunity to the assessee, the agreement between two Commissioners, recording of reasons have not been dispensed with. (vii) Though in the impugned notification it has been stated that the assessee was given an opportunity under Section 127(2) of the Act, no such opportunity was granted and it is factually an incorrect statement. 32. Before the Court proceeds to examine the legal and factual contention raised before it, it is necessary to cle .....

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next aspect is with regard to the averments made in paragraph 4 of the counter affidavit, which refers to a letter of the Chief Commissioner of Income Tax, dated 13.05.2016, it has been clarified that it is a typographical error and the correct date is 13.06.2010, and not 30.05.2016, and the copy of the original letter was produced before this Court. Thus, these two factual discrepancies have been duly explained and placed on record. 34. Section 127(2) of the Act states that where the Assessing .....

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n agreement. Clause (b) of Section 127(2) of the Act refers to cases where the Principal Commissioners or Commissioners are not in agreement. 35. The petitioner s contention is that the entire process of transfer from Corporate Circle to Central Circle emanated from a letter addressed by the DGIT, TN & Puducherry, (i/c), Chennai to the Chief Commissioner of Income Tax-1, Chennai dated 30.05.2016. Pursuant to which, the first respondent has issued the impugned notification and the case has be .....

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issued, since the petitioner did not raise such a contention in the affidavit filed in support of the Writ Petition and for the first time, the same was raised during the course of arguments advanced by the learned Senior Counsel. 37.Before I examine as to whether there has been agreement between the two Principal Commissioners/Commissioners, it is required to be seen as to who are the Heads of Department of the Corporate Circle and the Central Circle. The details furnished by the Department sho .....

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issued the impugned notification falls within the jurisdiction of CCIT-1. Under the control of the first respondent, there are three ranges, namely, Corporate Range-1, Chennai, Non-Corporate Range-1, Chennai and Non-Corporate Range-2, Chennai. Under Corporate Range-1, Chennai, there are two circles namely, Corporate Circle-1(1), Chennai and Corporate Circle-1(2), Chennai. 39. The petitioner s case has been transferred to Corporate Circle. Therefore, as per the organizational set up, the Chief C .....

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s. 40. Apart from that DGIT (Inv.) TN & P, has Central-1, Central-2, Appeal-18 and Appeal-19 under his control. During December 2015, survey was conducted by the Investigation wing of the Deputy Director of Income Tax Unit-1(3), Chennai. It is based on such survey, a proposal was sent to the DGIT (Investigation), Head of his Department, for centralization along with Vasan group. This report was forwarded by the Principal Director of Income Tax (Inv.) to DGIT (Inv.) vide letter dated 09.03.20 .....

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nai. On 13.06.2016, the CCIT-1, Chennai, requested the Principal CIT, Chennai-1, who is a subordinate officer to notify the case of the petitioner for transferring the same from Corporate Circle to Central Circle for co-ordinated investigation. 42. In turn, the Principal Commissioner of Income Tax, Chennai-1, passed the impugned notification transferring the case from Corporate Circle-1(1) to Central Circle-2(1), Chennai. Thus, the two Heads of Department viz., DGIT (Inv.) TN & P, under whom .....

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nts and therefore, this Court had to do the above exercise to find out as to who are the two Heads of Department, who had to concur. The nomenclature of the Department Heads has caused some confusion. This is so because, the Director General of Investigation not only heads the investigation, but he has two Central Circles under his jurisdiction apart from two appellate jurisdictions. Thus, he is the Head of Department of the Central Circle and he has concurred with the Head of Department of the .....

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of Section 127 of the Act, only obviates the opportunity to be given to the assessee before effecting an order or transfer, but does not dispense with the other two requirements viz., agreement between both the Commissioners and recording of reasons have not been dispensed with. So far as the agreement between both the Commissioners is concerned, this Court is satisfied for the reason recorded above that there has been agreement. Thus, it has to be seen as to whether when transfer has been effe .....

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eemed to require any such opportunity to be given . Therefore, when there is a total exclusion of an opportunity, the question of communicating the reasons to the assessee cannot be insisted upon and that is not required under the statute. Therefore, the assessee cannot seek to read something into the statute, which is not found therein. 47. In the case of K.P.Mohammed Salim, the Court pointed out that the power of transfer infact provides for a machinery provision and it must be given its full .....

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le Supreme Court arose out of two Writ Petitions filed by the appellant in the Punjab High Court, challenging the validity of two orders passed by the Central Board of Revenue, which had directed the income-tax proceedings, then pending against the appellant should be transferred from the ITO of one ward to ITO of another. The two orders of transfer were challenged on the ground that the Board had failed to comply with the mandatory requirements prescribed under Section 127(1) of the Act. The Wr .....

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ncome Tax Officer shall have jurisdiction. Explaining further, it was held that the said provision indicates that where the transfer is made under proviso to Section 127(1) from one ITO to another is purely an administrative order passed for considerations of convenience of the Department and no possible prejudice can be involved in such a transfer. It was further pointed out that when assessment cases pending before an officer in one ward, are transferred to an officer in another ward in same p .....

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at the CIT may transfer any case from one ITO subordinate to him to another and the Central Board of Revenue may transfer any case from any one ITO to another. The argument, which was urged before the Court in challenging the validity of the provision was that it infringes the citizen's fundamental rights conferred under Articles 14 and 19(1)(g) of the Constitution. In support of such argument, reliance was placed on the fact that Section 64(1) and Section 64(2) of the Act conferred a right .....

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t the right conferred on the assessee by Section 64(1) and Section 64(2) of the Act was not an absolute right and must be subject of the primary object of the Act itself, viz., the assessment and collection of the income tax; and it was also held that where the exigencies of tax collection so required, the CIT or the Central Board of Revenue had the power to transfer his case under Section 5(7A) of the Act to some other officer outside the area, where the assessee resides or carried on business. .....

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ew is plainly consistent with the scheme of the provision and the true intent of its requirement. If the above mentioned decision is to be applied to the case on hand, the only plausible conclusion that can be arrived at is to hold that if the transfer is within the same city, no reasons are required to be recorded in writing and no opportunity need be given to the assessee. 50. The learned Senior Counsel for the petitioner sought to distinguish the judgment by contending that it is a case of tr .....

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not administrative convenience does not merit consideration. The note file shows reasons have been recorded for transfer, upon perusal of the enclosures regarding the survey which was conducted on the petitioner and investigation to be carried out along with other cases of the Vasan group. Apart from the petitioner's case, two other cases were requested for transfer, who are assessees on the file of ACIT Circle-1(1), Trichy and ITO Ward-1(4), Salem. The request for centralisation has emanate .....

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easy proceedings. 51. The above referred decisions were referred to by this Court in the case of M/s.Karandhai Tamil Sangam vs. the Commissioner of Income Tax-II, & Ors., in W.P(MD).No.8062 of 2011, dated 24.08.2011, which was filed challenging an order of transfer raising similar contentions which were rejected. 52. As noticed above, providing reasonable opportunity to the assessee, while invoking Section 127(3) of the Act, does not arise and therefore, the decision in the case of Ajantha .....

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son, the petitioner cannot draw any inspiration from the decision in the case of Mrs.Menaka Gandhi vs. Union of India and another reported in [1978] 1 SCC 248. 54. Having steered clear of the above legal position, the assessee is not justified in stating that the transfer for the purposes of centralization is hardly a reason for transfer. The administrative exigencies and the manner in which, the investigation has to proceed are all matters into which this Court exercising power under Article 22 .....

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of the petitioner. Relying upon the decision of the Hon ble Supreme Court in the case of Noorle Isam Educational Trust vs. Commissioner of Income Tax and ors reported in [2016] 388 ITR 0489, it was submitted that absence of disagreement cannot tantamount to agreement as visualized under Section 127(2)(a) of the Act. 56. In the preceding paragraph, this Court has narrated chronology of events and it would be worthwhile to reiterate the same at this stage. Based on the strength of survey findings .....

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ector of Income Tax (Inv.) Chennai, vide letter dated 09.03.2016, while forwarding it to the DGIT (Inv.) Chennai. The DGIT (Investigation) in turn by letter, dated 30.05.2016, addressed the Chief Commissioner of Income Tax-1, Chennai requesting for centralization of the case of the petitioner from Corporate Circle-1(1) to Central Circle-2(1), to facilitate co-ordinated investigation. 58. The report of the DDIT (Investigation) Unit-3(2), dated 25.02.2016, was forwarded to the CCIT-I, Chennai. The .....

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on receipt of a letter from the DGIT (Investigation) dated 30.05.2016, through his Chief Commissioner of Income Tax, passed the impugned notification, transferring the case from Corporate Circle to Central Circle. Thus, the agreement between the two heads of Department is explicit and vivid and nothing more is required. 59. A plea of discrimination was raised by the petitioner contending that cases pertaining to persons holding more than 5% shares with Vasan Health Care Private Limited, has not .....

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rs. On the strength of newspaper reports, this Court cannot test the correctness of the notification issued in exercise of statutory power, which has been held to be a valid exercise. 61. Several decisions were cited by the learned Senior Counsel for the petitioner to drive home the concept of harmonious construction. 62. As pointed out earlier, sub-section (3) of Section 127 of the Act does not commence with a non-obstante clause, but it is a clause providing for exclusion of certain procedures .....

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