TMI Blog1998 (11) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... ter referred to as "the Act"), transferring the file of the petitioner from the jurisdiction of the Assistant Commissioner of Income-tax, Investigation Circle 1(2), Patna, to the Deputy Commissioner of Income-tax, Special Range, Ranchi. It is contended that right from its inception, the petitioner is carrying on its entire business of the firm at Patna only. In Ranchi there was a stockyard of the firm but that was only for the purpose of storage and delivery of goods, sales, etc., were effected at Patna and for the buyers of Ranchi area deliveries were made from Ranchi stockyard of the firm. On December 4, 1996, the petitioner received a notice from the Income-tax Officer, according to which, in the interest of the Revenue, the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of section 127 of the Act. Denying the averments made by the petitioner, the Revenue has filed its counter affidavit and it is contended that the petition as framed and filed suffers from laches. Besides this, on the basis of misrepresentation and suppression of fact, the writ petition is filed. It is contended that on December- 6, 1996, the transfer order is made and after a lapse of more than a year the petitioner has filed the writ petition, a copy of which was served on the respondent on December 9, 1997. It is thus contended that after a lapse of about one year, the petitioner, exercising his right under, writ jurisdiction, challenged the order of transfer and, therefore, the petition suffers from laches. It is also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working partners drawing salary of Rs. 1,500 (Rupees one thousand and five hundred) each for looking after the business of the firm. Therefore, it is submitted that even if, according to the petitioner, the business of the firm is closed in 1995 (as per reference at page 6, para. 16, of the writ petition), the petitioner being the managing working partner is under legal obligation to comply with the notice of the Department and the liability to pay tax is joint and several of all the partners including the petitioner. It is also contended that the petitioner has all along been not co-operating in pursuance of the notice served upon him on flimsy grounds. It is also contended that after the transfer of the case, the Deputy Commissioner, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pably false. It is also contended that the transfer of case from Patna to Ranchi was known to the petitioner on May 5, 1997, whereas he has filed the writ petition in December, 1997. It is further submitted that the assessment of the firm has already been completed on March 24, 1997. It is also stated that it is not that the Department has not served the notice in time but it was the petitioner who refused to accept the notice on January 13, 1997. Therefore, it was returned back and so the presumption in law about valid service of notice is in favour of the Department. Learned counsel, Shri Bajla, appearing for the petitioner, submitted that since the provisions of section 127 of the Act has not been complied with in letter and spirit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition deserved to be dismissed outright as it has been filed at a belated stage and by suppressing material facts is also on the ground of misrepresentation of facts. It is also argued that it is the petitioner who Suggested for the transfer of his case to Ranchi. On hearing learned counsel for the parties and on perusing the records and considering the legal aspect of section 127 of the Act, no doubt this provision is to be adhered to in letters and spirit and all procedural opportunities envisaged under this provision are to be afforded to the assessee. Therefore, the submission made by Shri Bajla and the authority cited by him have no two opinion. But, in the facts and circumstances of the instant case, where the assessee-petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instance of the petitioner-assessee himself and it was be who suggested that the entire records and books of account are at Ranchi and so it will be convenient for him to co-operate with the assessment at Ranchi. Besides laches in approaching the writ court, the assessee-petitioner also submitted to the jurisdiction of the transferee authority at Ranchi. This being so, the party having once acquiesced in the jurisdiction of the transferee court, all statutory rights which the assessee gets by virtue of section 127 of the Act vanish and, therefore, the assessee cannot assert that without affording opportunity as required under section 127 of the Act, the case has been transferred. In this regard see Halsbury's Laws of England, volume I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
