TMI Blog1996 (10) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer in Calcutta to the Assessing Officer at Patna. Since the point which has been raised by the writ petitioner in the instant application really involved a pure question of law and both the parties have addressed the court in full on the questions of law even at the admission stage, I have decided to dispose of the writ application on such questions of law without any affidavit and the parties to the proceedings do not object to such proposal. The main challenge of the writ petitioner to the aforesaid order passed under section 127 of the Income-tax Act, 1961, is that such transfer has been made denying reasonable opportunity of hearing to the petitioner. It is not disputed by the parties that each of the petitioners in each of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not inclined to go into such questions in view of the order which I propose to pass hereinafter. In my view, the points raised as to the denial of opportunity of hearing has great substance. It may be noted in this connection that before the amendment of section 127 previously there was no provision in the corresponding section of the previous Act for giving a hearing to an assessee before passing such order of transfer. The Supreme Court in the case of Pannalal Binjraj v. Union of India [1957] 31 ITR 565, while interpreting section 5(7A) of the old Act held, inter alia, that it would be prudent if the principles of natural justice are followed, where circumstances permit, before any order of transfer under the said section is made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner unless in the very order proposing such transfer the reason is indicated, learned counsel appearing for the respondents have contended that no interference is called for by this court in view of the fact that the aforesaid provisions of law require the authority to record the reasons for such transfer and to indicate the same which has been duly done and in any event the petitioner is not also entitled to raise such question of recording of reasons in the order proposing such transfer, namely, the show-cause notice, inasmuch as the petitioner did submit a reply to the show-cause notice and appeared before the appropriate authority and made his submission. After considering the respective submissions of the parties I am, however, of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of different judicial decisions that personal inconvenience of an assessee cannot override a public interest necessitating such transfer. Under such circumstances if the reason is not indicated in the show-cause notice it is not understood how the assessee can represent against such proposal and against what he can represent except expressing his personal inconvenience to be suffered for such transfer or such other matters which are held to be irrelevant considerations for the purpose of such transfer. I am quite conscious of the position that there is no strait-jacket formula in deciding what would be reasonable opportunity of hearing and the same may differ under the facts and circumstances of different cases. But in a case of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he would be handicapped in putting forth his objections effectively. In this connection, it is also worth referring to the decision of the Supreme Court of India in the case of Ajanta Industries v. CBDT [1976] 102 ITR 281, where the provisions for the recording of reasons were held to be mandatory and the order under section 127 of the Act was held not to be an administrative order. Admittedly, in the instant case, in the show-cause notice the grounds or reason for proposed transfer was not indicated. It is true as contended by learned counsel appearing for the respondent that even then the petitioner replied to the show cause and he was also given hearing. That, in my view, will not, however, absolve the liability of the respondent in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Income-tax Commissioner of Bihar has corresponded with the appropriate authority in Calcutta being of the view that the records of the present petitioner required to be transferred having relation to such animal tender cases. Mr. Kapur has also attacked such reasons on various grounds and learned counsel appearing for the respondent have also sought to justify the same. But I am not inclined to go into such points or the merits of the reasons since I am of the view that the entire proceeding itself is vitiated because of denial of reasonable opportunity of hearing to the petitioner. I am further of the view that although because of denial of such opportunity to the petitioner the proceeding has been vitiated, the respondents will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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