TMI Blog2022 (3) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... has to consider as to whether the variance in the reason assigned in the show-cause notice and the impugned order of transfer can be of any assistance to the petitioner or not. The clause of reasonable opportunity engrafted in any statutory provision is intended to afford opportunity of being heard to a person against whom an adverse decision is likely to be taken. Meaning thereby that the reasons for proposed transfer of a case are to be informed to the affected person or the affected person should be in the knowledge of the actual reason of the intended transfer. In the instant case, the variance of reasons assigned by the Revenue in the show cause notice and the impugned order of transfer ostensibly reveals breach of the reasonable opportunity clause. However, if things are scrutinized minutely, especially contents of para-2 of the reply of petitioner to the show cause notice, it is vivid that petitioner knew about the search being conducted against the principal contractors i.e. M/s HES Infra Pvt. Ltd. and M/s Mantena Constructions Pvt. Ltd. with whom petitioner's firm had close business sub-contracts. Thus, the petitioner was well aware of the fact that the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 ('IT ACT' for brevity). 2. Learned senior counsel Shri G.N. Purohit along with Smt Uma Parashar and Shri Abhijeet Shrivastava for the petitioner and Shri Sanjay Lal, learned counsel for respondents are heard on the question of admission and so also final disposal. 3. Learned senior counsel for petitioner Shri G.N. Purohit raises following grounds in support of challenge to the aforesaid order (Annexure P/7): (i) The impugned order (Annexure P/7) was not promptly supplied to petitioner. (ii) The impugned order (Annexure P/7) was passed without affording reasonable opportunity of being heard in as much as the show cause notice not containing reasons on the basis of which the impugned order was passed. (iii) The reasons shown in the impugned order are irrelevant and not cogent enough to sustain an order of transfer u/S. 127 of the IT Act. (iv) The impugned order has been passed in violation of the mandatory provisions of Section 127 of the IT Act to the extent that there was no agreement between the transferring and the transferee authority. 4. Learned counsel for the Revenue Shri Sanjay Lal, on the other hand, has filed preliminary submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner or Chief Commissioners or Principal Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf. (3) Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer is from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) and the officers are situated in the same city, locality or place. (4) The transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the reissue of any notice already issued by the Assessing Officers or Assessing Officers from whom the case is transferred. Explanation .--In section 120 and this section, the word case , in relation to any person whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the tax consultant of petitioner/assessee being stationed at Bhopal. 7.1 Pertinently, a close scrutiny of the said reply especially para 2 reveals thus : 2. The business of the assessee is mainly concentrated in an around Madhya Pradesh only. Mainly on the ground of search being conducted by the ADIT Hyderabad, the case of the assesse could not be transferred to ACIT (Central) -1(2). (emphasis supplied) The contents of para-2 as reproduced above reveal that petitioner/assessee had come to know that search of the documents/premises of petitioner/assessee was being conducted by ADIT, Hyderabad and the factum of search being the reason behind the proposed transfer. 7.2 Thereafter the impugned order dated 26.10.2021 (Annexure P/7) was passed transferring the case of petitioner from Bhopal to Hyderabad owing to the seriousness of allegations against M/s HES Infra Pvt. Ltd. and M/s Mantena Constructions Pvt. Ltd. with whom petitioner had worked/working as a contractor. The order further assigned reason that the close nexus between M/s Arni Infra, Bhopal (sole proprietorship firm of petitioner/assessee) and the principal contractors M/s HES Infra Pvt. Ltd. and M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest to ensure smooth and uninterrupted search operation being conducted by the Revenue which is only possible when records of the principal contractors and the sub-contractor (petitioner) are at the same place. 9.4 Consequently, as a necessary fallout of the aforesaid discussion, the ground of ostensible variance between the reason assigned for transfer in the show-cause notice and the impugned order of transfer does not actually exist in substance and essentiality. The simple reason being that petitioner knew that the case is being transferred for consolidating the records of the principal contractors and the sub-contractor (petitioner) at one place (Hyderabad). The principle of audi alteram partem thus stands complied with by implication. 10. The principles of natural justice cannot be applied mechanically. It is trite law that the principle of natural justice (audi alteram partem) is to be applied in each case depending upon the facts and circumstances and the compelling situations. Public interest is one of those compelling factors which can absolve following of audi alteram partem principle as is the case herein where consolidation of records of principal contractors a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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