TMI Blog1974 (7) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... " Ward, Company Circle, Hyderabad (2nd respondent). On September 30, 1972, the 2nd petitioner filed a petition before the 1st respondent alleging that the 2nd respondent was calling for information from him on phone and insisting that the same should be given to him then and there, that about two months prior to the filing of the said petition, the 2nd respondent wanted the Bin Cards of the spare parts of the company on phone and required the information to be furnished on the same day, though the 2nd petitioner stated that it was not possible to do so, that the 2nd respondent lost his temper and threatened that he would post the case every day and make the petitioner sit till the end of the day and that he would continue the procedure till the close of the financial year and that he would complete the case on the material available on record. The 2nd petitioner stated that the 2nd respondent was using very harsh language, that he issued attachment notice to the company regarding his (2nd petitioner's) personal income-tax arrears, that even after the arrears were cleared off on August 11, 1972, he did not vacate the attachment, that he was bent upon teasing and harassing the 2nd pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the petitioners that the petitioners were not given an opportunity to make their representations before the impugned order was passed. Section 127 of the Act was substituted by the Finance (No. 2) Act, 1967, with effect from 1st April, 1967, for the previous section 127. The section, as amended in 1967, reads as follows : " 127. (1) The Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from any Income-tax Officer or Income-tax Officers subordinate to him to any other Income-tax Officer or Income-tax Officers also subordinate to him and the Board may similarly transfer any case from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers : Provided that nothing in this sub-section shall be deemed to require any such opportunity to be given where the transfer is from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers and the offices of all such Income-tax Officers are situated in the same city, locality or place : Provided further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother. Section 5(7A) of the Act reads as follows : " 5. (7A) The Commissioner of Income-tax may transfer any case from one Income-tax Officer subordinate to him to another, and the Central Board of Revenue may transfer any case from any one Income-tax Officer to another. Such transfer may be made at any stage of the proceedings, and shall not render necessary the reissue of any notice already issued by the Income-tax Officer from whom the case is transferred. " In Devi Dayal Marwah v. Commissioner of Income-tax [1964] 52 ITR 829 (AP) an application for transfer was made by the assessee under section 5(7A) of the Income-tax Act, 1922, to the Central Board of Revenue and transfer was effected. This shows that the assessee also could move either the Commissioner or the Board for transfer of his case. No doubt, the question was not directly raised or decided in the aforesaid decision. But in the course of the judgment, it was stated that the petitioner therein had made an application to the Central Board of Revenue for transfer of the case under section 5(7A) of the Income-tax Act, 1922, and after correspondence between the representative of the petitioner with the Board, the Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subordinate authorities. It is up to the Board to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under section 34, then in the absence of any vitiating circumstance recognised by law, the High Court would not have interfered with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessee's appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the record. Hence, the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. " In the instant case also, section 127 of the Income-tax Act, 1961, as amended in 1967, confers power on the Commissioner and the Board to effect transfer of cases from the file of an Income-tax Officer to another in appropriate cases. In my opinion, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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