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TMI Blog1964 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 (43 of 1961 (hereinafter called " the Act "). These two orders have been passed on the 18th January, 1963, and they have directed that the income-tax proceedings then pending against the appellant should be transferred from the Income-tax Officers " D " Ward District IV(1), and " F " Ward District IV(2), Calcutta, respectively to the Income-tax Officer, " E " Ward Companies District III, Calcutta. The petitioner alleged that these two orders were invalid, because before exercising its power under section 127(1), the Board had failed to comply with a mandatory requirement prescribed by the said provision. These petitions were dismissed summarily by the High Court, and it is against these orders of summary rejection that the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equires that where the power conferred by it is intended to be exercised, an opportunity should be given to the assessee wherever it is possible to do so, and reasons have to be recorded for making the order of transfer. The requirement that opportunity should be given, cannot be said to be obligatory, because it has been left to the discretion of the authority to consider whether it is possible to give such an opportunity to the assessee. It is, of course, true that in coming to the conclusion that it is not possible to give the required opportunity to the assessee, the authority must act reasonably and bona fide ; but if the authority comes to the conclusion that it is not possible to give a reasonable opportunity to the assessee, that ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed by the proviso. In such a case, normally, the assessee has to be given a reasonable opportunity to be heard ; and the natural corollary of this requirement is that his objections to the transfer should be considered and reasons given why the transfer is made despite the objection of the assessee. In other words, the requirement as to the recording of reasons flows as a natural consequence and corollary of the requirement that a reasonable opportunity should be given to the assessee. If, however, a reasonable opportunity is not given to the assessee on the ground that it is not possible to do so, section 127(1) requires that the transfer being of a category where a reasonable opportunity should be given to the assessee, the autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f convenience of the department and no possible prejudice can be involved in such a transfer. Where, as in the present proceedings, assessment cases pending against the appellant before an officer in one ward are transferred to an officer in another ward in the same place, there is hardly any occasion for mentioning any reasons as such, because such transfers are invariably made on grounds of administrative convenience, and that shows that on principle in such cases neither can the notice be said to be necessary, nor would it be necessary to record any reasons for the transfer. The provisions contained in section 14(3) of the Act deal with the same topic which was the subject-matter of section 64(1) and (2) of the earlier Income-tax Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gement of his fundamental rights guaranteed by articles 14 and 19(1)(g) read with section 64(1) and (2). It is necessary to emphasise that section 5(7A) authorised transfer of income-tax cases from one officer to another not necessarily within the same place. In other words, the transfer authorised by section 5(7A) would take the case from the jurisdiction of an officer entitled to try it under section 64(1) and (2) to another officer who may not have jurisdiction to try the case under the said provision. That, indeed, was the basis on which the validity of section 5(7A) was challenged. This court, however, repelled the plea raised against the validity of the said section on the ground that the right conferred on the assessee by section 64( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax Officer in another place ; and they obviously had no reference to transfers like the present where instead of one officer dealing with the case, another officer in the same place is asked to deal with it. It is in the light of these considerations that we have to construe the proviso to section 127(1). As we have already indicated, the construction for which Mr. Jain contends is a reasonably possible construction. In fact if the words used in the proviso are literally read, Mr. Jain would be justified in contending that the requirement that reasons must be recorded applies even to cases falling under it. On the other hand, if the obvious object of the proviso is taken into account and the relevant previous back ground is borne in mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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