2016 (11) TMI 717 - HC - Income Tax

Court sets aside transfer order due to procedural flaws, emphasizing importance of addressing objections

M/s. Zodiac Developers Pvt. Ltd. Versus Principal Commissioner of Income Tax-8, Mumbai

The Court set aside the order transferring the petitioner's case, citing breaches of natural justice and a lack of consideration for the petitioner's ... Transfer of case from Mumbai to Auranbagad - Held that:- The reliance placed by the Revenue upon the order of the Punjab and Haryana in Kuantum Papers Ltd. (2015 (2) TMI 674 - PUNJAB & HARYANA HIGH COURT) in which the Court refused to stop the transfer as it had come to a finding that the order sanctioning the transfer of the case under Section 127(2) of the Act was an speaking order and not mala fide and / or arbitrary is not applicable in this case. This is so as in the present facts the impugned order is not only a nonspeaking order but is also arbitrary. Similarly, the decision of Rajasthan High Court in Rishikul Vidyapeeth (1981 (8) TMI 47 - RAJASTHAN High Court ) relied upon by the respondent Revenue for sustaining the impugned order under Section 127(2) of the Act is inappropriate. This for the reason that it was passed in the above case in the context of the petitioner therein not adverting in its objections to the reasons for the transfer disclosed in the showcause notice issued to it. This is not so in the present case. In fact, in this case the showcause notice is itself bereft of particulars save and except merely coordinated investigation and administrative convenience making it impossible to effectively respond. Nevertheless, the petitioner had itself pointed out the inconvenience which would be caused to it and the arbitrary nature of the transfer of petitioner's assessment to Aurangabad. This objection was not appropriately considered and dealt with in this case. Therefore, the aforesaid decision also has no application to the present facts. Transfer orders dismissed. Issues Involved:1. Challenge to the order dated 21st December, 2015 passed by the Principal Commissioner of Income Tax under Section 127(2) of the Income Tax Act, 1961.2. Alleged breach of principles of natural justice.3. Allegation of the impugned order being a nonspeaking order.4. Validity of the grounds for transferring the petitioner’s case for coordinated investigation and administrative convenience.Issue-Wise Detailed Analysis:1. Challenge to the order dated 21st December, 2015:The petitioner challenged the transfer order under Article 226 of the Constitution of India. The impugned order transferred the petitioner’s case from Mumbai to Aurangabad under Section 127(2) of the Income Tax Act, 1961. The petitioner argued that the transfer was unwarranted as their principal place of business and directors were based in Mumbai, and they had no business connection with the Jhaveri Group, except for selling three flats to them.2. Alleged breach of principles of natural justice:The petitioner contended that the showcause notice did not provide sufficient details for the proposed transfer, making it impossible for them to respond effectively. The Court found that neither the showcause notice nor the impugned order made any reference to the communication from D.I.T. (Investigation), Nagpur, which was initially the basis for the transfer. This omission was deemed a breach of natural justice as it deprived the petitioner of the opportunity to contest the transfer effectively.3. Allegation of the impugned order being a nonspeaking order:The petitioner argued that the impugned order did not address their objections, making it a nonspeaking order. The Court observed that the impugned order did not consider the petitioner’s submissions, particularly the fact that only three out of 78 flats were sold to the Jhaveri Group. The Court emphasized that an order must address the objections raised to ensure it is not arbitrary or capricious. The failure to do so rendered the order nonspeaking and arbitrary.4. Validity of the grounds for transferring the petitioner’s case:The Revenue argued that the transfer was necessary for coordinated investigation and administrative convenience, citing the admission of cash payments by a buyer from the Jhaveri Group. However, the Court found that the showcause notice was vague and did not provide specific reasons for the transfer. The Court also noted that the Revenue’s reliance on the letter from D.I.T. (Investigation), Nagpur was later found to be incorrect, yet the proposal to transfer was not withdrawn. This inconsistency further undermined the validity of the grounds for transfer.Conclusion:The Court set aside the impugned order dated 21st December, 2015, finding it in breach of principles of natural justice and a nonspeaking order. The Court emphasized that the petitioner’s objections were not appropriately considered, and the showcause notice lacked sufficient particulars, making it impossible for the petitioner to respond effectively. The Court made the rule absolute, with no order as to costs.