TaxTMI 
TaxTMI 
2011 (8) TMI 324
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....Sridhar, learned Counsel appearing for the petitioner and Mr.R.Sathiyamoorthy, learned Counsel appearing for the respondents. 3. By consent, the writ petition itself is taken up for final disposal. 4. The writ petition has been filed challenging the notification No.4/2010-11, dated 11.08.2010, whereby the Commissioner of Income Tax-II in exercise of his powers conferred under Section 127 of the Income Tax Act, 1961, transferred the case of the assessee from one Assessing Officer to another Assessing Officer as per the Schedule to the said notification and the same is as follows: Schedule: Sl.No GIR NO./ P.A.N. Name and address of the assessee A.Y From To (1) (2) (3) (4) (5) (6) Karanthai Tamil Sangam, karanthai 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 DCIT, Circle-I, Thanjavur JCIT, Thanjavur Range, Thanjavur 5. The main grievances of the petitioner challenging the Notification are as follows: (i) In terms of Section 127 of the Income Tax Act, no show cause notice has been issued to the petitioner while passing the order of ....
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....urts reported in 234 ITR 860, 244 ITR 32, 328 ITR 208, 237 CTR 304, 232 CTR 104, 221 CTR 187 and 187 ITR 405 were not taken into consideration and non consideration of the judicial precedents would vitiate the impugned order. Hence, the order of the 1st Respondent dated 11.8.2010 is wrong, incorrect, unjustified, erroneous and not sustainable both on facts and in law." 7. Per contra, the Department filed counter-affidavit stating that the order under challenge is passed in terms of Section 127 of the Income Tax Act, 1961 and it is a transfer of the assessment file from one assessing officer whether with or without concurrent jurisdiction, to another assessing officer situated within the city, locality or place. Therefore, there is no requirement of hearing the assessee or passing any reasoned order as Section 127(3) which deals with such a situation does not require issuance of notice nor does it require a order with reasons. 8. According to the learned Counsel for the respondents, there is a distinction between orders passed under Sections 127(1), 127 (2) and 127(3) of the Act. The assessee is confusing the issue of transfer of case under Section 127(3) of the ....
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....t is possible to do so, and after recording his reasons for doing so, pass the order; (b) where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief 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 offices of all such officers are situated in the same city, locality or place." 10. The petitioner's counsel does not dispute that the case fall under Section 127(3) as the file is transferred to the Assessing Officer of same city, locality or place. The controversy raised by the petitioner in the present case revolves on interpretation of Section 127(3) of the Act. He pleads that since the authority is differen....
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.... Therefore, the case of the petitioner that the opportunity should be given and a reasoned order should be passed has no legal basis. In this case, the transfer would fall within the meaning of transfer within the same city, locality or place and therefore, the requirement of opportunity or recording of reasons do not arise. 12. The learned Counsel for the petitioner relies upon the following decisions to state that opportunity should be given and reasons to be recorded:- (i) Ajantha Industries and Others Vs. Central Board of direct taxes and Others reported in (1976) 102 ITR 281 (SC), a case which falls under Section 127(1) of the Act and transfer in that case was from ITO, Nellore to ITO, B Ward, Special Circle II, Hyderabad. Therefore, it will not apply to the facts of the present case of transfer in terms of Section 127(3) of the Act. (ii) General Exporters Vs. Commissioner of Income Tax and Another decided by the Madras High Court reported in (1998)149 CTR (Mad) 138 is also a case of transfer from Chennai to New Delhi. Therefore Section 127(2) of the Act will be attracted and not Section 127(3) of the Act. (iii) G.Mohandas and Another ....
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.... only shows the deliberate intention to misinterpret the law for protracting the assessment proceeding under some pretext. 15. One other contention raised by the learned Counsel for the petitioner is that the transferring officer is not vested with the power specifically and therefore, the proceedings are bad. 16. This contention appears to be totally misconceived as the definition of the Assessing Officer under Section 2 7(A) includes the Joint Commissioner of Income Tax. Therefore, the said contention is rejected as it is without any legal basis. 17. The learned Counsel for the petitioner further pleaded that the Joint Commissioner of Income Tax, Trichy, is holding additional charge of Thanjavur District and is not a Joint Commissioner of Thanjavur regular and, therefore, it cannot be treated as a transfer within the same city. 18. This argument appears to be a fallacy as the transfer of the file is a transfer from one Assessing Office to another Assessing Office of the same city, locality or place. The post is be held by a person who is directed to take charge of the said post. The petitioner's plea that the in-charge officer has no power,....