TaxTMI 
TaxTMI 
TaxTMI 
2016 (7) TMI 1386
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.... of the Act to be exercised for the purpose of effective and coordinated investigation and assessment. In respect of this, an opportunity of hearing was provided in terms of section 127(2) of the Act which hearing was fixed on 26.10.2015 at 11.00 a.m. It is the case of the petitioner that this notice of informing the petitioner itself came to be despatched through speed post which was received by the petitioner on 27.10.2015. Upon receipt of the notice, petitioner immediately contacted his counsel to prepare an appropriate reply with a view to make a representation. Said reply dated 29.10.2015 was filed before respondent no.1 on 30.10.2015. Attention of the respondent no.1 was specifically drawn to the fact that the notice dated 14.10.2015 came to be received after the date of hearing fixed by the authority. In reply, the petitioner has objected to the proposal of centralisation and transfer of the petitioner's case from Ahmedabad to Surat. It was pointed out by the petitioner that petitioner's business activities are confined only to Ahmedabad and he has studied upto 3rd standard only. It was specifically averred in the reply that there is no connection directly or indirec....
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....day after the hearing which was fixed on 26.10.2015 and and therefore, in true sense, the petitioner was not afforded an opportunity of hearing. Immediately thereafter, a reply came to be submitted on 30.10.2015 but during that process, the petitioner was informed that the order is already passed and therefore, counsel for the petitioner submitted that the respondent authority has not afforded a reasonable opportunity of hearing rather the petitioner is deprived of making an effective representation. Learned counsel further submitted that the impugned order as stated above is suffering from serious procedural lapse based on procedural irregularity and while passing the impugned order, a lame reason is assigned that the case is transferred for the purpose of effective and coordinated investigation and assessment but in reality this reason is not backed by cogent material. It was also contended by the learned counsel that search which was carried out at the petitioner's premises was under mistaken identity. It was only on account of fact that flat no.A/301, Shyam Residence, Science city road, Ahmedabad came to be purchased by the petitioner from Sanjay Dhanak. It is only on accou....
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....ase of Shikshana Prasaraka Mandali vs. Commissioner of Income Tax reported in (2013) 352 ITR 53, while dealing with the power of transfer of case, concept of opportunity of hearing was examined by the Court and it was held that the same having not been given, the order of transfer came to be quashed. It is in the background of these facts that the learned counsel for the petitioner requested the Court to grant relief by setting aside the order dated 14.10.2015 impugned in the petition. 3. As against this, learned counsel Mr. Varun K Patel, appearing on behalf of the respondent authority has opposed the petition mainly contending that since there was a search carried out in which a link of the petitioner came to be found with M/s HVK International group, Surat and therefore, in the interest of effective and coordinated investigation and assessment, the authority found it justified to pass an order. It was also pointed out that the respondent no.1 has exercised jurisdiction in due discharge of his duties and in the interest of revenue. Ultimately, with an aim to sub-serve the object of investigation and assessment and to see that effective investigation and assessment can take place....
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....ct ipso facto may not be utilised to nullify the action of the respondent authority as there seems to be no prejudice to the petitioner and therefore, in absence of any prejudice, counsel for the respondent authority submitted not to set aside the impugned order only on the ground that an opportunity of hearing is not afforded. He also submitted that it is of no consequence in the background of aforesaid facts and therefore, he requested not to disturb the order impugned in the petition. He also relied on the decision of the Supreme Court in the case of 2015(8) SCC 519 in which it was held that simply because opportunity of hearing is not afforded, in absence of any prejudice, ultimate action may not be nullified as concept of hearing is not to complete an empty formality and therefore, since there is no serious prejudice to the petitioner and even after granting hearing to the petitioner, ultimate outcome is not possible to be altered. This empty formality of granting an opportunity, in view of this judgment may not be given such importance in the present case. 4. Mr. Sudhir Mehta, learned advocate appearing on behalf of respondent no.2 has strenuously contended and submitted tha....
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....rincipal 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 offices of all such 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 re-issue of any notice already issued by the Assessing Officer 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 name is specified in an....
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...., where Article 109 of othe Act clearly speaks about alienation made by the father governed by Mitakshara law and further Courts below proceeded in discussing about the long rope given under Article 109 of the Act and comparatively lesser time specified under Article 60 of the Act. It is well settled principle of interpretation that inconvenience and hardship to a person will not be the decisive factors while interpreting the provision. When bare reading of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which means the law is hard but it is law and there cannot be any departure from the words of the law." 8. In view of the aforesaid statutory provisions, even Bombay High Court in a decision in the case of Shikshana Prasaraka Mandali (supra) has in no uncertain terms propounded that opportunity of personal hearing is very much required and in that case, the Court has gone to the extent that even if the assessee has not specifically asked for a personal hearing, the authority would not absolve itself from granting such opportunity. It was also decided that such notice must ref....
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....er of transfer no notice to show cause was issued. No opportunity of hearing was granted. Section 127(1) of the Act postulates that a "reasonable opportunity" of hearing is to be granted to the assessee "wherever it is possible to do so" and reasons for such transfer should be recorded. Significantly, there is no such requirement in section 127(3) in case of intra city transfer. In the instant case, since no opportunity of hearing was granted to the petitioners, order of transfer transferring the files from Kolkata to Mumbai, an inter- city transfer, does not satisfy the parameters under the said Section. The facts in the instant case are similar to the facts in Kumar Kumar & Brothers (supra) wherein prior to transfer of the case from Kolkata to Mumbai no hearing was granted. Moreover, there is nothing on record to show why there was denial of such opportunity. So far as recording of reason is concerned, I find the order of transfer has been passed for "administrative convenience". In my view, merely stating that transfer is for "administrative convenience" does not fulfil the criteria of recording of reason. Since law and not a notification should prevail, submission of the respon....
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.... International Group, Surat. In the detailed reply submitted before the authority, it was brought to the notice that the petitioner is not at all directly or indirectly connected nor having any financial transactions with the said group. It was also specifically asserted that search operation was under mistaken belief. From the record of the case, even a certificate is issued by the said M/s. HVK International Group dated 3.12.2015 in which it was specifically submitted that there is no business or financial transaction or any connection with the present petition. Relevant para-2 of the said certificate dated 3.12.2015 is reproduced hereinbelow: "We are hereby declaring that our group or its Directors, or Share holders or any family members of the same did not have any business or financial transaction or connection with Shri Kamabhai Bharwad or his family members viz. Smt. Anuben Lalabhai Bharwad, Shri Ashok Lalabhai Bharwad and Shri Pintoo Lalabhai Bharwad in past or present." 13. Even Sanjay Vrajlal Dhanak who is dealing with real estate business in Ahmedabad from whom the petitioner purchased a flat in Shyam Residence on Science City Road has also sworn an affidavit on 9.12.2....
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....ase of Shree Ram Veesel Scrap (P) Ltd. cited by the learned counsel for the respondent no.1. But on examination of facts of that case, the ratio laid down appears to be in the context of background of a particular case. In the said case, the Court was dealing with the circumstances wherein show cause notice was issued by the Commissioner calling upon to explain why cases should not be centralised at Ahmedabad for effective and coordinated investigation and assessment. The Commissioner passed an order after considering their objections and while passing the order, even Commissioner has permitted oral submissions made by the authorised representative and in the said case, an alternative place was also suggested and therefore,in that background that order of transfer came to be passed. In the said case, though the Court has dealt with section 127 of the Act, the facts and background of case altogether were different wherein opportunity was very much afforded. Whereas, in the present case, as stated above, exercise of power is undertaken in complete disregard of principles of natural justice. In the present case, we are constrained to hold that there is a serious procedural irregularit....