TaxTMI 
TaxTMI 
2021 (3) TMI 1069
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....ned notices dated 16.07.2020 and 29.07.2020 annexed hereto at Annexure-A and Annexure-C respectively along with consequential order under Section 127(2)(a) of the Income Tax Act, 1961, dated 17.08.2020 at Annexure-F; (C) Award the costs of this petition. (D) Grant such other and further reliefs as this Hon'ble Court deems fit." 2. The subject matter of challenge in the present litigation is to the order dated 17th August 2020 of transfer of the proceedings under Section 127(2)(a) of the Income Tax Act, 1961 (for short, 'the Act 1961') from the ACIT (E), Circle-2, Ahmedabad, to the DCIT, Central Circle-1, Vadodara. 3. The show-cause notice dated 16th July 2020, calling upon the writ-applicant to show-cause as to why the proceedings should not be transferred under Section 127(2) of the Act reads thus : "To, M/s.Sumandeep Vidyapeeth Piparia, Waghodia, Vadodara 391760. Sir, Sub: Show Cause notice along with Opportunity letter in respect of proceedings U/s 127(2) of the I.T. Act, 1961 and Centralization of case in connection with Search conducted in M/s Sumandeep Group of Baroda - reg. 2. In connection with the above, it is to inform you that your c....
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....Group of Baroda." It is accordingly requested to kindly ignore the contents of this para. 3. Your case is proposed to be centralized with other group cases for co-ordinated investigation and as per provisions of section 127(2)(a) of the I.T. Act, opportunity of being heard in this matter and is hereby provided to you. It is requested to either submit your reply through email or speed post or attend before the undersigned in person or through an Authorised Representative on 06/08/2020 at 03:30 P.M. in this office to present your case. In case of noncompliance, it will be presumed that you have no objection to transfer your PAN to the DCIT, Central Circle-1, Vadodara and to pass Order U/s 127(2) of the I.T. Act in your case and the matter will be decided on merits and on the basis of documents available on record. (RITESH PARMAR) Commissioner of Income Tax (Exemptions), Ahmedabad" 5. The writ-applicant lodged his objections to the above referred show-cause notice vide communication dated 6th August 2020, essentially raising the following issues : (i) Documents issued without Document Identification Number (DIN) are invalid. (ii) Provisions of Section 153A/153C are not ....
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....nt, has vehemently submitted that the impugned order is erroneous in law as the same is based on non-existent facts and incorrect reasons. He would submit that the grounds assigned by the department for transfer of the case are vague. It is submitted that although the reason of coordinated investigation has been assigned by the department to justify transfer, yet the same does not specifically find place or there is no specific reference of the same in the show-cause notice. 10. Mr.Patel, in support of his aforesaid submission, has placed reliance on the following decisions : 1. Ajantha Industries vs. Central Board of Direct Taxes, (1976) 102 ITR 281 (SC); 2. Ramswaroop vs. Commissioner of Income-tax-II, Nagpur, (2016) 70 taxmann.com 5 (Bombay); 3. Anuben Lalabhai Bharwad vs. Principal Commissioner of Income-tax-3, (2016) 72 taxmann.com 178 (Gujarat); 4. Principal Commissioner of Income Tax (Central) vs. Rohtas Project Ltd., (2018) 100 taxmann.com 384 (SC). 11. In such circumstances referred to above, Mr.Patel prays that there being merit in his writ-application, the same be allowed and the impugned order may be quashed and set-aside. SUBMISSIONS ON BEHALF OF THE REVENUE....
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....ment Centre or by the central charge and now no assessment could be made by the ACIT (Exemption). 13. In such circumstances referred to above, Mr.Bhatt prays that there being no merit in this writ-application, the same may be rejected. ANALYSIS : 14. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the authority concerned committed an error in passing the order of transfer under Section 127 of the Act. 15. Section 124 of the Act pertains to the jurisdiction of the Assessing Officer. Sub-section (1) of Section 124 reads as under : "124(1) Where by virtue of any direction or order issued under sub-section (1) or sub-section (2) of section 120, the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction-- (a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession ....
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....ssing 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 subsection (2) may be made at any stage of the proceedings, and shall not render necessary the reissue 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 any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year." 17. Section 124(1) of the Act lays down the jurisdiction of the Assessing Officer, whereas under sub-section (1) of Section 127 of the Act, it is open to the concerned authorit....
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....rring an assessment of an assessee at a far away distance would certainly cause inconvenience and prejudice. It is in this respect that under sub-section (3) of Section 127, the requirement of hearing and recording of reasons for transferring an assessment is not made applicable when the assessment is being transferred from one Assessing Officer to another Assessing Officer, both being situated in the same city, locality or place. The third important element of Section 127 is when an assessment is being transferred from one Assessing Officer to another Assessing Officer, both of whom are not subordinate to the same head, the same could be done only with the agreement of the respective heads and if there is no such agreement, only by the Board or the authority that the Board may authorise in this behalf, by issuing notification in the official Gazette. This last requirement would ensure that there is no discordance between the heads of the two Assessing Officers from where the assessment is transferred to where it is being transferred and in case there is a disagreement, such powers can be exercised only by the Board or an officer so authorised by the Board. While we are on the requ....
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....Commissioner or Commissioner to transfer a case from one Assessing Officer to another who is not subordinate to him in agreement with the authority to whom he may be subordinate. Sub-section (3) of Section 127 provides that nothing contained in sub-section (1) or subsection (2) shall be deemed to require giving of any such opportunity where the transfer is from any Assessing Officer to another and offices of all such officers are situated in the same city, locality or place. Sub-section (4) of Section 127 provides that 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-issuance of any notice already issued by the Assessing Officer from whom the case is transferred. 21. Exercise of power under sub-section (1) and subsection (2) of the Act comes with certain procedural requirements namely, of granting a reasonable opportunity of being heard in the matter wherever it is possible to do so, of recording of reasons for passing such order and as provided by the Supreme Court in Ajanta Industries (supra) communicating such reasons also to the assessee. Subject to fulfillment of such procedural....
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....his Court will not interfere with the discretion of the administrative authority who transfers the case. This discretion is vested by the Act in high ranking officers viz. Commissioner of Income Tax and the necessity to transfer a case from the jurisdiction of one officer to another officer for better administration of the Act could be diverse and impossible to enumerate. It is for the above reason that Section 127 of the Act has not limited the exercise of jurisdiction by specifying any circumstances before the authority can exercise his powers to transfer the case. One more fact which cannot be lost sight of is that an assessee cannot choose his Assessing Officer and, therefore, if the transfer order does indicate some valid reasons to justify the transfer and such reasons are neither perverse or arbitrary or mala fide this Court would not interfere with the reasonable exercise of discretion." 21. The Delhi High Court, in the case of Vishal Kumar vs. Commissioner of Income, reported in (2014) 44 taxmann.com 180 (Delhi), held as under : "10. The assessee also has the opportunity to present his case and be subject to a regular assessment, in front of the Assessing Officer to wh....
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....ronouncements including the judgment of Apex Court in the case of PCIT (Central) vs. Rohtas Project Limited (100 Taxman 384). The Judgments cited by you are not discussed in this letter as none of these judgments have been contravened. There are valid and justifiable reasons as per I.T. Act for transfer of your case which is mentioned in subsequent Para Nos. 4.1 to 4.7. Further, following the principles of natural justice, you were provided opportunity of being heard before finalization of proceedings U/s 127(2) (a) of the Act. 4.1 According to you, the reason of co-ordinated investigation in your case is vague. It is claimed that you were not carrying out any business activities and the trustees are not connected with any group (including any Sumandeep Group} as they are not involved in the functioning of Sumandeep University. For countering your claim, it would be appropriate to discuss the background of your case. It is pertinent to mention that information was received from the Office of the Director in-charge and Special Director, ACB Gujarat, Ahmedabad that a raid by Anti- Corruption Bureau in the case of Sumandeep Vidhyapith was carried out on 27/02/2017. It was also inti....
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....eme Court vide Criminal Appeal No.989 of 2018, 27/04/2020 has allowed the appeal of the Gujarat State. Relevant paras of said judgment are extracted as under : "51. In the present case, on a prima-facie evaluation of the statements of the Gaurav D. Mehta (the Vice- Chancellor); Mr.Pragneshkumar Rameshbhai Trivedi (account officer of Sumandeep Vidhyapith University) and other witnesses it appears that the present respondent was the final authority with regard to the grant of admission, collection of fees and donation amount. 52. The charge sheet specifically discloses that the respondent allegedly was collecting certain extra amount over the prescribed fees on the pretext of allowing the students to fill up their examination forms. Therefore, paying the respondent the alleged amount was a condition precedent before filling up the forms, to appear for the examinations. Specifically, in the complaint, it was alleged that the respondent had demanded an amount of Rupees Twenty Lakhs to be paid to the co-accused Bharat Savant, failing which the daughter of the complainant would not have been permitted to appear in the examination. In our opinion, the fact that there were a large nu....