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High Court Of Calcutta
SABYASACHI MUKHERJI
CACHAR PLYWOOD LTD. - Appellant
Versus
INCOME-TAX OFFICER, "A" WARD - Respondent
Civil Rule 537 (W) Of 1973
Decided On : 11/27/1975
INCOME TAX - SECTION 127 - TRANSFER OF CASES - OPPORTUNITY OF HEARING - RECORDING OF REASONS - MALA FIDE - COURT HELD THAT THE ASSESSEE WAS GIVEN AN OPPORTUNITY OF BEING HEARD, REASONS WERE RECORDED, AND THERE WAS NO MALA FIDE INTENT.
Fact of the Case:
THE PETITIONER, CACHAR PLYWOOD LIMITED, CHALLENGED AN ORDER OF TRANSFER OF ITS CASE FROM THE INCOME-TAX OFFICER, "A" WARD, KARIMGANJ, TO THE INCOME-TAX OFFICER, CENTRAL CIRCLE XXXIII, CALCUTTA, PASSED ON 23RD DECEMBER 1972. THE PETITIONER ARGUED THAT NO OPPORTUNITY WAS GIVEN, NO REASONS WERE RECORDED, AND THE ORDER WAS PASSED MALA FIDE.
Finding of the Court:
THE COURT FOUND THAT THE ASSESSEE WAS GIVEN AN OPPORTUNITY OF BEING HEARD, AS EVIDENCED BY THE NOTICE SERVED ON 8TH NOVEMBER 1972 AND THE ASSESSEE'S SUBSEQUENT LETTER EXPRESSING NO OBJECTION TO THE TRANSFER. THE COURT ALSO FOUND THAT REASONS FOR THE TRANSFER, I.E., TO FACILITATE INVESTIGATION, WERE RECORDED BEFORE THE TRANSFER ORDER WAS ISSUED. THE COURT FURTHER FOUND NO EVIDENCE OF MALA FIDE INTENT.
Issues: 1. WHETHER THE ASSESSEE WAS GIVEN AN OPPORTUNITY OF BEING HEARD BEFORE THE TRANSFER. 2. WHETHER REASONS FOR THE TRANSFER WERE RECORDED. 3. WHETHER THE TRANSFER ORDER WAS PASSED MALA FIDE.
Ratio Decidendi: THE COURT HELD THAT SECTION 127 OF THE INCOME-TAX ACT, 1961, REQUIRES THE BOARD TO GIVE THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND TO RECORD REASONS FOR THE TRANSFER, UNLESS IT IS NOT POSSIBLE TO DO SO. IN THIS CASE, THE COURT FOUND THAT THE ASSESSEE WAS GIVEN AN OPPORTUNITY OF BEING HEARD AND THAT REASONS FOR THE TRANSFER WERE RECORDED. THE COURT ALSO FOUND NO EVIDENCE OF MALA FIDE INTENT.
Final Decision: THE COURT DISMISSED THE PETITION AND DISCHARGED THE RULE NISI.
( 1 ) IN this application under Article 226 of the Constitution the petitioner challenges an order of transfer of its case from the Income-tax Officer, "a" Ward, Karimganj, to the Income-tax Officer, Central Circle XXXIII, Calcutta. The said order was passed on the 23rd of December, 1972. The challenge is based on three grounds. It was urged, firstly, that no opportunity was given to the petitioner ; secondly, it was submitted that no reason had been recorded for the transfer and, thirdly, it was urged that the impugned order was passed mala fide. Section 127 of the Income-tax Act, 1961, provides as follows :"127. Power to transfer cases.-- (1) The Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from any Income-tax Officer or Income-tax Officers subordinate to him to any other Income-tax Officer or Income-tax Officers also subordinate to him and the Board may similarly transfer any case from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers : provided that nothing in this sub-section shall be deemed to require any such opportunity to be given where the transfer is from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers and the offices of all such Income-tax Officers are situated in the same city, locality or place : provided further that where any case has been transferred from any Income-tax Officer or Income-tax Officers to two or more Income-tax Officers, the Income-tax Officers to whom the case is so transferred shall have concurrent jurisdiction over the case and shall perform such functions in relation to the said case as the Board or the Commissioner (or any Inspecting Assistant Commissioner authorised by the Commissioner in this behalf) may, by general or special order in writing, specify, for the distribution and allocation of the work to be performed. (2) The transfer of a case under Sub-section (1) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Income-tax Officer or Income-tax Officers from whom the case is transferred. Explanation.--In this section and in Sections 121, 123, 124 and 125 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. "
( 2 ) IT was, therefore, necessary for the Board in this case to give, an opportunity to the assessee unless the Board thought that such opportunity was ,not possible, and to record the reasons before passing the impugned order. So far as giving of the opportunity is concerned, the original records were produced before me and from the same I find that the notice was given to the assessee. The said notice was served on the assessee on the 8th of November, 1972, and the original acknowledgment receipt bearing the rubber stamp of the petitioner was produced before me. I am not, therefore, satisfied that such opportunity as contemplated by Section 127 of the Income-tax Act, 1961, was not given to the assessee. What is more, in this case, a letter was written (torn) signed by the principal officer on behalf (torn) assessee dated the 21st of November (torn) to the following effect:
To
The Under Secretary,
Central Board of Direct taxes,
Govt. of India ,
New Delhi .
Ref : Your notice under sec. (torn)
127 (1) of the Income-tax
Act, 1961, issued under (torn)
file No. 185/141/72-IT (AI) (torn ).
Dear Sir,
With reference to your notice quoted (torn) above, w
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