Db Special Appeal (Writ) v. The Principal Chief Commissioner Of Income Tax, Jaipur & Ors

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR DB Special Appeal (Writ) No.249/2015M/s. Lalit Hans Protien Pvt. Ltd. & anr.Vs.The Principal Chief Commissioner of Income Tax,Jaipur & ors. Date of Order :: 01/04/2015PRESENT HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE J.K. RANKA Mr. Anant Kasliwal, counsel for the appellants.Mrs. Parinitoo Jain, counsel for the respondents. Reportable BY THE COURT (Per Hon'ble Ranka, J.) 1.Instant intra-court appeal has been preferredagainst order of the ld. Single Judge dt.04/03/2015. 2.Brief facts, which can be noticed on perusal of the impugned order, are that the appellant-assessee is a privatelimited company and was initially incorporated as M/s. HariKewal Solvex Private Limited by the Registrar of Companies,Rajasthan, Jaipur at No.17-018216 in 2003-04 and later onits name was changed to M/s. Lalit Hans Protien Pvt. Ltd. Itis claimed that the assessee is being assessed at Alwar bythe officers of the Income Tax Department since inception.The assessee is in the business of Vanaspati Oil and is also manufacturing/producing oil in a plant at Alwar. 3.A search and seizure operation was carried by the respondent-department at Kolkata in the Purti Group ofCompanies on 18/09/2012 where it is claimed that theauthorized officers found incriminating material. It is thecontention of the Revenue that since the assessee as well asits directors have a close and live link with Purti Group ofcompanies, therefore, a survey under Section 133 A wascarried at the business/factory premises of the assessee atAlwar simultaneously on 18/09/2012. It is also claimed thatduringthecourseofsurvey,incriminatingdocuments/material was found and during the course ofsurvey, the directors of the assessee surrendered incomeand gave cheques to the tune of Rs.15 lac towards tax. Theofficers, assessing Purti Group of Companies, Kolkata, cameto the conclusion that the appellants and its directors areclosely associated and linked with the business of PurtiGroup of Companies, Kolkata and on the basis of someincriminating material found during the course of search andseizure operation in the case of Purti Group of Companiesrelating to assessee and with a view to have coordinatedinvestigation, the officers of the Revenue at Kolkata felt thatall cases under the umbrella of Purti Group of Companies including the assessee is required to be centralized andassessed by a common officer at Kolkata where entire PurtiGroup is assessed so also even Directors of the appellantfirm who were already being assessed at Kolkota. 4.Admittedly, the Commissioner of Income Tax-III,Kolkota sent a communication to centralize the case of theappellant-M/s. Lalit Hans Protien Pvt. Ltd. from ACIT Circle-1,Alwar to DCIT CC-XXV, Koltaka and opportunities wereprovided by the Commissioner, Alwar to the appellant bydetailed letters dt.12/03/2013 and 05/06/2014, inter-alia,mentioning that the assessee-appellant was part of the PurtiGroup of Industries, entire Purti Group was assessed toIncome Tax at Kolkata and even two directors of theappellant were assessed at Kolkata and prima-facie, it wasnoticed that there were transactions in between theappellant and Purti Vanaspati Pvt. Ltd and therefore, thecases are required to be centralized at Kolkata forcoordinated investigation. The transfer was objected by theappellant vide letter dt.11/05/2013 and 05/06/2014mentioning that there was no link in between the assesseewith that of Purti Group of Companies and the transaction, ifany of sale and purchase, is in ordinary course of businessand that too stands recorded in the books of accounts and there was no live link with the assessee with Purti Group ofCompanies and merely because both the directors areassessed at Kolkata, for that reason, it could not betransferred. However, The Commissioner considering thereplies of the assessee and relying upon certain authorities,rejected the claim of the assessee. 5.The claim was reiterated before the ld. SingleJudge and it was asserted that merely on the basis ofconjectures & surmises as well as assumptions andpresumptions, the case of the assessee could not have beentransferred from Alwar at a very far distant place. It hasbeen held by the ld. Single Judge that admittedly sometransactions have been noticed to have taken place by theassessee with that of Purti Group of Companies and may bethe transactions are minuscule but admittedly thetransactions are there. It has been further held by the ld.Single Judge that both the directors of the assessee are notonly brothers of the main director of Purti Group ofCompanies but also are being assessed at Kolkata sincebeginning. The ld. Single Judge also, on the basis of thematerial provided by the DDIT (Inv.) Hqrs. Tech.II, Kolkatathat name of the assessee finds place in the records of PurtiGroup of Companies, upheld the order dt.07/08/2014 6.Ld. counsel for the appellant-assessee vehemently contended that the order of the ld. Single Judge needsinterference as the ld. Single Judge has not decided thecontroversy in right manner. He contended that thesearch/survey at Kolkata/Alwar was carried on 18/09/2012and till date even after two and half years, the Revenue hasnot been able to disclose about live link of the assessee withPurti Group of Companies. He contended that at the time ofsurvey, books of accounts and other material were carried bythe Revenue Officers and nothing has come out during lastabout two and half years as to what has been found/noticedto link the affairs of the assessee viz-a-viz Purti Group ofCompanies. He drew attention of this Court about totalturnover viz-a-viz sales to M/s. Purti Vanaspati PrivateLimited that it was just about 2.75%, 3.65% and 2.44 % forthe years ended on 31/03/2012, 31/03/2013 and31/03/2014 respectively and contended that merely becausesome stray, sale or purchases are there with Purti Group ofCompanies, transfer of the case of the assessee from Alwarto Kolkata, cannot be said to be justified. It was furthercontended that the turnover during the period ended on31/03/2014 was Rs. 1,62,36,47,989/- wheres the sale to M/s Purti Vanaspati Private Limited was only to the extent ofRs.3,95,75,351/- and thus merely because there were sometransactions, it cannot be said that there was live link of theassessee with Purti Group of Companies. He furthercontended that the directors have choice to be assessed atKolkata and merely because two of the directors are beingassessed at Kolkata, does not mean that there is live link andthe case could be transferred . He further contended that theorder of the ld. Single Judge needs interference. In additionto the cases relied upon by the assessee before the ld.Single Judge, he also relied upon the judgments rendered inthe case of R.K. Agrawal & others Vs. CIT: (2006) 283 ITR532 (All); Global Energy (P) Ltd. Vs. CIT: (2013) 89 DTR(Bom-Goa); Sachin Joshi Vs. CIT: (2015) 370 ITR 598 (Bom)and Noorul Islam Educational Trust Vs. CIT, W.P. (MD)No.60 of 2009, decided by Madras High Court vide judgmentdt.11/12/2009. 7.Per-contra, ld. counsel for the respondent- Revenue strenuously supported the order of the ld. SingleJudge and contended that concentrated efforts ofcoordinated investigation in cases like this are required to bedone by the officers of the Income Tax Department. Shefurther contended that not only at Kolkata but at Alwar also, 7.Per-contra, ld. counsel for the respondent- Revenue strenuously supported the order of the ld. SingleJudge and contended that concentrated efforts ofcoordinated investigation in cases like this are required to bedone by the officers of the Income Tax Department. Shefurther contended that not only at Kolkata but at Alwar also, at the time of search/survey, incriminating material wasfound linking the assessee with Purti Group of Companies.She further contended that prima-facie view is required to belooked into at the time of transfer of cases and theCommissioner at Alwar as well as Commissioner at Kolkata,noticing that there was live link in between the assessee viz-a-viz Purti Group of Companies, correctly came to suchconclusion and contended that the cases are required to belooked into by a senior Assessing Officer (AO) otherwisethere will be different versions and different/contradictoryfinding on the same material which needs to be avoided. Shefurther contended that there is no harm to the assessee inattending proceedings at Kolkata as at Alwar also theassessee is being assisted by a counsel and he may engageservices of a counsel/CA at Kolkata, with no inconvenience.She further contended that the circular of the Central Boardof Direct Taxes dated.25/04/2014 with regard tocentralization of cases would indicate that the cases like thisneed to be centralized for concentrated investigation. Shefurther contended that the directors of the assessee, noticingincriminating material, had also surrendered certain incomeand gave cheques of Rs.15 lac as tax against the incomesurrendered at the time of survey on the spot as per thestatement of the Director recorded by the officers of the survey team. She relied upon the judgments, which wererelied upon before the ld. Single Judge. Counsel for theRevenue further stated that all the assessment records of the appellant-assessee have already been transferred/sent to theDCIT CC- XXV, Koltaka on 18/03/2015. 8.We have considered the arguments advanced byld. counsel for the parties and have perused the order of theld. Single Judge, impugned herein as well as the order ofCommissioner at Alwar and the Commissioner at Kolkata andin our view, the ld. Single Judge has rightly come to theconclusion that on the basis of the material noticed, it wouldbe appropriate to have coordinated investigation in cases likethis. The assessee so also Purti Group of Companies (M/s.Purti Vanaspati Pvt. Ltd.) are into the same trade andadmittedly sales/purchases have been found to have takenplace in between the assessee and M/s Purti Vanaspati Pvt.Ltd., may be the turnover is not so large but that does notmean that there is no live link in between the assessee andPurti Group of Companies. It was admitted by Mr. KamalAgrawal, appellant No.2 herein, who is Director of theappellant No.1 on 18/09/2012 when the statements werebeing recorded, that the assessee purchased Palm Oil fromM/s Purti Vanaspati Pvt. Ltd., Kolkata and sold “Kacchi Dhani” Mustard Oil to M/s Purti Vanaspatri Pvt. Ltd and thatMr. Kishore Agrawal, who is managing the affairs of M/s PurtiVanaspati Pvt. Ltd., is his elder brother. 9.It would be appropriate to quote the guidelines issued by the Central Board of Direct Taxes dt.17/09/2008and 25/04/2014 for the purposes of centralization of cases,which reads as under:- “i. Non-search cases connected with thesearch cases where findings of the searchhave material bearing and needs ofcoordinated investigation/interest of revenuerequire such cases to be assessed in theCentral Charge. ii. Survey cases or enquiry cases (whethersuch enquiries were conducted by any wingof the department or an outside agency)wherein some organized/ systematicmanipulation of accounts/fraud/substantialrevenue is involved and/or coordination with outside agencies or a large number ofofficers within the department is required. 9.It would be appropriate to quote the guidelines issued by the Central Board of Direct Taxes dt.17/09/2008and 25/04/2014 for the purposes of centralization of cases,which reads as under:- “i. Non-search cases connected with thesearch cases where findings of the searchhave material bearing and needs ofcoordinated investigation/interest of revenuerequire such cases to be assessed in theCentral Charge. ii. Survey cases or enquiry cases (whethersuch enquiries were conducted by any wingof the department or an outside agency)wherein some organized/ systematicmanipulation of accounts/fraud/substantialrevenue is involved and/or coordination with outside agencies or a large number ofofficers within the department is required. iii. Cases arising out of scam as a result ofinvestigation/ enquiry conducted by someother Law Enforcement Agency where needsof coordinated investigation/ interest ofrevenue require centralization. iv. Complex cases of substantial revenueimplication requiring in-depth investigation. v. Any other case which is required to becentralized for administrative requirement orother reasons stated by the DsGIT/CsCIT, asthe case may be.” 10.After analyzing the circular of the Board (supra)and Section 127(2), in our view, case of the appellant wouldfall in Para (i) and Para (iv) of the aforesaid circular as asurvey has been made at the business premises of theappellant simultaneously and the Revenue has been able toestablish that there was interconnection of the appellant withPurti Group of Companies and not only search case butsurvey case like that of the appellant also needs in-depthinvestigation/coordinated investigation to bring out thedesired results by a common officer. 11.Admittedly, the Commissioner granted adequateopportunity of being heard twice and adequate reasons havebeen recorded and even such reasons have been conveyedto the appellant and under Section 127 once the reasonshave been recorded and so also conveyed to the appellant,then the courts in normal circumstances ought not tointerfere in the administrative decisions taken by theRevenue. Admittedly, incriminating material has been found not only at Kolkata but also at Alwar andconcentrated/coordinated investigation is required to be seenat this stage. Endeavour of not only of the Revenue but theassessee as well, is of framing of correct assessments, whilea tax payer needs to pay the desired tax on the incomeearned, the Revenue also collects due tax, neither a pennymore nor a penny less. 12.As observed earlier, though the Directors of theappellant are being assessed at Kolkata, may not be of muchrelevance but certainly a doubt is created as to when boththe working directors are being assessed at Kolkata why onlythe appellant should be left out to be assessed at Alwar.Admittedly, the appellant No.2 and Dinesh Agarwal, the tworeal brothers and directors of the appellant company, haveshown their residential addresses in their return of income as49-A, Tollygunge, Circular Road, Kolkata-53 where the otherdirectors and real brothers of the directors of the PurtiVanaspati (P) Ltd. are also residing. Therefore, in the instantcase, the revenue has been able to establish live link of thepresent-appellant (assessee) viz-a-viz Purti Group ofCompanies/Directors. The ld. Single Judge has already observed that the Panchanama drawn on 18/09/2012 shows the name of theappellant as one of the companies in the Purti Group ofCompanies and during the search operation, papers ofconnected transactions, inter linked business activities of theassessee-company were also found and seized from theKolkata office. Ld. Single Judge has rightly come to theconclusion that in order to examine the entries recorded indocuments/share transactions, books of accounts and hard The ld. Single Judge has already observed that the Panchanama drawn on 18/09/2012 shows the name of theappellant as one of the companies in the Purti Group ofCompanies and during the search operation, papers ofconnected transactions, inter linked business activities of theassessee-company were also found and seized from theKolkata office. Ld. Single Judge has rightly come to theconclusion that in order to examine the entries recorded indocuments/share transactions, books of accounts and hard disc and to carry out further proper investigation in acoordinated manner, all the cases of group and theconnected cases are required to be centralized at one placewith the same assessing officer and we also concur with thefinding reached by the ld. Single Judge and we are notpersuaded to come to a different conclusion as has beenreached by the ld. Single Judge. 14.With regard to the contention of the ld. counsel of the assessee that even after lapse of more than two and ahalf years,nothing concrete has been provided by thedepartment to justify the action u/s 127; we feel thatdepartment at this stage is not required to provide all thematerial available at its end and only when matters arecentralized and assessment is taken up then only theincriminating material found by them can be confronted. Passage of time is no basis to withhold transfer of cases inthe facts of the instant matter. 15.The Hon'ble Apex Court, in the case of K.P.Mohammed Salim Vs. CIT: (2008) 300 ITR 302 (SC), heldthat the power of transfer is in effect a machinery provisionand it must be given its full effect. It must be construed in amanner so as to be workable. Section 127 of the Act is amachinery provision and it should be construed to effectuatethe charging section so as to allow the authorities concernedto do so in a manner, wherefore the statute was enacted. 16.The Gauhati High Court, in the case of ContinentalMilkose (India) Ltd. Vs. CIT & ors.: (2013) 351 ITR 292, in acase where search and seizure operation was carried onContinental Milkose (India) group on March 9, 2012 at NewDelhi and all the directors of the company were residing atDibrugarh and entire group was being assessed at Dibrugarhsince inception but were attending proceedings at New-Delhiand it was noticed that the company had registered office atNew Delhi with the business activities in Noida and specificevidence had been gathered regarding tax evasion by thegroup at New Delhi and the Revenue was of the view thatenquiries were required to be conducted at New Delhi and to some extent in North East i.e. Dibrugarh, Revenue came to aconclusion that since major business activities in and aroundDelhi and the control is also at Delhi, the cases are requiredto be centralized at Delhi for effective and coordinatedinvestigation and administrative convenience and the HighCourt, after analyzing the provisions of Section 127(2) heldthat the order centralizing all the cases from Commissionerof Income Tax, Dibrugarh to Commissioner of Income Tax,Delhi was justifiable as there was material to show that therewas a search and seizure at Delhi and revenue has been ableto unearth tax evasion at Delhi which is being investigated atDelhi. 17.The Madhya Pradesh High Court, in the case ofAmbika Solvex & ors. Vs. CIT & ors.: (2014) 267 CTR 258,after analyzing the facts came to the conclusion that searchand seizure matters which by their very nature requireindepth study of seized material and hence such casesdeserves to be centralized with same AO's of the charge andupheld the claim of the Revenue. 18.The Delhi High Court, in the case of ATSInfrastructure Ltd. Vs. CIT: (2009) 318 ITR 299 (Delhi), afterapplying the decisions laid down by different courts, held 17.The Madhya Pradesh High Court, in the case ofAmbika Solvex & ors. Vs. CIT & ors.: (2014) 267 CTR 258,after analyzing the facts came to the conclusion that searchand seizure matters which by their very nature requireindepth study of seized material and hence such casesdeserves to be centralized with same AO's of the charge andupheld the claim of the Revenue. 18.The Delhi High Court, in the case of ATSInfrastructure Ltd. Vs. CIT: (2009) 318 ITR 299 (Delhi), afterapplying the decisions laid down by different courts, held that the decision to transfer the cases out of Delhi, wouldbecome unassailable, keeping in view the outcome of thesearches made in Delhi and in several other parts of UPunder the Commissioner, Kanpur and further found that nomaterial came to the possession to transfer the cases out ofDelhi was mala fide and accordingly upheld the contention ofthe Revenue. 19.The Hon'ble Apex Court, in the case of State of UP& Anr. Vs. Johri mal: AIR 2004 (SC) 3800 has observed asunder:- “It is well-settled that whileexercising the power of judicial review theCourt is more concerned with the decisionmaking process than the merit of the decisionitself. In doing so, it is often argued by thedefender of an impugned decision that theCourt is not competent to exercise its powerwhen there are serious disputed questions offacts; when the decision of the Tribunal or thedecision of the fact finding body or thearbitrator is given finality by the statute whichgoverns a given situation or which, by natureof the activity the decision maker's opinion onfacts is final. But while examining andscrutinizing the decision making process itbecomes inevitable to also appreciate thefacts of a given case as otherwise the decision cannot be tested under the grounds ofillegality,irrationalityorproceduralimpropriety. How far the Court of judicialreview can reappreciate the findings of factsdepends on the ground of judicial review. Forexample, if a decision is challenged asirrational, it would be wellnigh impossible torecord a finding whether a decision is rationalor irrational without first evaluating the factsof the case and coming to a plausibleconclusion and then testing the decision ofthe authority on the touch-stone of the testslaid down by the Court with special referenceto a given case. This position is well settled inIndian administrative law. Therefore, to alimited extent of scrutinizing the decisionmaking process, it is always open to the Courtto review the evaluation of facts by thedecision maker” 20.In our view, the exercise of power under sub-section (1) and sub-section (2) of Section 127 of the Actcomes with certain procedural requirements, namely, ofgranting a reasonable opportunity of being heard in thematter, of recording of reasons for passing such order andcommunicating such reasons to the assessee. Subject tofulfillment of such procedural requirements, the authorityunder Section 127 enjoys considerable discretion while 20.In our view, the exercise of power under sub-section (1) and sub-section (2) of Section 127 of the Actcomes with certain procedural requirements, namely, ofgranting a reasonable opportunity of being heard in thematter, of recording of reasons for passing such order andcommunicating such reasons to the assessee. Subject tofulfillment of such procedural requirements, the authorityunder Section 127 enjoys considerable discretion while exercising the power contained in sub-section (1) or sub-section (2) thereof. Such discretion, in our view, of-coursehas to be exercised for achieving the public purpose and notfor any arbitrary or irrelevant consideration. On the otherhand, it can also be seen that transfer of a pending casefrom one AO to another AO outside the State is likely tocause considerable inconvenience to an assessee. Therefore,even though an assessee may not have a vested right toinsist that his assessment be completed only at one place orby a particular AO, nevertheless, the reasons for transfermust be weighty enough to offset against such personalinconvenience of an assessee. In exercise of power undersection 127, we are concerned with larger public interest onone hand and personal inconvenience on the other.However, as long as such powers are exercised bona fide,for public purpose and in the interest of Revenue, the role ofthe Court in reaching to a different conclusion would beextremely limited. It is well settled that judicial reviewagainst the administrative orders in exercise of writjurisdiction, the court is concerned with the decision makingprocess and not the final decision itself. Unless the reasonswhich prompted the competent authority to transfer the casecan be stated to be wholly irrelevant or arbitrary, the Courtwould not interfere with such reasons. 21.We are in full agreement with the order passed bythe ld. Single Judge, which needs no interference and in thelight of what we have observed herein above, the judgmentsrelied upon by counsel for the assessee, in our view, aredistinguishable on facts and are inapplicable to the facts ofthe instant case. 22. Accordingly, for the reasons aforesaid, we do not find any infirmity in the order impugned passed by the ld.Single judge so as to call for interference by this Court in theinstant intra-court appeal. Consequently, the instant intra-court appeal, being devoid of any merit, is hereby dismissedwith no order as to costs. (J.K. Ranka), J. (Ajay Rastogi), J. Raghu Certificate:All corrections made in the judgment/order havebeen incorporated in the judgment/order being e-mailed.Raghu, Sr. PA.