M/S Piyush Shelters India Private Limited v. Commissioner Of Income Tax, Gurgaon & Ors

CWP No. 21214 of 2014(O0&M IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH CWP No. 21214 of 2014(O&M)Date of Decision: 6.1.2015 M/s Piyush Shelters India Private Limited Petitioner Versus Commissioner of Income Tax, Gurgaon & ors. | ... Respondents CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLAHON'BLE MR. JUSTICE B.S. WALIA Mr. Rajesh Sethi, Advocate, andMir. Arun Biriwal, Advocate,for the respondents. RAJIVE BHALLA, J.(Oral) By way of this order we shall decide CWP Nos.21214,22802 and 22856 of 2014 as controversy in these petitionsrelates to legality of an order passed under Section 12/(2) of theIncome Tax Act, 1961 (hereinafter referred to as ‘the Act’). Counsel for the petitioner submits that order dated30.5.2014 transferring jurisdiction, in respect of the petitioner-company, to Kanpur has been passed without service of a showcause notice or affording an opportunity of hearing to thepetitioner. Counsel for the petitioner further contends thatsection 12/7(1) of the Act envisages transfer of jurisdiction onl CWP No. 21214 of 2014(O0&M after the assessee is provided a reasonable opportunity of beingheard. A perusal of the record reveals that what to talk of areasonable opportunity of being heard, no notice was everserved upon the petitioner. Counsel for the petitioner furthersuomits that In case, a snow cause notice had beenissued/served to the petitioner they would have brought it to thenotice of the officer that in the interregnum the registered officehas shifted to Meerut. Counsel for the petitioner prays that theimpugned order may be set aside and the Commissioner may bedirected to reconsider the matter. Counsel for the revenue, while accepting the fact thata written snow cause notice was not Issued, points out that In apost decisional reply, the assessee has admitted that atelepnone call was received thereby proving that tne petitionerwas aware that proceedings for transfer of jurisdiction were inprogress. This apart, a perusal of note-sheet prepared on29.5.2014 reveals that proceedings have been signed by thepetitioners representative thereby proving that an opportunity ofhearing, as required by Section 12/7(2) of the Act, was granted tthe petitioner. We have heard counsel for the parties, perused theimpugned orders as well as Section 12/7 of the Act, whichempowers officers named in the said provision to transfer ofjurisdiction from one Assessing Officer to another. The power CWP No. 21214 of 2014(O0&M conferred by Section 12/7 of the Act may be exercised, but onlafter affording the assessee a reasonable opportunity of beingheard and by recording reasons for the transfer. Iherequirement of affording an assessee a reasonable opportunityof hearing inheres service of a notice calling upon the assesseeto show cause why jurisdiction should not be transferred tromone to another Assessing Officer. The requirement of areasonable opportunity of hearing would require the officerconcerned to form an opinion of the necessity of transfer tromone to another jurisdiction, apprise the assessee of such animpending eventuality and upon receipt of a reply, if any, fromthe assessee, afford an opportunity of hearing and then pass areasoned order as required by Section 127 of the Act, A perusal of the record as well as the reply revealsthat the respondents are unable to refer to any show causenotice much less any communication that may answer to thedescription of a notice informing the assessee about theproposed change of jurisdiction. A reference in the postdecisional representation filed by the assessee to a telephonecall may give rise to an inference that the assessee was awareof a proposal to transfer jurisdiction, but does absolve theauthority of its obligation to disclose the particulars of theproposed transfer. The presence of a representative of theassessee on 29.95.2014, aS recorded in the order-sheet coul CWP No. 21214 of 2014(O0&M A perusal of the record as well as the reply revealsthat the respondents are unable to refer to any show causenotice much less any communication that may answer to thedescription of a notice informing the assessee about theproposed change of jurisdiction. A reference in the postdecisional representation filed by the assessee to a telephonecall may give rise to an inference that the assessee was awareof a proposal to transfer jurisdiction, but does absolve theauthority of its obligation to disclose the particulars of theproposed transfer. The presence of a representative of theassessee on 29.95.2014, aS recorded in the order-sheet coul CWP No. 21214 of 2014(O0&M have been relevant if this fact had been recorded in theimpugned order or if the impugned order had recorded anycontention raised by the said representative. A perusal of theimpugned order reveals that it does not refer to any contentionraised on behalf of the assessee thereby clearly proving that theassessee was not afforded any opportunity of hearing. In view of what has been recorded hereinabove, wenave no hesitation in holding tnat the impugned orders arecontrary to the provisions of Section 12/7 of the Act andconsequently, allow the writ petitions, set aside the impugnedorders and direct the Commissioner of Income Tax, Gurgaon, topass a fresh order after affording an opportunity to thepetitioners to file their reply to the proposed transfer ofjurisdiction. The matter be concluded within one month from thereceipt of certified copy of this order. (|RAJIVE BHALLA )JUDGE 6.1.2015monika (B.S. WALIA)JUDGE