M/S.shiv Gyan Developers Pvt. Ltd. & Another v. Commissioner Of Income Tax – 9 & Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2629 OF 2009 M/s.Shiv Gyan Developers Pvt. Ltd. & Another ..Petitioners Versus Commissioner of Income Tax – 9 & Others ..Respondents Mr.Jitendra Jain with Mr.Girish B. Kedia for the petitioners.Mr.B.. Chatterji i/by Ms.Padma Divakar for the respondents. CORAM : Dr.D.Y. Chandrachud & J.P. Devadhar, JJ. DATE : 11[th] March, 2010. P.C. : 1.Rule, returnable forthwith by consent of Counsel for the parties. By consent of both the parties, taken up for hearing and final disposal. 2.The challenge in these proceedings is to an order passed on 25[th ]November 2009 under Section 127(2) of the Income Tax Act, 1961, by which the case of the petitioners has been transferred from Mumbai to Jaipur. The grievance of the petitioners is that the order was passed in breach of the principles of natural justice since the rejoinder filed by the petitioners on 6[th], 9[th], 11[th] and 17[th] November 2009 has not been considered though several objections were raised by the first petitioner therein. During the course of hearing, we have suggested to the learned Counsel appearing on behalf of the Revenue that in order to obviate the grievance of the petitioners that there has been a breach of principles of the natural justice, it would be appropriate for the Revenue to reconsider the question as to whether the case of the petitioners should be transferred under Section 127(2) afresh by treating the impugned order as a notice to show-cause. The learned Counsel appearing on behalf of the Revenue has no objection to this course of action been followed, of course with a clarification from the Court that the Court has had no occasion to deal with the merits of the case. The learned Counsel for the assessee also has no objection. Accordingly, the following order is passed : i)The impugned order dated 25[th] November 2009 shall be treated as a notice to show-cause to the petitioners. The assesee does not intend to file any further replies or pleadings other than what is already on record;as a notice to show-cause to the petitioners. The assesee does not intend to file any further replies or pleadings other than what is already on record; ii)The Revenue would be at liberty to pass a fresh order in accordance with law after furnishing to the assessee an opportunity of being heard;accordance with law after furnishing to the assessee an opportunity of being heard; iii)Ad-interim stay granted by this Court on 17[th] December 2009 shall continue to remain in operation until a fresh order is passed and in the event of a transfer being directed, for a period of two weeks from the date of service of the order, in order to enable the petitioners to pursue remedies available in law; iv)The rights and contentions of the parties on merits are kept open; v)In view of the directions which have been issued by this Court, there has been no occasion for the Court to adjudicate upon any of the issues on merits.of the issues on merits. 2.The writ petition is accordingly disposed of. There shall be no order as to costs. (J.P. Devadhar, J.)(Dr.D.Y. Chandrachud, J.)