Wa/100006/2014 Of Income Tax Officer v. M/S.madeeha Enterprises

IN THE HIGH COURT OF KARNATAKADHARWAD BENCH DATED THIS THERE [‘T]DAY OF AUGUST 2015 PRESENT THERE HONOURABLE MR..JUSTICK ANAND BYRARBD AND THR HONOURABLE MRS.JUSTICEHK S.SUJAT !WRIT APPEAL NO.100006/2014 (IIT)C/W.!WRIT APPEAL NO.100002/2014 (IIT)!WRIT APPEAL NO.100007/2014 (IIT)!WRIT APPEAL NO.100008/2014 (IIT)!WRIT APPEAL NO.100009/2014 (IIT)!WRIT APPEAL NO.100010/2014 (IIT) In Writ Appeal No. 100006/201 BHRTWRE/ 1.Income Tax Officer,Ward-2, Bellary,Aayakar Bhavan,staff Road, Fort,Bellary-583102,Ward-2, Bellary,Aayakar Bhavan,staff Road, Fort,Bellary-583102, 2.Deputy Commissioner ofIncome Tax, Circle-1, Bellary,Aayakar Bhavan, Staii Road,Fort, Bellary-583102.Income Tax, Circle-1, Bellary,Aayakar Bhavan, Staii Road,Fort, Bellary-583102. 3.Commissioner ot Income Tax-Gulbarga, Aayakar Bhavan,sadam Road, Gulbarga-585105.Gulbarga, Aayakar Bhavan,sadam Road, Gulbarga-585105. 4Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,Income TaxCentral Circle-2, Belgaum, eharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 5 Deputy Commissioner ofIncome TaxCentral Circle, Belgaum,Sharadha Building,sarait Colony, Khanapur roadTilakwadi, Belgaum-s90006. 6.Commissioner ot Income Tax(Appeals)-VI,C.R.Building,No.1, Queens Road,Bangalore-s60001. ...Appellant (By Shri E.R.Indrakumar, Senior Counsel for ShriY.V.Raviraj, Advocate.) AN D: M/s.Madeeha Enterprises,No.1622, Madeeha House,KHB Colony, J.P.Nagar,Hospet-983201,Rep. by its Managing Partner,Mr.Meeran Abdul Aleem. ...Respondent. (By Shri M.V.Sheshachala, Senior Counsel for ShriH.R.Kambiyavar, Advocate.) This Writ Appeal is filed under Section 4 ofthe High Court Act, 1961, praying to set aside theorder|otthe.learnedsingleJudge,5,)+511.11.2013, passed in writ petition No.83056/2013and to dismiss the writ petition No.83096/2013,preferred by the petitioner, etc.,. In Writ Appeal No. 100002/201 BETWREN/ 1.Income Tax Officer,Ward-2, Bellary,Aayakar Bhavan,stati Road, Fort,Bellary-583102,Ward-2, Bellary,Aayakar Bhavan,stati Road, Fort,Bellary-583102, ?)Deputy Commissioner ofIncome Tax, Circle-l,Bellary, Aayakar Bhavan,Income Tax, Circle-l,Bellary, Aayakar Bhavan, Stall Road, Fort, Bellary-583102. 3.Commissioner ot Income Tax-Gulbarga, Aayakar Bhavan,Gulbarga, Aayakar Bhavan, sadam Road, Gulbarga-585105. 4.Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,Income TaxCentral Circle-2, Belgaum, sharadha Building, saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006.Tilakwadi, Belgaum-s90006. 5)Deputy Commissioner ofIncome TaxCentral Circle, Belgaum,Income TaxCentral Circle, Belgaum, Sharadha Building, saraf Colony, Khanapur road, Tilakwadi, Belgaum-s90006. 6.Commissioner ot Income Tax(Appeals)-VI, C.R.Building,No.1, Queens Road,Bangalore-s60001.(Appeals)-VI, C.R.Building,No.1, Queens Road,Bangalore-s60001. ...Appellant (By Shri E.R.Indrakumar, Senior Counsel for ShriY.V.Raviraj, Advocate.) AN Db: M/s.Madeeha Enterprises,No.1622, Madeeha House,KHB Colony, J.P.Nagar, Hospet-583201, Rep. by its Managing Partner,Mr.Meeran Abdul Aleem. ...Respondent. (By Shri M.V.Sheshachala, Senior Counsel for ShriH.R.Kambiyavar, Advocate.) This Writ Appeal is filed under Section 4 ofthe High Court Act, 1961, praying to set aside theorder|otthe.learnedsingleJudge,5,)+511.11.2013, passed in writ petition No.830595/201and to dismiss the writ petition No.83095/2013,preferred by the petitioner, etc.,. In Writ Appeal No.100007/2014 BETWHRE/ 1.Income Tax Officer, Ward-2, Bellary, Aayakar Bhavan, stati Road, Fort, Bellary-583102, ?)Deputy Commissioner of Income Tax, Circle-1l Bellary, Aayakar Bhavan, Staii Road, Fort, Bellary-9583102 3.Commissioner ot Income Tax-Gulbarga,Gulbarga, Aayakar Bhavan, Sadam Road,Gulbarga-S85105. 4 Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. This Writ Appeal is filed under Section 4 ofthe High Court Act, 1961, praying to set aside theorder|otthe.learnedsingleJudge,5,)+511.11.2013, passed in writ petition No.830595/201and to dismiss the writ petition No.83095/2013,preferred by the petitioner, etc.,. In Writ Appeal No.100007/2014 BETWHRE/ 1.Income Tax Officer, Ward-2, Bellary, Aayakar Bhavan, stati Road, Fort, Bellary-583102, ?)Deputy Commissioner of Income Tax, Circle-1l Bellary, Aayakar Bhavan, Staii Road, Fort, Bellary-9583102 3.Commissioner ot Income Tax-Gulbarga,Gulbarga, Aayakar Bhavan, Sadam Road,Gulbarga-S85105. 4 Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 5 Deputy Commissioner ofIncome TaxCentral Circle, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 6.Commissioner ot Income Tax(Appeals)-VI, C.R.Building,No.1, Queens Road,Bangalore-s60001. .. Appellant (By Shri E.R.Indrakumar, Senior Counsel for ShriY.V.Raviraj, Advocate.) AN D: M/s.Madeeha Enterprises,No.16022, Madeeha HouseKHB Colony, J.P.Nagar,Hospet-983201,Rep. by its Managing Partner,Mr.Meeran Abdul Aleem. ...Respondent. (By Shri M.V.Sheshachala, Senior Counsel for ShriH.R.Kambiyavar, Advocate.) This Writ Appeal is filed under Section 4 ofthe High Court Act, 1961, praying to set aside the Order|Otthe.learnedsingleJudge,5,)+511.11.2013, passed in writ petition No.830957/201and to dismiss the writ petition No.83097/2013,preferred by the petitioner, etc.,. In Writ Appeal No.100008/2014 BETWREN/ 1.Income Tax Officer,Ward-2, Bellary,Aayakar Bhavan,staff Road, Fort,Bellary-583102,Ward-2, Bellary,Aayakar Bhavan,staff Road, Fort,Bellary-583102, ?)Deputy Commissioner ofIncome Tax, Circle-1lBellary,Aayakar Bhavan, Staff Road,Fort, Bellary-583102.Income Tax, Circle-1lBellary,Aayakar Bhavan, Staff Road,Fort, Bellary-583102. 3.Commissioner ot Income Tax-Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-585105.Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-585105. 4Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 5 Deputy Commissioner ofIncome TaxCentral Circle, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 6.Commissioner ot Income Tax(Appeals)-VI,C.R.Building,No.1, Queens Road,Bangalore-s60001. .. Appellant (By Shri E.R.Indrakumar, Senior Counsel for ShriY.V.Raviraj, Advocate.) AN Db: M/s.Madeeha Enterprises,No.16022, Madeeha HouseKHB Colony, J.P.Nagar,Hospet-583201,Rep. by its Managing Partner,Mr.Meeran Abdul Aleem. ...Respondent. (By Shri M.V.Sheshachala, Senior Counsel for ShriH.R.Kambiyavar, Advocate.) This Writ Appeal is filed under Section 4 ofthe High Court Act, 1961, praying to set aside theorder|otthe.learnedsingleJudge,5,)+511.11.2013, passed in writ petition No.83058/2013and to dismiss the writ petition No.83058/2013,preferred by the petitioner, etc.,. In Writ Appeal No.100009/2014 BHRTWRE/ 1.Income Tax Officer, Ward-2, Bellary,Aayakar Bhavan,Aayakar Bhavan, stati Road, Fort,Bellary-583102, ? Deputy Commissioner ofIncome Tax, Circle-1lIncome Tax, Circle-1l Bellary,Aayakar Bhavan, Staff Road,Fort, Bellary-583102.Aayakar Bhavan, Staff Road,Fort, Bellary-583102. 3.Commissioner ot Income Tax-Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-S85105.Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-S85105. 4Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006.Income TaxCentral Circle-2, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 5 Deputy Commissioner of Income TaxCentral Circle, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006.Central Circle, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. stati Road, Fort,Bellary-583102, ? Deputy Commissioner ofIncome Tax, Circle-1lIncome Tax, Circle-1l Bellary,Aayakar Bhavan, Staff Road,Fort, Bellary-583102.Aayakar Bhavan, Staff Road,Fort, Bellary-583102. 3.Commissioner ot Income Tax-Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-S85105.Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-S85105. 4Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006.Income TaxCentral Circle-2, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 5 Deputy Commissioner of Income TaxCentral Circle, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006.Central Circle, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 6.Commissioner ot Income Tax(Appeals)-VI, C.R.Building,No.1, Queens Road,Bangalore-s60001.(Appeals)-VI, C.R.Building,No.1, Queens Road,Bangalore-s60001. ...Appellant (By Shri E.R.Indrakumar, Senior Counsel for ShriY.V.Raviraj, Advocate.) AN D: M/s.Madeeha Enterprises,No.1622, Madeeha House,KHB Colony, J.P.Nagar, Hospet-983201, Rep. by its Managing Partner,Mr.Meeran Abdul Aleem. ...Respondent. (By Shri M.V.Sheshachala, Senior Counsel for ShriH.R.Kambiyavar, Advocate.) This Writ Appeal is filed under Section 4 ofthe High Court Act, 1961, praying to set aside theorder|otthe.learnedsingleJudge,5,)+511.11.2013, passed in writ petition No.83059/2013and to dismiss the writ petition No.830599/2013preferred by the petitioner, etc.,. In Writ Appeal No. 1O0O0O10/2 BETWHRE/ 1.Income Tax Officer,Ward-2, Bellary,Aayakar Bhavan,staff Road, Fort,Bellary-583102,Ward-2, Bellary,Aayakar Bhavan,staff Road, Fort,Bellary-583102, ?)Deputy Commissioner ofIncome Tax, Circle-l,Bellary,Aayakar Bhavan, Staff Road,Income Tax, Circle-l,Bellary,Aayakar Bhavan, Staff Road, Fort, Bellary-583102. 3.Commissioner ot Income Tax-Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-585105.Gulbarga,Aayakar Bhavan, Sadam Road,Gulbarga-585105. 4Assistant Commissioner ofIncome TaxCentral Circle-2, Belgaum,Income TaxCentral Circle-2, Belgaum, sharadha Building, paral Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 5 Deputy Commissioner ofIncome TaxCentral Circle, Belgaum,sharadha Building,saraf Colony, Khanapur road,Tilakwadi, Belgaum-s90006. 6.Commissioner ot Income Tax(Appeals)-VI,C.R.Building,No.1, Queens Road,Bangalore-s60001. .. Appellant (By Shri E.R.Indrakumar, Senior Counsel for ShriY.V.Raviraj, Advocate.) AN D: M/s.Madeeha Enterprises,No.1622, Madeeha House,KHB Colony, J.P.Nagar,Hospet-983201,Rep. by its Managing Partner,Mr.Meeran Abdul Aleem. ...Respondent. (By Shri M.V.Sheshachala, Senior Counsel for ShriH.R.Kambiyavar, Advocate.) This Writ Appeal is filed under Section 4 ofthe High Court Act, 1961, praying to set aside theorder|otthe.learnedsingleJudge,5,)+511.11.2013, passed in writ petition No.83060/2013and to dismiss the writ petition No.83060/2013,preferred by the petitioner, etc.,. These appeals coming on for final hearing thisday, Anand Byrareddy, J, delivered the followingC;5>1+&)/ JUDGMENT Heard|the.learnedSenior.AdvocateShriE.R.Indrakumar, appearing for the learned counselfor the appellants and Shri M.V.Sheshachala,senior Advocate, appearing for the learned counselfor the respondent. oDThe brief facts are as follows:- ,"These appeals are preferred against acommon order of a learned single Judge, whereinin the circumstance that the respondents who werethe petitioners who are seeking to question thetransferoT|theirCaSESfromthe.DeputyCommissioner of Income Tax, Ballari,to theDeputy Commissioner of Income Tax, Belagavi,under Section 127 of the Income Tax Act, 1961(hereinafter referred to as ‘the IT Act’, for brevity).Thepetitioners|had.challengedthe.order|.3transfer on the ground that the transfer was made JUDGMENT Heard|the.learnedSenior.AdvocateShriE.R.Indrakumar, appearing for the learned counselfor the appellants and Shri M.V.Sheshachala,senior Advocate, appearing for the learned counselfor the respondent. oDThe brief facts are as follows:- ,"These appeals are preferred against acommon order of a learned single Judge, whereinin the circumstance that the respondents who werethe petitioners who are seeking to question thetransferoT|theirCaSESfromthe.DeputyCommissioner of Income Tax, Ballari,to theDeputy Commissioner of Income Tax, Belagavi,under Section 127 of the Income Tax Act, 1961(hereinafter referred to as ‘the IT Act’, for brevity).Thepetitioners|had.challengedthe.order|.3transfer on the ground that the transfer was made in contravention ot Section 127 ot the II Act.secondly, that the principles of natural justicehave not been complied with, as the respondentswere not heard in the matter before passing of theorder and that the order was never communicatedto the respondent. ="It was contended that no reasons wereassigned in the order of transfer and that the orderof transfer caused hardship to the respondents,since they had to carry a large volume of files toBelagavi, which was a place far away from theplace of business of the respondent and the placewhere the respondents were residing, 0"The learned single Judge has found as afact, that a show cause notice had been issued ono./.2011 directing the assessee to file objections tothe proposed transfer and he was also directed tofilestatementsOn)OT|before10.7.201Theassessee had filed his objections and stated thatthe department in transferring the file of thepetitioners to Belagavi would cause grave hardship and he had to carry a large volume of files and hewas also to produce atleast a hundred witnesseson all dates of hearing, it was impossible for theassessee to comply, and therefore, it was expectedthat no such order of transfer would be passed.However he was shocked to learn that there was anorder of transfer which was never communicated tothe assessee and it was only on receiving a letteraddressed to him, as regards, compliance otSection 153 ot the IT Act that it dawned on theassessee that there was an order of transfer,transferring|9q1]thematters fromBallari.).Belagavi. reasonable opportunity was granted before passingthe order of transfer, the order was bad as beingcontrary to the judgment of the Supreme Court inAjantha Industries and others us. Central Board ofDirect Taxes and others, (1976) 102 ITR 281 (SC)and also an unreported judgment of this Court ofalearnedjudgeotthisCourtinWritPetition No. 33035/2011andconnectedmattersinM.B.Mallikarjuna vs. the Commissioner of IncomeTax, Davangere,wherein it was interpreted thatunless reasonable opportunity of meeting theproposal of transfer is granted to the assessee andcommunicated to him and reasons are assigned inpassing the order of transfer, the same would fallfoul of the law and would have to be set at naught.It 18 on accepting these contentions that thelearnedsingleJudge,placingreliance..&Y.Moideen Kunht and Co. vs. Income Tax Officerand|others|etc.,(1993)JTI1CTR(Kar)|174,particularly para no.17/ therein, and also referrinto para 7 of.Ajantha Industries case (supra),hadopined|that|there|Wasnon.complianceot,mandatoryrequirementoT lawand.not|.&-6quashed the order of transfer, but also set asidethe assessment orders passed by the AssessingAuthority, Belagavi. It is that order which is underchallenge in the present appeals. 3.Shri|E.R.Indrakumar,learnedSeniorAdvocate appearing for the learned counsel for theappellants, would point out that the sequences ofevents have not been addressed in their rightperspective by the learned single Judge. It ispointed out that the order of transfer though wascommunicated to the respondent, for reasons bestknown, the postal authorities, had returned itun-served, this is placed on record. 3.Shri|E.R.Indrakumar,learnedSeniorAdvocate appearing for the learned counsel for theappellants, would point out that the sequences ofevents have not been addressed in their rightperspective by the learned single Judge. It ispointed out that the order of transfer though wascommunicated to the respondent, for reasons bestknown, the postal authorities, had returned itun-served, this is placed on record. 4. He would thereafter point out that thoughthe order of transfer was passed in the year 2011,the writ petition challenging the same was filed inthe year 2013. In the meanwhile the assessee hadappeared before the Assessing Authority, Belagaviand had participated in the proceedings and hadthen suffered an order of assessment which waseven challenged in appeal and an application forstay was also filed when the writ petitions came tobe filed. And on the writ petition being allowed, and the Assessment Order having been set aside,the appeals have been withdrawn. 5He|wouldcontendthatonce)8+respondents had acceded to the jurisdiction of theAssessing Authority at Belagavi, the assesseeswere precluded from questioning his jurisdictionafter having suffered an Assessment Order andtherefore the order of the learned single Judge isbad in law. He places reliance on a judgment of aLarger Bench in the case of|Pannalal Binjraj andanother vs. the Union of India and others, (1957) 31ITR 565 (SC),to support the proposition that oncethe assessee accedes to the jurisdiction of theAssessing Authority and having suffered an orderof assessment and also having challenged the samein appeal, would not be in a position to questionthe transfer order, which would be redundant,thereatter. 6. The appellants seeking to claim that theyhave suffered grave prejudice by virtue of the orderof transfer having been passed without assigningTeEaSODNOT|communicatingthe.Same TO|)8+respondent assessee is also incorrect. A copy ofthe transfer order would indicate that the reasonsare assigned and the objections of the assesseehave also been considered. In that, the order oftransfer was warranted, in order to consolidateand coordinateand investigate<+9+',-assessments together and it is for the sake ofadministrativeconvenience.thatthe.order|.3transfer was passed and therefore, the assesseehavingacquiescedinthejurisdiction|oT )8+Assessing Authority cannot seek to question theOrder|Ottransfer|and.indirectlyattack|)8+AssessmentOrder,whichhehad.sought.).challenge by way of an appeal. The sum effect ofthe delay in challenging the transfer order that hehas already suffered an order on merits and now toquestion the order of transfer, as it were, and the single Judge having set aside the AssessmentOrder has resulted in a premium being placed onthe assessees own fault in not having questionedthe order of transfer at the appropriate time. T ThelearnedSeni0rAdvocateShriM.V.Sheshachala, on the other hand, points outthat the decision inPannalal Binjraj, supra,reliedupon by the appellants was in relation to Sectiono(7A) of the Income Tax Act, 1922, which providedan omni-bus power to the authority to pass ordersof transfer, whereas Section 127 of the IT Act iswordeddifferentlyand.hasCOTTEin3.'interpretation by the Supreme court in the case otAjantha Industries, supra,wherein the Court hasheld that it is mandatory to hear the assesseebefore an order oi transfer 1s passed and to assignreasons for the transfer and to communicate theorder of transfer, none of which has been compliedwith in the present case on hand and therefore therelianceplacedOT]Pannalal’s.CASE, SUuUP(<misconceived and the alleged delay in filing the T ThelearnedSeni0rAdvocateShriM.V.Sheshachala, on the other hand, points outthat the decision inPannalal Binjraj, supra,reliedupon by the appellants was in relation to Sectiono(7A) of the Income Tax Act, 1922, which providedan omni-bus power to the authority to pass ordersof transfer, whereas Section 127 of the IT Act iswordeddifferentlyand.hasCOTTEin3.'interpretation by the Supreme court in the case otAjantha Industries, supra,wherein the Court hasheld that it is mandatory to hear the assesseebefore an order oi transfer 1s passed and to assignreasons for the transfer and to communicate theorder of transfer, none of which has been compliedwith in the present case on hand and therefore therelianceplacedOT]Pannalal’s.CASE, SUuUP(<misconceived and the alleged delay in filing the writ petition questioning the order of transfer isalso not tenable for the reason that no order oftransfer was furnished to the assessee at all and itis also indirectly that the assessee had learntabout the order of transfer. The writ petitionhaving been entertained on the ground that noncomplianceotthe.mandatoryrequirement.3Section 127 of the IT Act rendered the order oftransfer a nullity and the Assessment Order havingbeen set at naught is in order and in accordancewith other judgments of this Court and in line withseveral decisions which have taken a similar view. 8.Further, it is pointed out that graveapprehension of hardship and inability of theassessee to carry large volumes of files and largenumber of witnesses from Ballari to Belagavi hasindeed proved a handicap resulting in the assesseehaving suffered an Assessment Order for want ofsuch|materialbeingmadeavailableTO|)8+Assessing Officer. This was the primary objectionraised to the order of transfer and which indeed has proved true insofar as prejudicing the case otthe assessee. Hence the intervention of the learnedsingle Judge was in the above circumstances whichis fully justified and would submit that theRevenue does not suffer any prejudice and sincethe.matterhasbeen|reopened,it would=+available for the Revenue to establish its case, if atall, and the assessee having been provided anopportunity in law to place all the availablematerial through its witnesses cannot be said tocause any prejudice or hardship to the Revenue. Itonly ensures complete justice, which is the objectof the law and this Court having intervened was inthe interest of justice and seeks that the appealsbe dismissed| QOBy way of reply, Shri E.R.Indrakumarwould point out that to complete the sequence ofevents he would submit that even during thependency of the assessment proceedings certaindiscoveries having been made on search, it wasnecessary to re-do the assessment on the basis of such additional material that was gathered andthat exercise having been carried out to its hilt bygiving full opportunity to the assessees, it cannotbe said that there is any injustice caused insofaras addressing the case on merits is concerned andeven if the alleged injustice to the assessees.Further, since the Appellate Authority is also afactfindingauthorityand.Sinceit|1S ,continuation of the assessment proceedings, it 1spossible for the Appellate Authority to call for areport from the Assessing Authority at Ballari, asprovided under Section 250(4) of the IT Act,whereby the assessee would be enabled to producesuch material and examine such witnesses who,according to the assessee, have not been examinedor any material not having been produced onaccount of the distance from his place of residenceto the office of the assessing authority whoconducted the assessment proceedings. And onthe basis of such a report it would be available forthe assessee to urge the grounds of appeal and even possibly to substantiate the same. Theretoreno prejudice would be caused to the assessee, ifeven the appeals that were withdrawn as havingbeen rendered infructuous, on the learned singleJudgeallowingthewritpetitions,could|=+restored to file. Such a measure could be taken bythe Appellate Authority, thereby not only satisfyingthe assessees but also ensuring complete justiceas is sought to be canvassed by the petitioner. Forotherwise.the.entireexercise.oT|having>.&+through the assessment proceedings is rendered anullity and there is duplication of work for thedepartment which results in avoidable waste ofeffort, time and expense and hence would seek thatthis alternative approach may be adopted and theappeals could be restored to file and opportunitybe granted to the assessee to place additionalmaterial and examine such material as may beavailable, by recourse to Section 250(4) of theIT Act. 10.Therefore, in the above circumstances, itis to be kept in view that several judgments citedby Shri M.V.Sheshachala, are all instances wherethe orders of transfer under Section 127 have beenpromptly challenged before the High Court. Thegiven circumstance that there was clearly a lapseof time in questioning the transfer orders and inthe interregnum assessment orders having beenpassed and the same also having been challengedin appeal would render the challenge to thetransfer order as being redundant. For this reasonalonethe.present|factsotthe.Ca SC<),&5distinguished. But however the circumstance thatthe assessee was unable to produce additionalmaterial documents and was unable to examine alarge number of witnesses, would also have to beKept in view. Therefore in order to ensure thatthere is fairness and opportunity of hearing, itwould be necessary to balance the claims of boththe parties and since the law provides for theprocedure where this can be addressed, the writ appeals are allowed. The order of the learnedsingle Judge is set aside and modified to the extentthat the Assessment Orders are restored to file. 11.Theappeals.preferredagainst)8+Assessment Orders are also restored to file. TheAppellate Authority shall call for a report undersection 250(4) of the I.T.Act, from the CentralAssessing Authority, Ballari, who in turn shallpermit the assessee to tender such additionaldocumentsand tenderwitnessesaS|=+necessary in support of his case and on the basisof the said report, further proceedings shall betaken by the Appellate Authority and appropriateorders be passed in accordance with law. The officeof the Central Assessing Authority which is nowcreated at Ballari would be competent to furnishsuch a report, 12.ThelearnedSenior.AdvocateShriM.V.Sheshachala would at this stage submit thatthe department is likely to take precipitative actionand therefore the interest ot the assessee be safeguarded. In this regard, it is pointed out byShri E.R.Indrakumar that there is provision undersection 220(6) of the IT Act, which provides thaton an application before the Assessing Authority,he shall not treat the assessee as a defaulter, ifthere is an appeal pending and subject to suchconditions as may be imposed, shall not recoverany amount, pending disposal of the appeal. Henceit is open for the assessee to make such anapplication before the assessing authority. It ismadeclearthatSincethere|1S 0+&)',-(G+5Assessing Authority at Ballari, it is open for theassessee to approach that authority with such anapplication. od/-JUDGE od/-JUDGE