Wp5114.09.Odt v. Commissioner Of Income Tax-Ii, Nagpur +1

FARAD CONTINUATION SHEET No.IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH AT NAGPUR Writ Petition No.5114/2009 ( Smt. Kiranbala W/o Shri Chaitanya Kochar ..V/s.. Commissioner of Income Tax-II, Nagpur +1 ) with Writ Petition No.5115/2009 ( Late Sheshkaranji Kochar through son and L.R. Shri Arun Kochar ..V/s.. Commissioner of Income Tax-II, Nagpur +1 ) with Writ Petition No.5116/2009 ( Smt. Seema Kochar ..V/s.. Commissioner of Income Tax-II, Nagpur +1 ) with Writ Petition No.5117/2009 ( Arun Kochar ..V/s.. Commissioner of Income Tax-II, Nagpur +1 ) with Writ Petition No.5118/2009 ( Smt. Kanishka Kochar ..V/s.. Commissioner of Income Tax-II, Nagpur +1 ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's ordersappearances, Court's orders of directionsand Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. C.J. Thakkar, counsel for petitioner. Mr. A.S. Jaiswal, counsel for respondent nos.1 and 2. CORAM: D.D. SINHA & F.M. REIS JJ. DATE: 18th DECEMBER, 2009. Heard Mr. Thakkar, learned counsel for petitioner and Mr. Jaiswal, learned counsel for respondent nos.1 and 2. Mr. Thakkar, learned counsel for petitioner submitted that the issue involved in the present writ petition is covered by the decision of the Apex court reported in (1976) 102 I.T.R. 281 (SC) (Ajantha Industries & Ors. V/s. Central boardof Direct Taxes & Ors). It is contended that so far as the provisions of section 127 (2) are concerned they deal with the powers of the Director General/Chief Commissioner/Commissioner of transfer of cases. It is contended that the petitioner is an assessee and comes within the jurisdiction of Income Tax Officer, Wardha. It is contended that the requirement under section 127 (1) and (2) of the Income Tax Act, 1961 is before issuing the order of transfer of cases the authority is required to give reasonable opportunity of hearing to the assessee and while passing the order the authority also has to give reasons for transferring the cases from one Assessing Officer to another. It is contended that in the case of the petitioners neither the petitioner was given reasonable opportunity of hearing before passing the order of transfer nor any reasons are recorded by the authority. Therefore, in view of the law laid down by the Apex Court in the above judgment, the order of transfer is liable to be quashed and set aside being inconsistent with the scheme of provisions of section 127 (1) and and (2) of the Income Tax Act, 1961. Mr Jaiswal, learned counsel for respondent nos.1 and 2 - Income Tax Department has submitted that the provisions of section 127 (1) deals with the power of transfer of cases and therefore, merely by transferring the cases from one head to another by itself does not cause any prejudice to the assessee though in a given case the opportunity of hearing could be given to the assessee and reasons for transfer may be given. It is further contended that in the instant case the authority who has passed the order though given reasons but after the passing of the order of transfer. Mr. Jaiswal, learned counsel for respondent nos.1 and 2 - Income Tax Department seeks time to collect more material on the subject in order to argue the issue on the next date of the hearing. Mr. Thakkar, learned counsel for petitioner has submitted that Income Tax Department may be directed not to proceed with the matter. after the passing of the order of transfer. Mr. Jaiswal, learned counsel for respondent nos.1 and 2 - Income Tax Department seeks time to collect more material on the subject in order to argue the issue on the next date of the hearing. Mr. Thakkar, learned counsel for petitioner has submitted that Income Tax Department may be directed not to proceed with the matter. Taking into consideration the rival contentions and going through the decision of the Supreme Court, cited by the learned counsel for the petitioner, we are of the view that the decision of the Supreme Court has positive bearing on the issue involved. However, we grant some more time to the Income Tax Department and keep these matters on 9/1/2010 for admission. In the meantime though we permit the Income Tax Department to proceed with the matter and take the decision however same shall not be given effect without prior permission of this Court. Place the matters on 9/1/2010 for admission. JUDGEJUDGE