Shree Ram Electrocast (P) Ltd. and Another vs Commissioner of Income Tax and Others

Soumitra Pal, J.—Affidavit of service filed in court today be kept with the records.

In the writ petition the petitioner, a private limited company within the meaning of the Companies Act, 1956, has challenged the order dated 21-10-2008 passed u/s 127 of the Income Tax Act, 1961 by the Commissioner, Kolkata-I, Kolkata, transferring the file from Kolkata to Ranchi on the ground that neither the petitioner was given an opportunity of hearing to present its case as sought for by letter dated 17-10-2008 nor the order reveals how written objections dated 22-8-2008 and 2-9-2008 filed pursuant to the notices dated 19-8-2008 and 27-8-2008 proposing transfer were considered. Relying on the statements in the writ petition, it has been submitted by the learned senior advocate appearing on behalf of the petitioner that personal inconvenience for attending at Ranchi was not only the ground on which the proposal of transfer was objected to since the Chief Commissioner, Patna has written a letter to Chief Commissioner, Kolkata giving no objection for transfer of assessment records to Kolkata which was highlighted in para 5 of the letter dated 2-9-2008. In this regard reliance has been placed on the statements made in para 8 of the writ petition. Moreover, though the petitioner by letter dated 17-10-2008 sought for an opportunity of hearing the same has been denied. Since search took place at Kolkata, Dhanbad and Jhalda and no cause of action took place at Ranchi as evident from pp. 85 and 86 of the writ petition, transfer of file from Kolkata to Ranchi is unjust.

Learned advocate appearing on behalf of the revenue supporting the order impugned has contended that it is evident from the written objections that the place of business was at Jharkhand and therefore, the respondent No. 1 was justified in passing the order directing transfer of the case from Kolkata to Ranchi.

In order to appreciate the issue it is necessary to refer to the order impugned, the relevant portion of which is set out hereunder:

Order u/s 127 of the Income Tax Act, 1961

order No. 24 of 2008-09

Consequent to search and seizure operations u/s 132 of the Income Tax Act, 1961 in the ''Shri Ram'' group of cases, the CIT (Central), Ranchi requested vide two separate proposals that the cases named in Column. (2) of the schedule below be centralized for the purposes of co-ordinated investigation with the assessing officer mentioned in Column. 6 of the schedule below. 2. In the interest of natural justice and in pursuance of requirements of Clause (a) of Sub-section (2) of Section 127, the assessees were provided an opportunity to be heard in the matter of the proposed transfer, by issue of notice dated 22-5-2008 in respect of the cases named at serial. Nos. 1 and 2 of the Schedule, and by notice dated 19-8-2008 in respect of the case named at serial. No. 3 of the said schedule.

Each of the assessees raised objections against the transfer on the grounds that:

(i) no search had been conducted on these specific companies,

(ii) that none of the directors and employees were residents of Ranchi, and

(iii) that the company had no infrastructure to attend the proceedings at Ranchi.

The said objection was communicated to the Commissioner-I, Patna with a request to give comments thereon and provide material indicating nexus between/amongst the assessees under proposed transfer and the other assessees of the group assessed in Ranchi. The Commissioner-I, Patna vide his letter dated 18-8-2008 received on 25-8-2008, communicated the information and grounds on which centralization was being sought.

The said information was communicated to the assessee vide further show-cause notices, each dated 27-8-2008, copies of which are being made part hereof. However, copy of notice pertaining to a particular assessee is annexed with the copy of order issued to such assessee and the same is marked as Annexure ''A. In response, the assessees filed further rejoinders, all on 3-9-2008, and all reiterating their original objections. The copy of rejoinder relevant to each assessee is enclosed herewith as Annexure ''B''. They have also filed further letters each dated 17-10-2008 addressed to Chief Commissioner, Kol-1 and copies were endorsed to this office. The copy of relevant letter to each assessee is also enclosed herewith as Annex. ''C.

The contents of the assessee''s rejoinder as well as further letter with Annexures thereto have been perused and considered. However, I do not find substantive merit in the same. Personal inconvenience in attending proceedings cannot override the public interest of co-ordinated investigation of group search cases.

Consequently in exercise of the powers conferred upon me by Sub-sections (1) and (2) of Section 127 of the Income Tax Act, 1961, and all other powers enabling me in this behalf, I, the Commissioner, Kol-I, Kolkata, do hereby transfer the case named in Column (2) of the schedule below, from the jurisdiction of the assessing officer named in Column (5) to the assessing officer named in, Column 6 of the said schedule.

Schedule of cases transferred

SI. No.

Name of the assessee

Address

PAN

From

To

(1)

(2)

(3)

(4)

(5)

(6)

1.

Shri Ram Metallics (P) Ltd.

8 Camac St., Kol-700017

AAICS9713K

Income Tax Officer Ward 1(1), Kol

Asstt. CIT Central Circle-1, Ranchi

2.

Shri Ram Residency (P) Ltd

AAJCS50821

Income Tax Officer Ward 1(1), Kol

3.

Shri Ram Electrocast (P) Ltd.

AAICS3476P

Income Tax Officer Ward 3(1), Kol

This order will take immediate effect.

Sd/-Encl : As above CIT

Kolkata-I, Kolkata

It appears that the respondent No. 1 by a letter dated 19-8-2008 had sought for objection regarding the proposed transfer of the file from Kolkata to Ranchi. The petitioner by a letter dated 22-8-2008 objected to such proposal. The said respondent again by letter dated 27-8-2008 sought the objection of the petitioner regarding the transfer of the case from Kolkata to Patna which was objected to by letter dated 2-9-2008. Thereafter, by letter dated 17-10-2008 the petitioner sought for hearing. It appears the order impugned refers to the objections dated 22-8-2008, 2-9-2008 and 17-10-2008. From para 5 of the order impugned it appears that the said respondent had "considered" the written objections. "Consideration" means taking into account and dealing with the materials on records leading to a decision which, in my view, should be reasoned and cogent. However, in the instant case the impugned order is silent how the replies and enclosures were considered. Though the respondent No. l had taken note of the letter dated 2-9-2008, para 5 of the said letter has not been dealt with. Besides, though by a letter dated 17-10-2008 request was made to grant an opportunity of hearing, same has not at all been considered. It is clear from the order impugned that the written objections were not at all scrutinised and order was passed mechanically. In my opinion, filing of objection is not an idle and empty formality. Therefore, the order impugned passed u/s 127 of the Act cannot be sustained and is, thus, set aside and quashed. The writ petition is allowed. The respondent No. 1 is at liberty to proceed afresh in accordance with law after giving the petitioner an opportunity of hearing on the basis of materials already on record.

Since the respondents were not called upon to file affidavits controverting the allegations in the writ petition, allegations are deemed not to have been admitted by them.

No order as to costs.