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SCA/22870/2006 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 22870 of 2006
======================================
ASHWIN
VANASPATI INDUSTRIES PVT.LTD.
Versus
COMMISSIONER
OF INCOME-TAX-I
======================================
Appearance :
Mr.
S.N. Soparkar, Senior Advocate, with Mr. Tushar P. Hemani for the
petitioner
Mr.
Manish R. Bhatt for the
respondent
======================================
CORAM
:
HONOURABLE
THE ACTING CHIEF JUSTICE Y.R.MEENA
and
HONOURABLE
MR.JUSTICE A.S.DAVE
Date
: 08/01/2007
ORAL
ORDER
Mr.
Soparkar, learned counsel for the petitioner submits that, in the
notice, the reason is given only that, ‘the transfer is proposed
to be effected to facilitate coordinated investigation’, which is
very vague and this cannot be a ground for transfer of the case. He
placed reliance on the decision of the Punjab and Haryana High Court,
in Rajesh Mahajan & others vs. Commissioner of Income-tax,
[2002] 257 ITR 577, wherein, on identical fact-situation, it is held
that the reasons recorded are not relevant for transfer and the order
of transfer was held to be not valid. At page 589 of the aforesaid
decision in Rajesh Mahajan [supra],
the cases referred are: (i) Vijayasanthi Investments Pvt. Ltd. v.
Chief CIT, [1991] 187 ITR 405 [AP]; (ii) Saptagiri Enterprises v.
CIT, [1991] 189 ITR 705 (AP); (iii) Y. Moideen Kunhi and Co. v. ITO,
[1993] 204 ITR 29 [Karn]. Shivajirao Angre vs. CIT, [1986] 158 ITR
162 [MP]; and (iv) Power Controls vs. CIT, [2000] 241 ITR 807
(Delhi).
Mr.
Soparkar, further, submits that, before transferring the case from
one CIT to another CIT under Section 127(1) of the Income Tax Act,
1961, condition precedent should be that the reasons should not be
vague and an opportunity of being heard should be given before
passing final order. In this case, though opportunity of being heard
has been given, but reason for transfer is not relevant. The reason
has been given that the assessee has some business connection with
Sukhwani, who has been assessed at Pune. That group case was not
transferred to Mumbai and the case of the assessee is proposed to be
transferred from Vadodara to Mumbai.
Considering
the submissions and the case-law cited at the Bar, we set aside the
impugned order of transfer dated 6th October 2006 because
the reason is given that, ?Sthe fact remains that assessee is
connected with the Sukhwani group??. Admittedly, the assessee is
not connected directly with Sukhwani group. Therefore, the reason is
irrelevant.
When
the order dated 6th October 2006 has been set aside on the
ground that the reasons given in the notice are vague and no relevant
reason has been given in the final order dated 6th October
2006, the Officer concerned will be at liberty to issue fresh notice
stating therein the reasons, but that should not be vague, and, after
giving opportunity of hearing to the assessee, if necessary, pass
transfer order under Section 127(1) of the Income Tax Act, 1961.
Accordingly,
this petition is allowed.
(Y.R.
MEENA, ACTG.C.J.)
[swamy] (ANANT
S. DAVE, J.)
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