Allowed

M/S.Vijay Sanjay Tradecom Pvt. Ltd. Andors v. Union of India and Anr.

Rajasthan HC27 Mar 2024CW/3087/2018

Case brief

AI extract

What is this about?

Batch of writ petitions challenged income tax transfer orders and consequential notices/assessment orders passed without hearing the assessees under Section 127. Following Murliwala Agrotech, the Court quashed the impugned transfer orders, notices and assessment orders and permitted proceedings to resume with an opportunity of hearing within three months.

What did the court decide?

Impugned transfer orders, notices and consequential assessment orders quashed; respondents may resume proceedings from pre-transfer stage after affording hearing, within three months.

M/S.Vijay Sanjay Tradecom Pvt. Ltd. Andors Vs Union of India… — Income Tax | Rajasthan HC (2024)

¶1

(1 of 13)

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[2024:RJ-JD:14135-DB]

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[CW-7436/2019]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶5

D.B. Civil Writ Petition No. 7436/2019

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M/s. Kashi Prayag Tradelink Pvt. Ltd., Through - Director Smt. Sarita Sarda C/o Sh. Prayag Das Sarda, Aged 35 Years, Sarda Mohalla, Deshnoke, Bikaner.

¶7

Sarita Sarda W/o Mr. Nirmal Kumar Sarda, Aged About 35 Years, By Caste Maheshwari, R/o House No. 230, Old Ward No-4, New Ward No. 6, Sarda Mohalla, Deshnoke, Bikaner.

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----Petitioners

¶9

Versus

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Union Of India, Through The Principal Comissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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The Income Tax Officer (Tech.), Officer Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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----Respondents

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Connected With

¶14

D.B. Civil Writ Petition No. 1858/2018

¶15

Vinita Sarda W/o Mr. Anil Sarda, By Caste- Maheshwari, R/oHouse No. 230, Old Ward No-4/ New Ward No-6, Sarda Mohalla, Deshnoke, Bikaner.

¶16

----Petitioner

¶17

Versus

¶18

Union Of India Through- The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶19

The Income Tax Officer Tech., Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Rajasthan.

¶20

----Respondents

¶21

D.B. Civil Writ Petition No. 3087/2018

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M/s Vijay Sanjay Tradecom Pvt. Ltd., Sadar Bazar, Deshnoke, Bikaner.

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M/s Bhoomika Enterprises, Prop. - Vijay Kumar Khatri Huf

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(2 of 13)

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[2024:RJ-JD:14135-DB]

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[CW-7436/2019]

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Sadar Bazar, Deshnoke, Bikaner. Both Represented By Mr. Vijay Kumar Khatri, Being The Director Of Petitioner No. 1 And Karta Of The Petitioner No. 2 Respectively

¶28

Vijay Kumar Khatri S/o Mr. Sri Krishna Khatri, By CasteKhatri, Khatri Gali, Sadar Bazar, Deshnoke, Bikaner.

¶29

----Petitioners

¶30

Versus

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Union Of India Through- The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

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The Income Tax Officer Tech., Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

¶33

----Respondents

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D.B. Civil Writ Petition No. 3990/2018

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M/s K.g. Enterprises, Through Proprietor Mr. Kishan Gopal Sarda S/o- Late Prayag Das Sarda, By Caste- Maheshwari, R/o Sarda Mohalla, Deshnoke, Bikaner Office Address- Behind State Bank Of India, Gangashahar Road, Bikaner.

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----Petitioner

¶37

Versus

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Union Of India Through- The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

¶39

The Income Tax Officer Tech., Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

¶40

----Respondents

¶41

D.B. Civil Writ Petition No. 5160/2019

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Anil Sarda S/o Mr. Kishan Gopal Sarda, Aged About 29 Years, By Caste- Maheshwari, R/o- C/o Smt. Kashi Devi Sarda, House No. 230, Old Ward No-4 / New Ward No. 6, Sarda Mohalla, Deshnoke, Bikaner.

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----Petitioner

¶44

Versus

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Union Of India, Through The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner,

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[2024:RJ-JD:14135-DB]

[CW-7436/2019]

(3 of 13)

Rajasthan.

The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶51

----Respondents

¶52

D.B. Civil Writ Petition No. 7393/2019

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M/s. Shree Chamunda Enterprises, Through Proprietor Mr. Nirmal Kumar Sharma S/o Mr. Sukhdev Sharma, By Caste- Sharma, Age- 34 Years, R/o- Bhardwaj Mention, Near Kasat School, Ward No. - 10, Deshnoke, Bikaner.

¶54

----Petitioner

¶55

Versus

¶56

Union Of India, Through- The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶57

The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶58

----Respondents

¶59

D.B. Civil Writ Petition No. 7405/2019

¶60

Nirmal Kumar Sarda S/o Mr. Kishan Gopal Sarda, Aged About 36 Years, By Caste- Maheshwari, R/o- C/o Smt. Kashi Devi Sarda, House No. 230, Old Ward No. -4 / New Ward No. 6, Sarda Mohalla, Deshnoke, Bikaner.

¶61

----Petitioner

¶62

Versus

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Union Of India, Through- The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶64

The Income Tax Officer (Tech)., Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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----Respondents

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D.B. Civil Writ Petition No. 7408/2019

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Kashi Devi Sarda W/o Late Prayag Das Sarda, Aged About 82 Years, By Caste- Maheshwari, Age- 82 Years, R/o- House No. 230, Old Ward No-4/ New Ward No.- 6, Sarda Mohalla,

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[2024:RJ-JD:14135-DB]

[CW-7436/2019]

(4 of 13)

Deshnoke, Bikaner.

----Petitioner

Versus

Union Of India, Through- The Principal Commissioner Of Income Tax Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aaykar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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----Respondents

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D.B. Civil Writ Petition No. 2066/2020

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Vinita Sarda W/o Sh. Anil Sarda, Aged About 26 Years, By CasteMaheshwari, R/o- House No. 230, Old Ward No- 4 / New Ward No. 6, Sarda Mohalla, Deshnoke, Bikaner

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----Petitioner

¶80

Versus

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Union Of India, Through- Additional Commissioner Of Income Tax Central Range - 8, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi

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Deputy Commissioner Of Income Tax, Central Circle - 32, Room No. 359, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi

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The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

¶85

----Respondents

¶86

D.B. Civil Writ Petition No. 3685/2020

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Sarita Sarda W/o Mr. Nirmal Kumar Sarda, Aged About 36 Years, By Caste- Maheshwari, R/o- C/o Smt. Kashi Devi Sarda, House No. 230, Old Ward No - 4/new Ward No - 6, Sarda Mohalla, Deshnoke, Bikaner

¶88

----Petitioner

¶89

Versus

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Union Of India, Through- Additional Commissioner Of Income Tax Central Range - 8, Iii Floor Ara Centre, E-2,

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(5 of 13)

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[2024:RJ-JD:14135-DB]

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[CW-7436/2019]

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Jhandewalan Extension, New Delhi

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Deputy Commissioner Of Income Tax, Central Circle - 32, Room No. 359, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi.

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The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

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The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

¶98

----Respondents

¶99

D.B. Civil Writ Petition No. 3769/2020

¶100

Anil Sarda S/o Kishan Gopal Sarda, Aged About 30 Years, By Caste Maheshwari, R/o C/o Smt. Kashi Devi Sarda, House No.230, Old Ward No.4/ New Ward No.6, Sarda Mohalla, Deshnok, Bikaner.

¶101

----Petitioner

¶102

Versus

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Union Of India, Through Additional Commissioner Of Income Tax Central Range - 8, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi

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Deputy Commissioner Of Income Tax, Central Circle - 32, Room No.359, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi

¶105

The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan

¶106

The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶107

----Respondents

¶108

D.B. Civil Writ Petition No. 3827/2020

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M/s. Kashi Prayag Tradelink Pvt. Ltd., Through - Director Smt. Sarita Sarda, W/o Nirmal Kumar Sarda B/c Maheshwari Aged 36 Years R/o Sh. Prayag Das Sarda, Sarda Mohalla, Deshnoke, Bikaner.

¶110

----Petitioner

¶111

Versus

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Union Of India, Through - Additional Commissioner Of

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(6 of 13)

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[2024:RJ-JD:14135-DB]

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[CW-7436/2019]

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Income Tax Central Range- 8, Iii Floor Ara Centre, E-2, Jhandewalan Exetension, New Delhi.

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Deputy Commissioner Of Income Tax, Central Circle- 32, Room No. 359 Ii Floor Ara Centre, E-2, Jhandewalan Exetension, New Delhi.

¶118

The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶119

The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶120

----Respondents

¶121

D.B. Civil Writ Petition No. 4049/2020

¶122

Kashi Devi Sarda W/o Late Prayag Das Sarda, Aged About 84 Years, By Caste Maheshwari, R/o House No. 230, Old Ward No. 4/new Ward No. 6, Sarda Mohalla, Deshnoke, Bikaner.

¶123

----Petitioner

¶124

Versus

¶125

Union Of India, Through Additional Commissioner Of Income Tax Central Range-8, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi.

¶126

Deputy Commissioner Of Income Tax, Central Circle-32, Room No. 359M, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi.

¶127

The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶128

The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

¶129

----Respondents

¶130

D.B. Civil Writ Petition No. 5836/2020

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Nirmal Kumar Sarda S/o Mr. Kishan Gopal Sarda, Aged About 37 Years, By Caste Maheshwari, R/o C/o Smt. Kashi Devi Sarda, House No. 230, Old Ward No. 4, New Ward No. 6, Sarda Mohalla, Deshnoke, Bikaner.

¶132

----Petitioner

¶133

Versus

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Union Of India, Through Additional Commissioner Of

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(7 of 13)

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[2024:RJ-JD:14135-DB]

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[CW-7436/2019]

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Income Tax Central Range-8, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi.

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Deputy Commissioner Of Income Tax, Central Circle-32, Room No. 359, Iii Floor Ara Centre, E-2, Jhandewalan Extension, New Delhi.

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The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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The Income Tax Officer (Tech.), Office Of The Principal Commissioner Of Income Tax, Aayakar Bhawan, Rani Bazar, Bikaner, Rajasthan.

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----Respondents

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For Petitioner(s) : Mr. Nitin Trivedi For Respondent(s) : Mr. K.K. Bissa, AGC

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

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Order

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27/03/2024

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In S.B. Civil Writ Petition No.7436/2019, 1858/2018,

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3087/2018, 3990/2018, 5160/2019, 7393/2019, 7405/2019 & 7408/2019.

¶149

For the sake of convenience and looking into the commonality of the issues raised, the present petitions are being decided, while treating D.B. Civil Writ Petition No.7436/2019 as a lead case:-

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1.1. The reliefs claimed, in sum and substance, read as follows:

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"A. By an appropriate Writ, Order or Direction, Notices dated 3-11-2017 (Annex.7) issued by the respondent no.2 & Order dated 8.12-2017 (Annex.10) passed by the respondent no.1 may kindly be quashed & set aside and accordingly the respondents may kindly be directed

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(8 of 13)

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[2024:RJ-JD:14135-DB]

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[CW-7436/2019]

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to exoneate the petitioners from all the proceedings and further to drop them qua petitioners as has been shown to be initiated in Notices dated 3-11-2017.

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B. That the heavy cost may kindly be imposed upon the Respondents for violating the statutory provisions of the Income Tax Act, 1961.

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C. Any other order or direction, which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, may kindly be passed in favour of the petitioners.

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D. The cost of the writ petition may kindly be awarded in favour of the petitioners."

¶159

As revealed from the above prayer clauses, the petitioner is aggrieved of the impugned transfer orders passed by the respondent Principal Commissioner of Income Tax Department, Bikaner under Section 127 of the Income Tax Act, 1961 ( in short, ‘Act of 1961’ ) and the notices issued in pursuance thereof.

¶160

Learned counsel for the petitioners submits that the impugned transfers have been made without providing any opportunity of hearing to the petitioners, which as per the petitioners, is violative of Section 127 of the Act of 1961. The said Section 127 reads as follows:-

¶161

“ 127 . Power to transfer cases.- (1) The Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether

¶162

(9 of 13)

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[2024:RJ-JD:14135-DB]

¶164

[CW-7436/2019]

¶165

with or without concurrent jurisdiction) also subordinate to him.

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(2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Director General or Chief Commissioner or Commissioner,—

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(a ) where the Directors General or Chief Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Director General or Chief Commissioner or Commissioner from whose jurisdiction the case is to be transferred may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, pass the order;

¶168

(b ) where the Directors General or Chief Commissioners or Commissioners aforesaid are not in agreement, the order transferring the case may, similarly, be passed by the Board or any such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, authorise in this behalf.”

¶169

3.1. In support of such submission, learned counsel placed reliance on (1.) Smt. Jeewan Kumari Vs. Union of India & Ors. reported in (1979) 118 ITR 573 (Raj.), (2.) Noorul Islam Educational Trust Vs. Commissioner of Income Tax reported in (2017) 291 CTR (SC) 230 & (3) Murliwala Agrotech Private Ltd. Vs. Union of India (D.B. Civil Writ Petition No.6847/2021), decided on 20.07.2022 by this Court. 4. On the other hand, learned counsel representing the respondents, while opposing the submission made on behalf of the petitioners, placed reliance on the Division Bench judgment

¶170

(10 of 13)

¶171

[2024:RJ-JD:14135-DB]

¶172

[CW-7436/2019]

¶173

rendered by Hon’ble High Court of Madras in the case of Advantage Strategic Consulting (P.) Ltd. Vs. Principal Commissioner of Income Tax, Chennai reported in [2021] 430 ITR 1 (Madras).

¶174

Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 8. This Court observes that the sole issue raised herein is pertaining to impugned transfers so made without giving any opportunity of being heard to the petitioners. 9. This Court further observes that the controversy raised herein has already been settled by a Division Bench of this Hon’ble Court in the case of Murliwala Agrotech Private Limited (supra) ; the relevant portion whereof reads as under:

¶175

“At the outset, we may state here that Section 127(1) of the Income Tax Act, which deals with powers of the competent authority to transfer the assessment proceedings, is framed with the salutary objective of adherence to the principle of natural justice, which is fundamental to any proceeding of adversarial nature. It cannot be denied that the assessment/ reassessment proceedings under the Income Tax Act, would be adversarial to the assessee and hence, adherence to the principles of natural justice, is sine qua non.

¶176

Whenever it is proposed to transfer the case of assessee from one assessing authority to another, providing opportunity of hearing to the assessee is essential and can be circumvented only if the competent authority feels, for reasons to be recorded in writing, that it is not possible to do so. In the present case, the respondents have neither setup any such case that it was not possible to provide opportunity of hearing to the assessee, nor any reasons to do so were recorded before taking the decision to transfer the case from Circle Bikaner to Circle New Delhi.

¶177

(11 of 13)

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[2024:RJ-JD:14135-DB]

¶179

[CW-7436/2019]

¶180

Notwithstanding the fact that the assessment proceedings under the Income Tax Act, have now become faceless, it cannot be denied that the assessee would be entitled to engage Counsel/ Advisors of his choice to defend himself even in the faceless proceedings and thus, the requirement of following the principles of natural justice cannot be evaded in a casual manner.

¶181

In the case of Advantage Strategic Consulting (P) Ltd. (supra) , relied upon by counsel Mr. Bissa, the factual situation was totally different because transfer had been made from one Circle to another in the same city. Furthermore, during pendency of the proceedings, the assessment order had been passed. In that situation, Hon’ble Division Bench went on to hold that proceedings before the High court, had become infructuous.

¶182

In the present case, the transfer order and the notices issued in furtherance thereof, have been stayed by this Court and as such, the facts of the case at hand are totally distinguishable.

¶183

A Division Bench of this Court in the case of Smt. Jeewan Kumari (supra) , has held that as per Section 127(1) of the Income Tax Act, it was incumbent for the Board to have provided opportunity of hearing to the assessee before ordering transfer of their case. Similar view was taken by Hon’ble the Supreme Court in the case of Noorul Islam Educational Trust (supra).

¶184

Consequently, we are of the opinion that the impugned transfer order dated 21.11.2019 (Annexure-7) and the notices (Annexure-2, Annexure-6 and Annexure12), as a consequence thereof, do not stand to scrutiny and hence, the same are declared invalid and set aside. ”

¶185

This Court had granted the interim order in these matters, which is in operation.

¶186

In light of the aforequoted judgment, the present petitions are allowed in the same terms. Accordingly, impugned notices dated 03.11.2017 and impugned transfer orders dated 08.12.2017

¶187

[2024:RJ-JD:14135-DB]

¶188

[CW-7436/2019]

¶189

(12 of 13)

¶190

(in all the above numbered petitions) along with entire proceeding pursuant thereto are quashed and set aside.

¶191

The respondents are however, permitted to resume the proceedings, in accordance with law, from the stage former to the impugned transfer orders. If it is still proposed to transfer the case of the petitioners, opportunity of hearing shall be provided to them and thereafter, the proceedings shall be continued and concluded, strictly in accordance with law within a period of three months from today.

¶192

In S.B. Civil Writ Petitions No.2066/2020, 3685/2020, 3769/2020, 3827/2020, 4049/2020 & 5836/2020 :-

¶193

As a consequence to the transfer order passed by the respondents themselves, transferring the matters to Deputy / ACIT, Central Circle-14, New Delhi without providing any opportunity of hearing, the authority has proceeded to finally pass the assessment order, which is under challenge in these writ petitions.

¶194

It is informed that each of the assesses were already before this Court by filing aforementioned writ petitions in which the transfer orders were under challenge and thus, the subsequent cause of action gave reasons for the petitioners to file these writ petitions again as the assessment orders were being passed in pursuance of the transfer orders by the authority concerned.

¶195

Since this Court has already granted indulgence against the transfer orders, therefore, for the same reasons as recorded by this Court in Murliwala Agrotech Private Ltd. Vs. Union of India & Ors. (D.B. Civil Writ Petition No.6847/2021) ,

¶196

(13 of 13)

¶197

[2024:RJ-JD:14135-DB]

¶198

[CW-7436/2019]

¶199

decided on 20.07.2022, the present petitions are also allowed in the same terms.

¶200

Consequently, the assessment orders dated 11.12.2019 (CW No.2066/2020), 20.12.2019 & 25.12.2019 (CW No.3685/2020), 20.12.2019 (CW No.3769/2020), 25.12.2019 (CW No.3827/2020), 11.12.2019 (CW No.4049/2020) & 26.12.2019 (CW No.5836/2020) along with entire proceeding pursuant thereto are quashed and set aside and the proceedings shall resume from the stage of former to the transfer orders. If it is still proposed to transfer the case of the petitioners, opportunity of hearing shall be provided to them and thereafter, the proceedings shall be continued and concluded, strictly in accordance with law within a period of three months from today.

¶201

(YOGENDRA KUMAR PUROHIT),J (DR.PUSHPENDRA SINGH BHATI),J

¶202

55 to 68-Sudheer/-

M/S.Vijay Sanjay Tradecom Pvt. Ltd. Andors v. Union of India and Anr.

Case brief

What is this about?

What did the court decide?

M/S.Vijay Sanjay Tradecom Pvt. Ltd. Andors v. Union of India and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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