BANERJEE, J. - (1.) : The petitioner, Vyapar Mandal Ltd., is a public limited company, having its registered office at No. 47, Khengraputty Street, in the town of Calcutta. For the asst. yrs. 1954-55 to 1961-62, the ITO, "J" Ward, Companies District III, Calcutta, ordinarily having jurisdiction over the petitioner- company, dealt with the assessment cases of the petitioner-company, found that the petitioner- company had suffered losses and further found that no tax was payable by it for those years. While the assessment proceedings against the petitioner-company for the asst. yr. 1962-63 was still pending before the ITO, "I" Ward, Companies District III, Calcutta, the respondent, CIT, made an order dt. 3rd Jan., 1963, in exercise of his power under s. 127(1) of the IT Act, 1961, transferring the case of the petitioner to the ITO "E" Ward, Companies District III, Calcutta. The material portion of the order is set out herein below : " In exercise of the powers conferred by sub-s. (1) of s. 127 of the IT Act, 1961 (43 of 1961), the CIT, West Bengal, hereby transfers the case, the particulars of which are mentioned in column 2 of the Schedule hereto annexed, from the ITO mentioned in column 3 to the ITO mentioned in column 4 thereof. SCHEDULE
(2.) THE purport of the order was communicated to the petitioner by the ITO, "J" Ward, by a letter dt. 24th Jan., 1963. THE petitioner thereupon wrote a letter to the respondent-CIT on 29th Jan., 1963, objecting to the transfer in the following language: "This is a surprise for us and we fell highly aggrieved as the said transfer has been made without affording any opportunity to us of being heard before the said order was made. We do not known the reason for such transfer. We hope we would get proper justice in the matter and, therefore, request your Honour not to implement the said order." Not having received any reply to the letter, the petitioner-company again wrote to the respondent- CIT on 14th Feb., 1963, praying that the order be not made effective. On 23rd Feb., 1963, the respondent-CIT replied to the letters of the petitioner in the following language: "With reference to your petition dt. 29th Jan., 1963, and 14th Feb. 1963, I am to inform you that the transfer of your case from 'J' Ward, Companies District III, to 'E' Ward, Companies District III, was made for administrative convenience....." Aggrieved by the order of transfer and the unwillingness of the respondent-CIT to recall the same, the petitioner moved this Court under Art. 226 of the Constitution, praying for a writ of certiorari for the quashing of the order of transfer dt. 3rd Jan., 1963, and for a mandate upon the respondent-CIT directing him to recall the order and obtained this rule. Sec. 127(1) of the IT Act, 1961, which is of relevant consideration in this contest, is couched in the following language : "The CIT 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 ITO subordinate to him to another also subordinate to him, and the Board may similarly transfer any case from one ITO to another : Provided that nothing in this sub-section shall be deemed to require any such opportunity to be given where the transfer is from one ITO to another whose offices are situate in the same city, locality or place." Mr. T.K. Bose, learned advocate for the petitioner, argued a short point in support of the rule. He argued that regard being had to the language of the proviso to s. 127(1) and also to the fact GIR No. Name of assessee From Income- tax Officer To Income-tax Officer (1) (2) (3) (4) C- III/V/36/J Vyapar Mandal Limited, 47, Khengraputty Street, Calcutta ITO, 'J' Ward, Companies Dist. III, Calcutta. ITO, 'E' Ward, Companies Dist. III, Calcutta." that the transfer of the petitioner's case was made from one ITO to another ITO, having their offices in the same City of Calcutta, it was not necessary for the respondent-CIT to give to the assessee-petitioner an opportunity of being heard against the proposal of transfer of the case, but it was nevertheless incumbent upon the respondent-CIT to record his reasons for the transfer under the main part of s. 127(1), which he did not do and which he did not inform to the petitioner. That, he submitted, made the order bad.
(3.) THE effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it. THErefore, when transfer of a case from one ITO to another ITO in the same city is made, that relieve the CIT from hearing the assessee, whose case he proposes to transfer, under the provisions contained in the proviso, but nothing contained in the proviso relieves his of the duty of recording his reasons for the transfer under the main part of s. 127(1). I have, therefore, to see whether the respondent-CIT at all recorded his reasons. The respondent-CIT claims that he did do so. In para 8 of the affidavit-in-opposition it is stated: "I state that the reasons for the transfer have been properly recorded by the respondent No. 1 as required by the IT Act under s. 127(1)". It further appears from the respondent-CIT's letter to the petitioner dt. 23rd Feb., 1963, that the reason given for the transfer was "administrative convenience". Pursuant to my request, Mr. Sabyasachi Mukherjee, learned advocate for the respondent-CIT, produced before me the records which contained the reasons for the transfer. I cannot, therefore, uphold the contention of Mr. Bose that the reasons were not recorded.;