Harish Tandon, J. - (1.) THE Court: This matter is moved in the Vacation Bench citing the urgency. In this writ petition the assessee/petitioner is challenging the order dated 15th November, 2014 passed by the Commissioner of Income Tax, Kolkata - I, the respondent No. 2 herein by which all the cases relating to the petitioner was transferred to New Delhi under Section 127 of the Income Tax Act, 1961. According to Mr. Poddar learned Senior Advocate for the petitioner the said order is invalid, illegal and suffers from incurable defects inasmuch as the same is passed in gross violation of the principles of natural justice and have been subsequently created and/or brought in existence in order to fill up the lacunae of a subsequent assessment orders passed by the jurisdictional Commissioner at New Delhi. He vehemently submits that no notice before initiation of the said proceeding was served upon his client and, therefore, no opportunity of hearing was given which offends Section 127(ii)(a) of the said Act. He further developed his argument by saying that if an order under Section 127 of the said Act is not communicated to the assessee, it renders the said order invalid and placed reliance upon the judgment of the Apex Court in case of Ajantha Industries versus CBDT reported in : [1976] 102 ITR 281. By referring the decision of the Delhi High Court rendered in case of Smt. Sarita Jain versus Commissioner of Income Tax and Ors. reported in : [2003] 261 ITR 499, Mr. Poddar would submit that the principles laid down by the Supreme Court in case of Ajantha Industries (Supra) is applied and accepted in toto. He further submits that if the postal articles have returned with the postal remarks 'not found', the same cannot be treated as a good service and, therefore, any order passed on the basis of the said notice is liable to fall. To buttress the aforesaid submission the reliance is placed upon the judgment of the Supreme Court in case of Union of India & Ors Versus Dinanath Shantaram Karekar & Ors. reported in : AIR 1998 Supreme Court 2722. He further submits that if the postal articles have returned with the remarks 'not known, it does not raise any presumption and even if the presumption can be raised, the same is rebuttable one which can be successfully proved from the fact that subsequent letters issued by the Commissioner at Kolkata does not contain any averments and/or statements pertaining to the order passed under Section 127 of the said Act and, therefore, it is inconceivable and improbable that the notice issued under the aforesaid provision has returned with the remarks 'not known' whereas the other notices have been duly received and served upon the assessee/petitioner.
(2.) THE learned Advocate for the respondent authorities submits that before passing a final order under Section 127 of the said Act, a notice was sent to the assessee/petitioner through a postal department and returned with the postal remarks 'not known'. He further submits that the petitioner was all along aware of the initiation of a proceeding under the said provision and, therefore, the story of non -service of notice is concocted for the purpose of securing the interim order. He, however, says that the respondent should be afforded an opportunity to place all the materials in this regard and matter may be finally decided after exchange of affidavits. Before proceeding to address the issues involved in this writ petition for the limited purpose of passing the interim order, this Court must record that Section 127 of the Income Tax Act bestowed power on the authorities mentioned therein to transfer any case from one Assessing Officer to another provided a reasonable opportunity of hearing is given to the assessee. Therefore, it cannot be said that the authority which passed the order lacks jurisdiction and, the order per se is a nullity. The attack is made on two fold grounds firstly that there was no opportunity of hearing given to the assessee/petitioner before passing the final order and secondly, the subsequent letters issued on 7th January, 2015 and 20th February, 2015 does not reveal the order of transfer which necessarily implies that the impugned order dated 15th November, 2014 was passed subsequent thereto.
(3.) IT is no longer res integra that any order which is passed in gross violation of the principles of natural justice cannot with stand on a legal parameters. Furthermore, Clause (a) of Sub -section (2) of Section 127 of the said Act further provides a reasonable opportunity of hearing and recording of reasons which cannot be said to be a casual exercise or ideal formalities. An opportunity of hearing is one of the facets enshrined under the Constitution provided the assessee/petitioner suffers prejudice for non -compliance thereof. Unless the prejudice is shown to have caused to the person, mere non -compliance of the principles of natural justice, does not invalidate the action of the authorities. It is no doubt true that the Commissioner assumes jurisdiction under the statute and, therefore, cannot travel beyond it. The jurisdictional Commissioner at New Delhi is empowered to proceed with the case on the basis of an order passed under Section 127 of the said Act and not otherwise. Though feebly, Mr. Poddar tried to impress this Court that an assessment order has been passed by the jurisdiction Commissioner at New Delhi without affording an opportunity and without having communicated to the petitioner the impugned order dated 15th November, 2014 but this Court is not impressed by such submission as the order which is passed by an authority, whose situs is, beyond the territorial jurisdiction of this High Court, on the basis of the records having transmitted and/or transferred in pursuance of the impugned order, the writ petition cannot be entertained treating that the miniscule part of the cause of action arose within the territorial jurisdiction of this Court.;