Sabyasachi Mukharji, J. - (1.) In this application under Article 226 of the Constitution the petitioner challenges an order of transfer of its case from the Income-tax Officer, "A" Ward, Karimganj, to the Income-tax Officer, Central Circle XXXIII, Calcutta. The said order was passed on the 23rd of December, 1972. The challenge is based on three grounds. It was urged, firstly, that no opportunity was given to the petitioner ; secondly, it was submitted that no reason had been recorded for the transfer and, thirdly, it was urged that the impugned order was passed mala fide. Section 127 of the Income-tax Act, 1961, provides as follows : "127. Power to transfer cases.--(1) The 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 any Income-tax Officer or Income-tax Officers subordinate to him to any other Income-tax Officer or Income-tax Officers also subordinate to him and the Board may similarly transfer any case from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers : Provided that nothing in this sub-section shall be deemed to require any such opportunity to be given where the transfer is from any Income-tax Officer or Income-tax Officers to any other Income-tax Officer or Income-tax Officers and the offices of all such Income-tax Officers are situated in the same city, locality or place : Provided further that where any case has been transferred from any Income-tax Officer or Income-tax Officers to two or more Income-tax Officers, the Income-tax Officers to whom the case is so transferred shall have concurrent jurisdiction over the case and shall perform such functions in relation to the said case as the Board or the Commissioner (or any Inspecting Assistant Commissioner authorised by the Commissioner in this behalf) may, by general or special order in writing, specify, for the distribution and allocation of the work to be performed. (2) The transfer of a case under Sub-section (1) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Income-tax Officer or Income-tax Officers from whom the case is transferred. Explanation.--In this section and in Sections 121, 123, 124 and 125 the word 'case', in relation to any person whose name is specified in any order or direction issued thereunder, means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect of any year."
(2.) It was, therefore, necessary for the Board in this case to give, an opportunity to the assessee unless the Board thought that such opportunity was ,not possible, and to record the reasons before passing the impugned order. So far as giving of the opportunity is concerned, the original records were produced before me and from the same I find that the notice was given to the assessee. The said notice was served on the assessee on the 8th of November, 1972, and the original acknowledgment receipt bearing the rubber stamp of the petitioner was produced before me. I am not, therefore, satisfied that such opportunity as contemplated by Section 127 of the Income-tax Act, 1961, was not given to the assessee. What is more, in this case, a letter was written (torn) signed by the principal officer on behalf (torn) assessee dated the 21st of November (torn) to the following effect: JUDGEMENT_470_ITR109_1977Html1.htm
(3.) The original of the said letter was also produced before me. A copy of the said letter was annexed to the affidavit-in-opposition. In answer to this in the affidavit-in-reply a rather complicated story had been set up by the petitioner throwing doubts about the authenticity of the said letter. It is not possible for me in this writ application to go into this question. On the materials produced it appears to me that the notice was given to the petitioner and the petitioner wrote back to say that there was no objection. The objection letter which was sent by registered post and produced before me corroborates that position. The first contention urged in support of this application, therefore, cannot be accepted.;