SOUMITRA PAL,J. - (1.) THIS writ application was filed by Anand Kumar Arya and Sudarshan Kumar Arya, stated to be working as partners of M/s. Economic Transport Organization (in short 'ETO') a registered partnership firm, challenging an order dated January 19, 2007, passed under Section 127 of the Income -tax Act, 1961 (in short, 'the Act'), by the Commissioner of Income -tax, Kolkata, XIII, Kolkata, respondent No. 1.
(2.) THE writ petition was moved on May 3, 2007, when an interim order was passed restraining the respondents from transferring the file. Subsequently, directions were issued for filing of affidavits. Affidavits have since been exchanged and are on record. It may be noted that during the pendency of the writ petition, on June 27, 2007, the interim order lapsed. Mr. Sen, learned advocate appearing on behalf of the petitioner, reiterating the statements in the writ petition has submitted that the transfer has been sought to be effected without issuing any notice and without giving an opportunity of hearing as postulated under Section 127 of the Act. Though representations objecting to such transfer were furnished on February 1, 2007, and on April 9, 2007, those were not considered. Since the order of transfer is vague as it merely states that it is for administrative convenience, the impugned order is bad. Moreover, since it appears from annexure A to the application being G. A. No. 507 of 2009 that the ETO is still assessed at Kolkata, the entire action of transfer of the files of the petitioners who are the partners of ETO is bad in law. With regard to the allegation in paragraph 2(c) of the affidavit -in -opposition, it has been submitted with reference to paragraph 4 of the affidavit -in -reply that since the residence of Sudarshan Kumar Arya, petitioner No. 2, was not searched, the allegation is incorrect. Reliance has been placed on the judgment in W.P. No. 1657 of 2006, Kumar Kumar and Brothers v. Union of India reported in [2007] 290 ITR 310 (Cal) : [2007] 1 CHN 877 in support of his submission.
(3.) MR . Mukherjee, learned advocate appearing on behalf of the respondents, supporting the order dated January 19, 2007, has submitted that a search was conducted in one of the organisations in Mumbai. After search, in exercise of the powers conferred by the notification issued by the Central Board of Direct Taxes, New Delhi, regarding centralisation of search cases, appearing at page 31 of the affidavit -in -opposition, the files of the petitioners were transferred. By the said notification an exception has been carved out and since centralisation has been made in Central charge and respondent No. 1 was under an obligation, since no useful purpose would have been served by giving an opportunity of hearing, compliance with the formalities under Section 127 of the Act was dispensed with. The submission is since files have been transferred to Mumbai, the petitioners are at liberty to apply before the authorities at Mumbai for retransfer of the files from Mumbai to Kolkata. The submission has been made that since interim order lapsed and transfer has already been effected, no order may be passed. In this regard, reliance has been placed on paragraphs 7, 8, 9 and 10 of the judgment of the hon'ble apex court in Trilokchand Motichand v. H.B. Munshi, CST reported in : [1970] 25 STC 289 (SC) : AIR 1970 SC 898 in support of his submissions.;