SOUMITRA PAL,J. - (1.) THESE two writ petitions were filed by the petitioners challenging the show -cause notices and the orders of transfer passed under Section 127 of the Income -tax Act, 1961 (for short 'the Act'). Since admittedly identical issues are involved, the petitions were heard analogously. However, for the sake of convenience facts in W.P. No. 1920, Sahara India Commercial Corporation Ltd. v. CIT are referred to in this judgment.
(2.) THE writ petition having W.P. No. 1920 of 2005 was filed by Sahara India Commercial Corporation Ltd. a public limited company within the meaning of the Companies Act, 1956 having its registered office at Kolkata challenging the legality and/or validity of a show -cause notice dated 30 -6 -2005 issued under Section 127(2) of the Act intimating the proposal for transfer of the case of the petitioner from Kolkata to New Delhi and the order dated 9 -8 -2005 passed by the respondent No. 1 transferring the case of the petitioner from Deputy Commissioner of Income -tax, Circle B, Kolkata, respondent No. 2 to Deputy Commissioner of Income -tax, Central Circle 6, New Delhi and Assistant Commissioner of Income -tax, Central Circle 6, New Delhi, respondent Nos. 3 and 4 respectively. The matter was moved on 5 -10 -2005, when an order was passed, the relevant portion of which is as under: The petitioner herein has challenged the validity and/or legality of the Order No. 7/2005 -06, dated 9 -8 -2005 issued by the Commissioner of Income -tax, Kolkata -III, regarding Centralization of 'SAHARA' Group of Cases on the ground that the respondents herein did not consider that the principal place of business of the petitioner is at Lucknow and the petitioner along with other assessees of Sahara Group are assessed to income -tax at Lucknow. Mr. Bajoria, learned Sr. Counsel appearing on behalf of the petitioner also referred to and relied upon the interim order already passed by the Division Bench of the Allahabad High Court, Lucknow Bench at Lucknow under similar circumstances. Having heard the learned Counsel appearing for the parties and considering the facts and circumstances of this case and also considering the earlier order passed by the Division Bench of the Allahabad High Court, Lucknow Bench under similar circumstances at the instance of the other petitioners of the Sahara Group, I am of the opinion that a strong prima facie case has been made out for granting an interim order in this matter. I am also of the opinion that the issues raised in this petition should be decided finally at an early date after granting an opportunity of filing affidavits to the parties. Accordingly, the respondents are granted liberty to file their Affidavit -in -Opposition within 2 weeks after the long Puja Vacation; Affidavit -in -Reply, if any, thereto be filed within 2 weeks thereafter and let this matter be listed for hearing after filing of affidavits by the parties. Let there also be an interim order restraining the respondents from giving any effect and/or further effect to and/or acting on the basis of and/or in furtherance of the impugned order dated 9 -8 -2005 being Annexure 'P -6' to this writ petition until further orders. The respondents are also restrained from taking any step or further steps on the basis of and/or in pursuance of the impugned notice dated September 14, 2005 issued by the respondent No. 4 until further orders being Annexure 'P -4' (collectively) to this writ application until further orders.' [Emphasis supplied] During the pendency of the writ petition an application being G.A. 604 of 2008 in W.P. 1920 of 2005 was filed on behalf of the Revenue praying for recalling and/or vacating the interim order passed on 5 -10 -2005 wherefrom it appears that the writ petitions filed by the Sahara Group of Companies before the Allahabad High Court, Lucknow Bench, which have been referred to in the interim orders dated 5 -10 -2005 have been finally decided by the judgment and order dated 8 -2 -2006 whereby those petitions have been dismissed. The said judgment has since been reported in Sahara Airlines Ltd. v. Director General of Income -tax (Investigation) : [2006]286ITR33(All) . It appears from the said application that from the said judgment a batch of Special Leave Petitions before the Supreme Court of India was preferred by the Sahara Group of Companies which too by order dated 3 -3 -2006 was dismissed. The order passed by the Apex Court is as under: Heard learned Counsel for the petitioners. No merits. The special leave petitions are dismissed.
(3.) LEARNED Senior Advocate appearing for the petitioner reiterating the statements in the writ petition submitted that the company is incorporated in Kolkata and the dispute is regarding transfer of file to New Delhi. In the matter decided by the Lucknow Bench of the Allahabad High Court in Sahara Airlines Ltd. 's case (supra) the question was whether assessment would be at Lucknow or at New Delhi and it has been held that it would be in New Delhi for investigation and assessment. In the instant case request was never made by the petitioner for transfer of its case either to New Delhi or to Lucknow. Nor such proposal was made earlier by the revenue. In or about 1996 an application for transfer of certain cases from Lucknow to New Delhi was filed because at that time the management of Sahara Group was contemplating to shift of its original place of business to New Delhi. On 20 -11 -1996 the Central Board of Direct Taxes (for short 'the Board') passed an order transferring certain cases to New Delhi with effect from 9 -12 -1996. On 9 -12 -1996 the Board modified its order and made it effective from 1 -5 -1997. However, since the Income -tax Department found it difficult to transfer the cases to New Delhi, the assessees concerned gave no objection for being continued to be assessed at Lucknow. In such circumstances, the Board by an order dated 29 -4 -1997 cancelled its order dated 20 -11 -1996 and the proposal to transfer the cases from Lucknow to New Delhi was dropped. In the case in hand, though there are no allegations of tax evasion, since the petitioner is having transactions with other companies, files are sought to be transferred to New Delhi on the ground of interlacing and interconnection of funds and of business activities. Moreover, the order impugned does not deal with the inconveniences highlighted in the reply dated 19 -7 -2005. Reliance was placed on the judgments in Dwarka Prosad Agarwalla Director of Inspection : [1982]137ITR456(Cal) ; Y. Moideen Kunhi and Co. v. ITO : [1993]204ITR29(KAR) ; Jharkhand Mukti Morcha v. CIT : [1997]225ITR284(Patna) , Power Controls v. CIT : [2000]241ITR807(Delhi) and Lords Distillery Ltd. v. CIT : [2007]294ITR147(Cal) in support of his submission. Submission was, though in the judgment in Sahara Airlines Ltd. 's case (supra) the petitioner has been referred to, since facts are different, said judgment is not applicable. Further, the judgment by the Allahabad High Court was on the basis of concession on behalf of the petitioner. Referring to the judgment of the Apex Court in Kunhayammed v. State of Kerala : [2000]245ITR360(SC) , it was contended that as the Apex Court while dismissing the Special Leave Petition did not give reasons, it is not a declaration under Article 141 of the Constitution of India.;