Chhattisgarh H.C : Assessment case can be transferred for co-ordinated investigation

High Court Of Chhattisgarh

CIT, Raipur vs. Union Of India

Section : 127

Yatindra Singh, Cj. And Pritinker Diwaker, J.

Writ Appeal Nos. 27 To 40 Of 2013

March  14, 2013

JUDGMENT

1. These writ appeals are against the order of the single judge dated 09.10.2012, quashing transfer of search assessment proceeding of the Assessees to the Assistant Commissioner of Income Tax, Central Circle-1 Visakhapatnam (the ACIT-Visakhapatnam) under sub-section (2) of Section 127(2) {127 (2)} of the Income Tax Act, 1961 (the Act).

THE FACTS

2. A search was conducted in the premises of M/s Maa Mahamaya Group of Companies (the Mahamaya group), as well as residential and official premises of its directors, partners, and employees on 19.08.2011 at different places, namely at Dhamtari, Visakhapatnam and Kolkata. It was at the instance of the Director of Investigation, Hyderabad (the DIT, Hyderabad).

3. In the present batch of writ appeals, the assessment of the Assessees are being done at Dhamtari and Raipur in the State of Chhattisgarh. A suggestion, in form of a letter dated 27.12.2011, was received by the Commissioner, Income Tax, Raipur from the Commissioner of Income Tax, Hyderabad for centralisation of cases for post search and seizure operations for the co-ordinated investigation with the ACIT-Visakhapatnam.

4. Later, a show-cause notice was issued on 18.01.2012 to the Assessees asking them to show cause against the transfer. The Assessees filed their objections.

5. After considering the objections, initially, five cases were transferred on 02.04.2012. Thereafter, a further suggestion was received for re-considering nine other cases for centralisation for co-ordinated investigation. Another order was passed on 31.05.2012, centralising those cases as well.

6. The Assessees in the aforesaid cases, filed different writ petitions. These petitions were consolidated and were allowed by the single judge on 09.10.2012, basically on the ground that the word ‘co-ordinated investigation’ was vague and no opportunity can be said to have been given to the Assessees. Hence, the present writ appeals by Income Tax Department (the Department).

POINTS FOR DETERMINATION

7. We have heard counsel for the parties. The following two points arise for determination in the case:

(i) Whether the present appeals are maintainable;

(ii) In case the answer to the aforesaid question is in affirmative, then whether the transfer orders are invalid.

1st POINT: TRANSFER ORDER IS ADMINISTRATIVE ORDER

8. The counsel for the Assessees placed reliance on WA No. 1006 of 2012 SKS Ispat v. Union of India decided on 12.12.2012 (the SKS-Ispat case) and submits that:

♦ The transfer order under Section 127(2) of the Act is a quasi-judicial order as it has to indicate the reasons and it cannot be passed unless a reasonable opportunity is given to the Assessees;

♦ The writ petitions were filed for quashing of the quasi judicial orders and they have been quashed by the single judge;

♦ The order passed by the single judge was under Article 227 and no writ appeal is maintainable against the order of the single judge under section 2(1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006 (the 2006-Act).

9. In order to decide this point, it is necessary to decide whether the impugned orders of transfer were quasi-judicial orders or not.

10. In AK Kraipak v. Union of India AIR 1970 SC 150 (the AK-Kraipak case) (paragraph 13), the Supreme Court observed that the dividing line between an administrative power and a quasi-judicial power was thin. And in order to determine the nature of power, the point to consider is-the nature of the power, to whom it was conferred, the framework of the law conferring that power, the consequences from the exercise of that power, and the manner in which that power was expected to be exercised.

11. In the AK-Kraipak case (supra) the Supreme Court did not decide the question, whether the power of selection/ appointment was administrative or judicial but went on to say that the principles of natural justice were nothing but to ensure fairness and were applicable to the administrative proceedings as well.

12. Section 127(2) of the Act provides that transfer can only be done if opportunity is afforded to an assessee and after recording reasons. But merely for this reason it cannot be said to be quasi judicial in nature.

13. A transfer order has civil consequences; especially when the cases are transferred from one city to another. Even if there was no such statutory provision, the transfer, beyond a city could not be effected unless an opportunity was given and was for relevant considerations. This was required to be done to ensure fairness. The fact that there is a statutory provision, does not by itself, make the function to be a judicial. It is not conclusive of this fact.

14. The transfer order does not decide the rights of the parties in the assessment. The ultimate order deciding the right is the order of the assessment; it decides the basis and the tax to be paid: this order is a judicial order. The transfer order is merely for administrative reason and it cannot be said that nature of power is judicial.

15. In Kashiram Aggarwalla v. Union of India [1965] 56 ITR 14 (SC) (the Kashiram case), the transfer order was under 127(1) of the Act; unlike the present cases, where the transfer orders are under Section 127 (2) of the Act. The question involved was, whether the transfer order in that case was invalid as no reasons were recorded.

16. In the Kashiram case (supra) the Supreme Court held that the mandatory requirement of recording reasons was not to be applicable, as the transfer orders were in the same city and only wards were changed but the Court did observe about the nature of transfer orders under section 127.

17. The Supreme Court, in the Kashiram case, observed that transfers are made on grounds of administrative convenience and are in nature of administrative order.

18. Similar views were expressed by a division bench of the Gujrat High Court in Arti Ship Breaking v. DIT [2000] 244 ITR 333/110 Taxman 457 where transfer order was upheld though reasons were not indicated on the ground that transfer was on administrative reasons.

19. In this case, a search was held at different places and documents were seized. It is necessary to see them together before passing the order of assessment. The transfer order is for administrative convenience for making co-ordinated investigation. The authority is exercising administrative and not judicial power. The judicial power is to be exercised after co-ordinated investigation, while passing search assessment orders.

20. In our opinion, the authority while passing the transfer orders, did not exercise judicial power. It is an administrative order and not a quasi judicial order. The SKS-Ispat case is not applicable.

21. It is not disputed that in case the order was not a quasi judicial, then the writ appeal would be maintainable. We have already held that power to transfer the assessment cases is not a quasi judicial in nature; no judicial power is exercised: the writ appeal is maintainable.

2nd POINT:TRANSFER ORDER IS EQUATED

22. The counsel for the Assessees placed reliance on decisions (see below)1 and submits that:

(i) The order of transfer is not in consonance which the notice given to the Assessee;

(ii) No opportunity was given about the reasons mentioned in the transfer order;

(iii) The word ‘co-ordinate investigation’ is vague; and

(iv) The single judge has rightly quashed the transfer orders.

Ist and IInd Submissions: Reason indicated in the Notice

23. We have seen the notice issued to the Assessees. Apart from others, it states that transfer is required for centralisation of cases for co-ordinated investigation. Ultimately the transfer orders were passed for this reason namely, co-ordinated investigation of the cases.

24. The notice was given indicating the reason as centralisation for co-ordinated investigation and it is for this reason that the transfer orders were passed. The fact that in the order, the words co-ordinated investigation was further explained neither vitiates the transfer orders nor can it be said that no notice was given. The reasons were indicated in the notice and the Assessees had opportunity to reply the same.

25. In our opinion,

♦ It cannot be said that no reasons were communicated or order was without any opportunity;

♦ The first two submissions have no merit.

Let us consider if the words ‘co-ordinated investigation’ are vague or not.

IIIrd and IVth Submissions: Coordinated Investigation-Not Vague

26. It is not disputed that the search took place in the premises of Mahamaya group of companies, as well as residential and official premises of its directors and its employees. It was at different places at Dhamtari, Visakhapatnam, and Kolkata: where incriminating documents were seized.

27. The documents are inter-connected and affect the assessment of the parties. It is necessary to see their effect together on the assessments. It can only be done after analysing and investigating the documents found at different places together and not separately at different places: a co-ordinated investigation is necessary.

28. The word ‘co-ordinated’ means harmonious in action. As documents have been seized at different places, it is necessary that all the cases should be considered together at one place so that harmonious investigation be undertaken to arrive at just assessment. The words ‘co-ordinated investigation’ of the case is not vague.

Cases holding ‘Coordinated Investigation’ not vague

29. We would like to point out that transfer orders for co-ordinated investigation or transfer orders using similar words have been upheld by almost all High Courts in the country, namely,

♦ The Allahabad High Court in Radico Khaitan Ltd., v. CIT [2007] 292 ITR 507/158 Taxman 99 and Bhatia Minerals v. CIT [1993] 200 ITR 591/[1992] 63 Taxman 173

♦ The Calcutta High Court in Sahara India Commercial Corpn. Ltd. v. CIT [2009] 310 ITR 372/178 Taxman 269.

♦ The Delhi High Court in ATS Infrastructure Ltd. v. CIT [2009] 318 ITR 399/183 Taxman 486 paragraph 11);

♦ The Gauhati High Court in Rathi & Co. v. Union of India [2004] 267 ITR 295/137 Taxman 300 (Gauhati) (paragraph 17 to 19);

♦ The Patna High Court in Jharkhand Mukti Morcha v. CIT [1997] 225 ITR 284/95 Taxman 132

♦ The Punjab & Haryana High Court in Charan Pal Singh v. CIT [2008] 307 ITR 132.

Let us consider the relevant cases cited by the counsel for the Assessees.

Relevant Decisions cited by the counsel for the Assessees

30. Most of the cases relied upon by the counsel for the Assessees are not applicable on the facts of the cases in hand. A gist of the cases cited is as follows:

♦ In Vinay Kumar Jaiswal’s case (supra), the transfer order was set aside as no opportunity was afforded to the assessee. This is not a case here. In the cases before us, the order has been passed after affording opportunity to the Assessees;

♦ In V.K. Steel Industries (P.) Ltd.’s case (supra); M.K. Industries’ case (supra); P.K. Pehuja’s case (supra); Bansal Sharevests Services Ltd.’s case (supra), the transfer orders were set aside as either the reasons were not communicated, or they were not indicated or recorded. This is not a case here. In the cases before us, reasons have been indicated and communicated to the Assessees;

♦ In R.K. Agrawal’s case (supra), the transfer order was set aside as the objection of the assessee was that he was not connected with the group involved there was not dealt. This is not a case here. Here, admittedly the Assessees are either Mahamaya Group of companies or their directors or their employees; there was also no such objection.

31. The Andhra Pradesh (AP) High Court and Madhya Pradesh (MP) High Court have taken a contrary view that the words ‘co-ordinated investigation’ are not vague. These cases are as follows:

♦ The AP High Court in Vijayasanthi Investments (P.) Ltd.’s case (supra) and in Saptagiri Enterprises’ case (supra);

♦ The MP High Court in Sagarmal Spg. & Wvg. Mills Ltd.’s case (supra) and Shivjirao’s case (supra).

32. The basis of the aforesaid four cases of the AP and MP High Court is the Sagarmal case decided by the MP High Court . This is clear from the following clarification:

♦ The Saptagiri case was decided by the AP High Court on the basis of the Vijayasanthi case, which was decided on the basis of the Shivajirao case and the Sagarmal case;

♦ The Shivjirao case was decided by the MP High Court on the basis of the earlier decision in the Sagarmal case.

33. In the Vijayasanthi and Saptagiri cases that were decided by the AP High Court as well as the Shivjirao case decided by the MP High Court, the transfer orders were for co-ordinated investigation. It was set aside basically on the reasoning given in the Sagarmal case. Let us consider,

♦ What the Sagarmal case was about; and

♦ Whether the law laid down by it was the correct law or not; and

♦ Could it be the basis for holding that the words ‘co-ordinated investigation’ are vague and setting aside the transfer orders.

The Sagarmal Case

34. In the Sagarmal case, the transfer was sought from Indore to Bombay for ‘facility of investigation’ and not for ‘co-ordinated investigation’. It was not a case of search, where documents were seized at different places and it was necessary to consider the documents together to arrive at a just conclusion. It is for this reason that MP High Court had held the words ‘facility of transfer’ to be vague and the transfer order was set aside. But this was not the fact in the other cases.

35. The reason of transfer in the Sagarmal case was ‘facility of investigation’ and not ‘centralisation’ for ‘co-ordinated investigation’ in a search case. The facts of the Sagarmal case and the reasons were different. It cannot be made applicable to the cases.

♦ Where search takes place and documents are seized affecting assessment at other places;

♦ Where the effect of seized documents is to be seen together or transfer is for centralisation for coordinated investigation.

36. With due respects to the Judges in the Vijayasanthi, Saptagiri, and Shivjirao cases-the Sagarmal case could not be relied upon to decide those cases; it was not applicable. We differ from the views taken by them and prefer not to apply the Sagarmal case to the case in hand.

37. It will not be out of place to mention that the MP High Court has itself distinguished the Sagarmal case (supra) in Maheshwari Lime Works v. CIT [1984] 147 ITR 804/[1985] 21 Taxman 214 (the Maheshwari case). Unfortunately, the MP High Court in the Shivjirao case and the AP High court in the Vijayasanthi case as well as the Saptagiri case, neither saw difference in facts of the cases and the Sagarmal case, nor noticed the Maheshwari case, where the MP High Court itself had distinguished the Sagarmal case.

38. In any case, the aforesaid four cases decided by the AP and MP High Courts are merely persuasive and are not binding on us. We prefer to be in the company of rest of the High courts as mentioned under heading “Cases holding ‘co-ordinated investigation’-not vague”

39. In our opinion,

♦ The facts of the Sagarmal case were different; its ratio cannot be made applicable in the present case;

♦ The AP High Court and MP High Court in the Vijaysanthi, Saptagiri and Shivjirao cases applied the Sagarmal case without considering the difference as well as the Maheshwari case that had distinguished the case. It will not be proper to rely upon them.

No Prejudice

40. Writ jurisdiction under article 226 is discretionary. While exercising writ jurisdiction, it is also a relevant consideration, whether any prejudice has been caused or not. Let us consider this aspect also.

41. We would like to mention here that the main factory of the flagship company of Mahamaya group is situate at Visakhapatnam. They not only have their offices and residences there but also guest house. There is no inconvenience to them.

42. The search took place at three different places at Dhamtari, Visakhapatnam and Kolkata. The interconnected documents were found at these places. They have to be looked together in order to reach just assessment and cases of two places have to be transferred to third place. As the cases are at three places, the cases of two places have to be transferred at third place for centralisation.

43. The Department has transferred the cases to Visakhapatnam as-the main factory of flagship company was situate there; most of documents were seized there; and it was under the DIT-Hyderabad, under whose supervision, the search took place.

44. In the transfer order, it is also mentioned that after search, assessment orders the assessee could seek de-centralisation ie-after the search assessment order is passed, they could seek de-centralisation and the further appeals may be filed in the same way as they were filed earlier. There is no prejudice to them.

Menace of Black Money

45. It is said that in our country, there is more black money than white: the black money market is as big if not bigger than white money. If efforts are made to unearth it, then court should not gag it, unless the action runs fouls of the statutory provision.

46. In the present case, the statutory provision is that transfer can be made for reasons recorded and after affording opportunity. This has been done in the present case. There is no statutory violation.

47. In our opinion,

♦ The reason for transfer was given in the notice;

♦ The Assesses had reasonable opportunity;

♦ The words ‘co-ordinated investigation’ are not vague;

♦ The transfer orders transferring the cases to the ACIT-Visakhapatnam are valid.

SOME OBSERVATIONS

48. The submissions and points raised by a party should be considered before arriving at a decision. But more often than not, there is insistence to deal with every case that is cited. Perhaps, such insistence-even if the decisions are inapplicable or irrelevant-is misplaced. It may not be proper to record in the judgement that a counsel has cited irrelevant, or inapplicable, or overruled, or already distinguished case.

49. We would just like to point out some observations by a prominent lawyer Shri Fali S Nariman in his book ‘India’s legal system: Can it be saved?’ At page 144, he observes:

‘We are overburdened with excessive case law and this is positively on the deficit side in our quest for the administration of speedy justice.

In a case law-oriented system like ours, if law is to be meaningful and to be easily understood, judges must find more time to write more briefly, more precisely.’

50. In the book, Shri Nariman had also explained (at page 143-144) about place of Restatement of the law in the US and regretted that it was not applicable in our country. He writes,

‘In the United States, these ‘fact-cases’ are likened to railroad-tickets: ‘valid for single journey only’. The Americans are not greatly enamoured (as we or the British are) about precedent, and every ten or fifteen years they appoint a body of very learned and wise lawyers, who go into the hundreds of cases reported in all the decisions across the United States and then come up with what is called a ‘restatement’ of the law on every possible topic. After the restatement, no case can be cited of a period prior to the restatement, and a large body of useless case law gets confined to the dustbin of legal history.’

51. It is heartening to note that the Indian Law Institute has undertaken the project for ‘Restatement of Indian Law’. In the preface to the books already printed, Justice RV Raveendran explains its purpose:

‘A Restatement of Indian Law is neither a commentary nor a catalogue of case-law. It is not opinion-based. It is intended to be an authoritative neutral statement of the law on the subject. The objects of a restatement are to state the current law of the land by considering the relevant constitutional/statutory provisions and judicial pronouncements, to identify and remove uncertainties and ambiguities surrounding the legal principles, and to clarify and simplify the law for its better adaptation to the needs of the society …

It is intended to benefit the members of the Bar, Bench, Academia, Civil Servants and general public. A certain amount of uniformity and neutrality is sought to be achieved by ensuring that the restatement is restricted to statutory provisions, well settled legal principles and the authoritative pronouncement of the Supreme Court.’

52. Perhaps, it will be real help to our jurisprudence if we also adopt an approach similar to the US, about ‘Restatement of Indian law’.

CONCLUSIONS

53. Our conclusions are as follows:

(a) The power of transfer under Section 127(2) of the Income Tax Act, 1961 is not a judicial power;

(b) The writ appeal is maintainable against the order of the Single Judge quashing the order passed under Section 127 of the Act;

(c) The notice had indicated the reason for transfer as ‘centralisation’ for ‘co-ordinated investigation’. It is for this reason that order for transfer were made. There was no denial of reasonable opportunity to the Assesses;

(d) The word ‘co-ordinated investigation’ is not vague. It has a definite meaning and the transfer order can not be set aside merely on the ground that the transfer has been done on vague terms.

In view of our conclusions, the writ appeals are allowed and the writ petitions filed by the Assessees are dismissed.

[Citation : 358 ITR 341]