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2013 DIGILAW 53 (GAU)

Continental Milkose (India) Ltd. v. Commissioner of Income Tax

2013-01-30

A.K.GOSWAMI, ADARSH KUMAR GOEL

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JUDGMENT Adarsh Kumar Goel, C.J. 1. This petition seeks quashing of the order dated December 20, 2012, passed by the Commissioner of Income-tax, Dibrugarh, under section 127(2)(a) of the Income-tax Act, 1961, transferring the cases of assessment of the petitioner from Dibrugarh to New Delhi for effective co-ordinated investigation and administrative convenience. According to the impugned order, a search and seizure operation was carried out in Continental Milkose (India) group on March 9, 2012, at New Delhi and, thereafter, notice dated August 30, 2012, was issued by the Commissioner of Income-tax, Dibrugarh, requiring the managing director of M/s. Continental Milkose (India) Ltd. giving an opportunity against the proposed transfer of assessment cases to, New Delhi. The said company submitted its reply dated October 30, 2012, to the effect that all the directors of the company were residing at Dibrugarh and the whole group was being assessed at Dibrugarh since, the inception and the attending proceedings at New Delhi will entail a huge expenditure and difficulties. After consideration of the said reply, the impugned order dated December 20, 2012, was passed. It was observed that the company had registered office at New Delhi with the business activities in Noida. The directors of the company were living at A-73, New Friends Colony for quite long time. Specific evidence had been gathered regarding tax evasion by the group at New Delhi. Further, enquiries were required to be conducted at New Delhi and to some extent in North East. Since major business activities are in and around Delhi and the control is also in Delhi, the cases were required to be centralized at Delhi for effective co-ordinated investigation and administrative convenience. 2. Grievance in the petition is that the exercise of power by way of the impugned order is ultra vires section 127(2)(a) of the Income-tax Act, 1961, as there was disagreement between the Chief Commissioner of Income-tax, Shillong, under whose jurisdiction the assessment was being made and the Director General of Taxes (Investigation), New Delhi, as reflected in the letters dated May 25, 2012, and July 25, 2012. It was also submitted that since the case does not fall under section 127(2)(a), the power of transfer, if at all, would be exercised under section 127(2)(b) by such officers who may be specially authorized by the Chief Commissioner of Income-tax, which has not been done in this case. 3. It was also submitted that since the case does not fall under section 127(2)(a), the power of transfer, if at all, would be exercised under section 127(2)(b) by such officers who may be specially authorized by the Chief Commissioner of Income-tax, which has not been done in this case. 3. Learned counsel for the Revenue opposed the above submission and points out that though an opinion was expressed by the Chief Commissioner of Taxes, Shillong, finally a decision has been taken, on which there is no disagreement. A show-cause notice was duly given, vide letter dated August 30, 2012, by the Commissioner of Income-tax, Dibrugarh, and reply of the petitioner thereto was duly considered and, thereafter, final order dated December 20, 2012, has been passed. 4. The question for consideration is whether the impugned order is liable to be interfered with on the ground that the same is beyond the scope of section 127(2)(a). 5. Upon due consideration, we are of the view that no interference is called for. There is no allegation of personal mala fides. The order has been passed by the Commissioner of Income-tax, Dibrugarh, for transfer of cases to New Delhi. The Commissioner of Income-tax, New Delhi, has expressed its concurrence for such centralization, vide letter dated July 9, 2012. The opinion expressed by the Chief Commissioner of Taxes, Shillong, has been duly considered in letter' dated June 20, 2012, the Director General of Income-tax (Investigation), New Delhi, a cop)' of which has been handed over by the learned counsel for the petitioner during arguments, stating that a number of enquiries are required to be conducted at Delhi and to some extent in North East. It may not be possible for an Assessing Officer in regular charge to undertake the kind of detailed and co-ordinated investigations which was required. This was possible only in a central charge. Though the head office of the petitioner was in Dibrugarh where it was being presently assessed, the registered office of the company and the business activities of the group are mostly around New Delhi. It was further observed that some negative impact on the revenue in the return was also not correct as in the last three years tax due was Rs. 24.23 lakhs, Rs. 18.98 lakhs and Rs. 15.47 lakhs while amount to its credit in TDS was Rs. 2.60 crores, Rs. 1.66 crores and Rs. 1.00 crores. It was further observed that some negative impact on the revenue in the return was also not correct as in the last three years tax due was Rs. 24.23 lakhs, Rs. 18.98 lakhs and Rs. 15.47 lakhs while amount to its credit in TDS was Rs. 2.60 crores, Rs. 1.66 crores and Rs. 1.00 crores. Though the Chief Commissioner of Income-tax, Shillong, again wrote a letter dated July 25, 2012, the Commissioner of Income-tax, Dibrugarh, issued the impugned notice on August 30, 2012, after which the Chief Commissioner of Income-tax, Shillong, did not disagree with the same. 6. Thus, it cannot be held that there was any lack of agreement between the Commissioner of Income-tax, Dibrugarh, from whose jurisdiction the case is transferred or any higher authority with the Delhi Commissioner. The show cause itself was issued by the Commissioner of Income-tax, Dibrugarh, from where the proceedings have been transferred and the impugned order has also been passed by the Commissioner of Income-tax, Dibrugarh, with due concurrence of the Commissioner of Income-tax, New Delhi. 7. From the material on record, it cannot be held that the opinion formed by the Commissioner of Income-tax, Dibrugarh, is in any manner vitiated. There is material to show that there was a search and seizure at Delhi and there is allegation of tax evasion at Delhi which is being investigated at Delhi. It cannot be held that the order transferring the cases is beyond the scope of the statutory power under section 127 of the Act. 8. Thus, we find no ground to interfere. The petition is dismissed. It is made clear that this order will not debar the petitioner from seeking retransfer of its cases at appropriate stage, by making out a case.