Full Judgment
2. The notice dated February 12,1991, fixing the hearing of the appeal for March 11,1991 was served on the appellant and the acknowledgment of the notice having been served on the appellant is also available on our records. In the absence of any request for adjournment and the assessee not appearing to argue the appeal on the date of hearing, we have disposed of this appeal ex parte by hearing the departmental representative and considering the material that is available on our records.
3. The primary contention of the appellant is that the CIT(A) has erred in not admitting the additional ground of appeal challenging the jurisdiction of authorities in Central Circle on the ground of order under Section 127 whether administrative or quasi-judicial is complete only when the same is served as required under law. the CIT( A): though had held that, the additional ground was an after-thought and hence should be rejected but had dealt with this issue on merits as well in paragraphs 2 and 3 running to twelve pages. The basis of rejection of the additional ground is that, challenge of jurisdiction is an assessing officer is permissible only till the assessment is framed and not thereafter. He supported this conclusion of his by placing reliance on the ratio of the Delhi High Court in Kanji Mai & Sons v. CIT [1982] 138 ITR 391. In this case the High Court had observed that, the assessing officer and the assessee both being localized in a particular area and the income is also earned therein, then the Income-tax Officer having territorial jurisdiction is competent to make the assessment.
They also observed that, even when there is a technical mistake in relation to the exercise of the jurisdiction, the assessment should not be invalidated.
In the instant case, the Income-tax Officer Central Circle-VIII, New Delhi and the assessee are localized in Delhi and the income is also earned from Delhi, by virtue of the ratio of the Delhi High Court (supra), the Assessing Officer also having territorial jurisdiction, was found to be competent in making of the assessment. The objection of the assessee not being that, the assessing officer did not hold territorial jurisdiction or that, his income having been earned from a different state, though, the assessing officer and the assessee were localized at Delhi, the assessment could not have been framed by the Income-tax Officer Central Circle-VIII, this a preliminary objection of the assessee is therefore without any merit and hence ejected.
3.1 The statute had conferred the power of transfer of cases to the Commissioner under Section 127 of the Act. Sub-section (1) of Section 127 states that, "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 the reasons for doing so transfer any case from one or more of the following officers subordinate to him...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 (whether with or without concurrent jurisdiction with the Inspecting Assistant Commissioner) to any other Income-tax Officer or Income-tax Officers (whether with or without concurrent jurisdiction with the Inspecting Assistant Commissioner) and the offices of all such Officers are situate in the same city, locality or place.
The reading of the above is indicative of the fact that, the Commissioner who transfers the jurisdiction from one assessing officer to another, need not give any opportunity of being heard to the assessee in cases of transfer of jurisdiction is within the same city, locality or place and if the offices of all such officers are located in the same city, locality or place. The assessee is harping on the notice of transfer of the case should have been served upon him. This claim of the appellant is bereft of any substance because, the opportunity of being heard and the notice of the proposal being served upon him are interrelated to each other. The purpose of providing of opportunity is preceded by the service of the notice and this would hold good only in the event of transfer of a case is from one state to another, one locality to another, from a place in one city to another in a different city, in which event, it might cause undue hardship to the assessee of moving from one place, State, city etc., to another place or city or locality or State, in connection with his assessments.
The proviso is very clear in stating that, there is no need to provide a hearing in connection with the transfer of caces from one place, city or locality to another place in the same city or locality. As observed earlier, there being no requirement of providing any opportunity if the transfer is within the same locality, city or place, the service of transfer could not be insisted upon. The transfer of cases from one officer to another , in the offices located in the same city, place or locality is no doubt an administrative order but, the assessee cannot compel the administrator to follow a course of action such as service of notice which is always linked with the providing of an opportunity, which has been clearly spelt as not necessary in the situations as is the case of the appellant i.e., the offices being located in the same area, locality or place. Therefore, this claim of non-service of notice of transfer of his case and non-providing of an opportunity of hearing is without any merit, what is not contemplated by the Act, cannot be compelled by any assessee.