The petitioner, Messrs. Vyapar Mandal Ltd., is a public limited company, having its registered officer at No. 47, Khengraputty Street, in the town of Calcutta. For the assessment years 1954-555 to 1961-62, the Income-tax Officer, 'J' Ward, Companies District III, Calcutta, ordinarily having jurisdiction over the petitioner-company, dealt with the assessment cases of the petitioner-company, found that the petitioner-company had suffered losses and further found that no tax was payable by it for those years. While the assessment proceedings against the petitioner-company for the assessment year 1962-63 was still pending before the Income-tax Officer, 'I' Ward, Companies District III, Calcutta, the respondent, Commissioner of Income-tax, made an order dated January 3, 1963, in exercise of his power under section 127(1) of the Income-tax Act, 1961, transferring the case of the petitioner to the Income-tax Officer 'E' Ward, Companies District III, Calcutta. The material portion of the order is set out hereinbelo :
'In exercise of the powers conferred by sub-section (1) of section 127 of the Income-tax Act, 1961 (43 of 1961), the Commissioner of Income-tax, West Bengal, hereby transfers the case, the particulars of which are mentioned in column 2 of the Schedule hereto annexed, from the Income-tax Officer mentioned in column 3 to the Income-tax Officer mentioned in column 4 thereof.
SCHEDULE
G.I.R.No.
Name of assessee
From Income-tax Officer
To Income-tax Officer
(1)
(2)
(3)
(4)
C-III/V/36/J
Vyapar Mandal Limited 47, Khengraputty Street, Calcutta.
I.T.O., J Ward, Companies Dist. III, Calcutta.
I.T.O.,EWard, Companies Dist. III, Calcutta
The purport of the order was communicated to the petitioner by the Income-tax Officer, 'J' Ward, by a letter dated January 24, 1963. The petitioner thereupon wrote a letter to the respondent-Commissioner on January 29, 1963, objecting to the transfer in the following languag :
'This is a surprise for us and we feel highly aggrieved as the said transfer has been made without affording any opportunity to us of being heard before the said order was made. We do not know the reason for such transfer. We hope we would get proper justice in the matter and, therefore, request Your Honour not to implement the said order.'
Not having received any reply to the letter, the petitioner-company again wrote to the respondent-Commissioner on February 14, 1963, praying that the order be not made effective. On February 23, 1963, the respondent-Commissioner replied to the letters of the petitioner in the following languag :
'With reference to your petition dated January 29, 1963, and February 14, 1963, I am to inform you that the transfer of your case from J Ward, Companies District III, to E Ward, Companies District III, was made for administrative convenience....'
Aggrieved by the order of transfer and the unwillingness of the respondent-Commissioner to recall the same, the petitioner moves this court under article 226 of the Constitution, praying for a writ of certiorari for the quashing of the order of transfer dated January 3, 1963, and for a mandate upon the respondent-Commissioner directing him to recall the order and obtained this rule.
Section 127(1) of the Income-tax Act, 1961, which is of relevant consideration in this context, is couched in the following languag :
'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 his reasons for doing so, transfer any case from one Income-tax Officer subordinate to him to another also subordinate to him, and the Board may similarly transfer any case from one Income-tax Officer to anothe :
Provided that nothing in this sub-section shall be deemed to require any such opportunity to be given where the transfer is from one Income-tax Officer to another whose offices are situate in the same city, locality or place.'
Mr. T. K. Bose, learned advocate for the petitioner, argued a short point in support of the rule. He argued that regard being had to the language of the proviso to section 127(1) and also to the fact that the transfer of the petitioners case was made from one Income-tax Officer to another Income-tax Officer, having their offices in the same City of Calcutta, it was not necessary for the respondent-Commissioner to give to the assessee-petitioner an opportunity of being heard against the proposal of transfer of the case, but it was nevertheless incumbent upon the respondent-Commissioner to record his reasons for the transfer under the main part of section 127(1), which he did not do and which he did not inform to the petitioner. That, he submitted, made the order bad.
The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it. Therefore, when transfer of a case from one Income-tax Officer to another Income-tax Officer in the same city is made, that relieves the Commissioner of Income-tax from hearing the assessee, whose case he proposes to transfer, under the provisions contained in the proviso. But nothing contained in the proviso relieves him of the duty of recording his reasons for the transfer under the main part of section 127(1).
I have, therefore, to see whether the respondent-Commissioner at all recorded his reasons. The respondent-Commissioner claims that he did do so. In paragraph 8 of the affidavit-in-opposition it is state : 'I state that the reasons for the transfer have been properly recorded by the respondent No. 1 as required by the Income-tax Act under section 127(1)'. It further appears from the respondent-Commissioners letter to the petitioner dated February 23, 1963, that the reason given for the transfer was 'administrative convenience'. Pursuant to my request, Mr. Sabyasachi Mukherjee, learned advocate for the respondent-Commissioner, produced before me the records which contained the reasons for the transfer. I cannot, therefore, uphold the contention of Mr. Bose that the reasons were not recorded.
The petitioner is not entitled to have a copy of the reasons recorded. He has not even prayed from supply of such a copy. The Supreme Court has now held in the case of K. S. Rashid & Sons v. Income-tax Officer, dealing with reasons to be recorded under the first proviso to section 34(1A) of the Income-tax Act, 1922, which section is also similarly worded, that an assessee is not entitled to have a copy of the reasons. I, therefore, refrain from disclosing the reasons contained in the records.
In the result I hold that there is no substance in this rule. The rule is accordingly discharged with costs.