[Fiat India Automobiles Ltd. V/s. ACIT (Bom); W. P. No. 8657 of 2012 dated 16-10-2012:]
On shifting the registered office of the petitioner from Mumbai to Pune, the petitioner in June-July 2009 had applied for transfer of assessment records from Mumbai to Pune. After exchange of several letters, by his order dated 22-11-2011, the CIT-10 Mumbai transferred the powers to assess the petitioner from ACIT-10(1) Mumbai to DCIT, Circle-1(2) Pune. However, on 30-03-2012, ACIT-10(1) Mumbai issued notice u/s. 148 with a view to reopen the assessment for the A. Y. 2005-06.
The Bombay High Court allowed the writ petition filed by the petitioner and quashed the impugned notice u/s. 148 dated 30-03-2012 and held as under:
“i) In the affidavit-in-reply filed by the DCIT-10(1) Mumbai, it is stated that by a corrigendum order dated 27-03-2012, the CIT-10 Mumbai has temporarily withdrawn/cancelled the earlier transfer order dated 22-11-2011 for the sake of administrative convenience and therefore, the notice dated 30-03-2012 would be valid. It is the case of the petitioner that neither any notice to pass a corrigendum order was issued to the petitioner nor the alleged corrigendum order dated 27-03-2012 has been served upon the petitioner.
ii) The question therefore to be considered is, when the CIT-10 Mumbai has transferred the jurisdiction to assess/reassess the petitioner from ACIT-10(1) Mumbai to DCIT Circle-1(2) Pune u/s. 127 of the Act after hearing the petitioner on 22-11-2011, whether the CIT-10 Mumbai at the instance of ACIT-10(1) Mumbai is justified in issuing a corrigendum order on 27/03/2012 behind the back of the petitioner and whether the ACIT-10(1) Mumbai is justified in issuing the impugned notice u/s. 148 of the Act dated 30-03-2012 on the basis of the said corrigendum order dated 27-03-2012 which was passed without issuing a notice to the petitioner, without hearing the petitioner and which is uncommunicated to the petitioner.
iii) The conduct of the ACIT and CIT is highly deplorable. Once the jurisdiction to assess the assessee was transferred from Mumbai to Pune, it was totally improper on the part of ACIT Mumbai to request the CIT to pass a corrigendum order with a view to circumvent the jurisdictional issue. Making this request was in gross abuse of the process of law. If there was any time barring issue, the ACIT Mumbai ought to have asked his counterpart at Pune to whom the jurisdiction was transferred to take appropriate steps in the matter instead of taking steps to circumvent the jurisdictional issue.
iv) It does not befit the ACIT Mumbai to indulge in circumventing the provisions of law and his conduct has to be strongly condemned. Instead of bringing to book persons who circumvent the provisions of law, the CIT has himself indulged in circumventing the provisions of law which is totally disgraceful. The CIT ought not to have succumbed to the unjust demands of the ACIT and ought to have admonished the ACIT for making such an unjust request.
v) The CIT ought to have known that there is no provision under the Act which empowers the CIT to temporarily withdraw the order passed by him u/s. 127(2) for the sake of administrative convenience or otherwise. If the CIT was honestly of the opinion that the order passed u/s. 127(2) was required to be recalled for any valid reason, he ought to have issued notice to that effect to the assessee and passed an order after hearing it.
vi) Writ petition is allowed by quashing the impugned notice dated 30-03-2012. Though the CCIT agrees that the actions of CIT and ACIT are patently unjustified and not as per law, he has expressed his helplessness in the matter. It is expected that the CCIT shall take immediate remedial steps to ensure that no such incidents occur in the future. Department shall pay a cost of Rs. 10,000/- which may be recovered from CIT and ACIT.”
