SMT BEENA MALPANI vs. UNION OF INDIA and ORS

S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.9641/2012 Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors. AND S.B. CIVIL WRIT PETITION NO.7581/2010 Smt. Beena Malpani Vs. Union of India & Ors. AND S.B. CIVIL WRIT PETITION NO.7576/2010 Smt. Beena Malpani Vs. Union of India & Ors. AND S.B. CIVIL WRIT PETITION NO.7583/2010 Smt. Beena Malpani Vs. Union of India & Ors. Date of Order : 24th April, 2014 HON'BLE MR. JUSTICE M.N.BHANDARI

Mr.P.K.Kasliwal, for the petitioner/s. Mrs.Parinitoo Jain, for the respondent/s. By the Court: With the consent of learned counsel for both the parties, the writ petitions are heard finally, at this stage itself. By these writ petitions, the petitioner has made a challenge to the notice under Section 148 of the Income Tax Act, 1961 (for short “the Act of 1961”) and further prayer is to transfer the case to Jalgaon, in state of Maharashtra. It is precisely for the reason that petitioner is residing there and being

S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 2 a female, it would be difficult for her to contest the case at Beawar. A reference of Section 127 of the Act of 1961 has been given to show powers for transfer of the case. It is also stated that from the assessment year 2009-10 onwards, the petitioner is filing her return at Jalgaon, Maharashtra itself, though the case in hand is of assessment year prior to it but then it can be transferred keeping in mind the convenience of the petitioner to contest the notice effectively. Learned counsel for the respondent/s opposed the prayer aforesaid and submits that as per Section 124 (3) of the Act of 1961, jurisdiction cannot be challenged once voluntary return is filed under an office and if, at all, it is to be challenged, then it can be within a period of 30 days from the date of filing of return. The petitioner was filing her return throughout at Beawar and it is only from the year 2009-10 onwards, that she is filing her return at Jalgaon, Maharashtra. The previous record of the petitioner is lying at Beawar, thus the notice under Section 148 of the Act of 1961 has to be dealt with under the jurisdiction of office at Beawar. In view of above, transfer of case would result in transfer of record and would be returned because her record has to be maintained at Beawar for the previous years.

S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 3 I have considered the submissions made by learned counsel for the parties and scanned the matter carefully. It is case where after assessment of petitioner, a notice under Section 148 of the Act of 1961 was given. The only prayer of the petitioner is to transfer the case to Jalgaon, Maharashtra where she can contest the notice under Section 148 of the Act of 1961 served in the year 2012. I find that issue of jurisdiction, if any, cannot be raised after a period of 30 days from the date of filing of return. Section 124 of the Act of 1961 is quoted hereunder for ready reference : “124. (1) Where by virtue of any direction or order issued under sub-section (1) or sub- section (2) of Section 120, the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction— (a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and

S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 4 (b) in respect of any other person residing within the area. (2) Where a question arises under this section as to whether an Assessing Officer has jurisdiction to assess any person, the question shall be determined by the Director General or the Chief Commissioner or the Commissioner; or where the question is one relating to areas within the jurisdiction of different Directors General or Chief Commissioners or Commissioners, by the Directors General or Chief Commissioners or Commissioners concerned or, if they are not in agreement, by the Board or by such Director General or Chief Commissioner or Commissioner as the Board may, by notification in the Official Gazette, specify. (3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer - (a) where he has made a return [under sub- section (1) of Section 115WD or] under sub- section (1) of Section 139, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of Section 142 or[sub-section (2) of Section 115WE or] sub- section (2) of Section 143 or after the completion of the assessment, whichever is earlier;

S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 5 (b) where he has made no such return, after the expiry of the time allowed by the notice under [sub-section (2) of Section 115 WD sub-section (1) of Section 142 or under sub- section (1) of Section 115 WH or under Section 148 for the making of the return or by the notice under the first proviso to Section 115WF or under the first proviso to Section 144 ] to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier. (4) Subject to the provisions of sub-section (3), where an assessee calls in question the jurisdiction of an Assessing Officer, then the Assessing Officer shall, if not satisfied with the correctness of the claim, refer the matter for determination under sub-section (2) before the assessment is made. (5) Notwithstanding anything contained in this section or in any direction or order issued under Section 120, every Assessing Officer shall have all the powers conferred by or under this Act on an Assessing Officer in respect of the income accruing or arising or received within the area, if any, over which he has been vested with jurisdiction by virtue of the directions or orders issued under sub-section (1) or sub-section ) of

S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 6 Section 120.]” A reference of Section 127 of the Act of 1961 has also been given to show powers of transfer. It is no doubt that aforesaid provision gives power to the Director General or Chief Commissioner or Commissioner of Income Tax to transfer the case but it is not mandatory and has to be for the reasons to be recorded. It cannot be only for the convenience of the assessee, inasmuch as, the record of the year concerned is maintained at Beawar and if the case is transferred, then it would result in transfer of the record for that relevant year. The record is otherwise to be maintained at Beawar only. The petitioner would contest the matter through the Advocate, thus question of inconvenience is not large so as to direct the respondents to transfer the case at Jalgaon, Maharashtra. In the light of the aforesaid, I do not find any merit in the writ petitions, hence, the same are dismissed. It dismisses the stay applications as well, however, the application/s for vacation of stay order gets allowed automatically with the rejection of writ petition/s. (M.N. BHANDARI), J. S/No.25 Preety, P.A.

S.B. CIVIL WRIT PETITION NO.9641/2012 (Smt. Beena Malpani Vs. Commissioner of Income Tax, Ajmer & Ors.) 7 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed. Preety Asopa P.A.