शिमला। प्रदेश हाईकोर्ट ने आयकर कांड में मुख्यमंत्री वीरभद्र सिंह और बाकियों को उनके आयकर मामले को सेंट्रलाइजेशन करने को लेकर दिए शो कॉज नोटिस पर स्टे लगा दिया है। हाईकोर्ट ने ये स्टे वीरवार को मामले की सुनवाई करते हुए लगाया। स्टे जस्टिस राजीव शर्मा और जस्टिस सुरेश्वर ठाकुर की खंड़पीठ ने दिया है।
खंडपीठ ने आयकर विभाग को चार सप्ताह में जवाब देने के निर्देश दिए है। खंडपीठ ने कहा है कि वीरभद्र सिंह को दिए व्यक्तिगत सुनवाई के नोटिस से पहले इस मामले में की गई जांच में मिली सामाग्री को उन्हें दिया जाना चाहिए था।उसके बगैर सुनवाई करने केकोई मायने नहीं है।
पूरे मामले को जानने के लिए यहां पढ़े प्रदेश हाईकोर्ट का पूरा आदेश-:
High Court of H.P.
CWP No. 2014/2015 alongiwht CWPs No.2015/2015, 2017, 2018, 2019 and 2020 of 2015 1.4. 2015 Present: Mr. N.K. Sood, Senior Advocate with Mr. Y.W.Chauhan, Mr. Chander Shekhar Verma, Mr. pranay Pratap Singh and Mr. Neeraj Sharma, Advocates,for the peti tioner(s)
Mr. Vinay Kuthiala, Senior Advocate with Ms.Vanda Kuthiala and Mr. Diwan Singh, Advocates,for the respondent.
CMP No. 3652 of 2015 in CWP No. 2014 of 2015 CMP No. 3654 of 2015 in CWP No. 2015 of 2015CMP No. 3658 of 2015 in CWP No. 2017 of 2015CMP No. 3660 of 2015 in CWP No. 2018 of 2015CMP No. 3662 of 2015 in CWP No. 2019 of 2015 CMP No. 3664 of 2015 in CWP No. 2020 of 2015
Allowed and disposed of.
CWP No. 2014/2015 alongiwht CWPs No.2015/2015, 2017, 2018, 2019 and 2020 of 2015
2. Notice. Ms. Vandana Kuthiala, Advocate, appearsand waives service of notice on behalf of the respondent.
Reply be filed within four weeks.
CMP No. 3653 of 2015 in CWP No. 2014 of 2015 CMP No. 3655 of 2015 in CWP No. 2015 of 2015 CMP No. 3659 of 2015 in CWP No. 2017 of 2015 CMP No. 3661 of 2015 in CWP No. 2018 of 2015 CMP No. 3663 of 2015 in CWP No. 2019 of 2015 CMP No. 3665 of 2015 in CWP No. 2020 of 2015
3. Petitioners were issued show cause notices for centralization of cases on 20.1.201 5. The notices have been issued on the basis of inqui ries carried out and also the material gathered during the course of assessment proceedings and information available. Petitioners requested the respondent to supply the information/material to the assessee, which fou nd basis for issuance of notice s dated 20.1.2015. The request of the petitioners was turned down on 16.2.2015. The text of letter dated 16.2.2015 reads as under:
With reference to above subject, your Counsel vide letter dated 30.01.2015 has requested to supply the information/ material to the assessee, which form the basis fo issuance of present Show Cause Notice.In this regard, it is informed that the information/reason in terms of section 127 of Income Tax Act, 1961, is already given in the Show Cause Notice itself. The material gathered, relating to the respective assessment years, will be supplied and put to you by the Assessing Officer during the course of assessment proceedings as envisaged by law.
Therefore, in accordance with the statutory mandate and settled law an opportunity of hearing is being accorded to you and you may submit your objections,if any, against the centralization and transfer of your case to Central Circle on the basis of the facts stated in the show cause notice. Your response will be duly considered by me before passing any order in accordance with law.
4. It is evident from the text of letter dated 16.2.2015 that the material sought for by the petitioner s were to be supplied to them by the Assessing Officer during the course of assessment proceedings, as envisaged by law.
5. The issuance of notices under Section 127 of the Income Tax Act, 1961 must prima facie show due application of mind. The expression used in Section 127 (2) (a) of the Income Tax Act, 1961 is “reasonable opportunity of being heard”. The reasonable opportunity of being heard in the matter to be granted to the assessee must be effective and not mere formality. The order must contain specific reasons after taking into consideration the factual matrix. Merely stating that the transfer is for the purpose of coordinating in itself is not a ground to consolidating the cases at one place. The cause of action has arisen within the State of Himachal Pradesh. The convenience of the party can not be overlooked. The order passed by the competent authority transferring cases is a quasi judicial order and not an administrative order. The decision to transfer the case must comply with the provisions of section 127 (2) (a) of the Income Tax Act. The principles of natural justice have to be complied with at every stage. Violation of principles of natural justice at the initial stage can not be cured at the subsequent stage.
Moreover, the order should be self- contained/ speaking and not merely a paper – decision. Recording of reasons is also sine qua non , as per mandatory provisions of section 127 (2) (a) of the Income Tax Act .
6. We are of the considered opinion that the petitioners at least should know the gist of enquiry carried out against them and were also liable to be supplied adverse material gathered against them during assessment proceedings or information available, in order to enable them to represent their cases effectively before the Commissioner of Income Tax. The adverse material gathered against the petitioner s by way of inquiry, information etc. was to be made available before hand and not at the time of assessment proceedings. There is a difference between pre-decisional hearing and post-decisional earing. In the instant case, taking into consideration the l egal/factual assessment involved, petitioners are entitled to pre – decisional hearing in order to contest the show cause notice (s) dated 20.1.2015.
7. There is a prima facie case and balance of convenience is also in favour of the petitioners. They will suffer irreparable loss and injury if the operation of impugned show cause notice(s) dated 20.1.2015 is not stayed. Consequently, there shall be stay of impugned annexure P- 10 in CWP No. 2014/2015, annexure(s) P-5 in CWP No. 2015/2015, 2017/2015, 2018/2015 and 2019/2015 and annexure P -12 in CWP No. 2020/2015 all dated 20.1.2015, till further orders by this Court.
(Rajiv Sharma), Judge.
(Sureshwar Thakur), Judge.