VYAPAR MANDAL LTD Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) : The petitioner, Vyapar Mandal Ltd., is a public limited company, having its registered office at No. 47, Khengraputty Street, in the town of Calcutta. For the asst. yrs. 1954-55 to 1961-62, the ITO, "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 asst. yr. 1962-63 was still pending before the ITO, "I" Ward, Companies District III, Calcutta, the respondent, CIT, made an order dt. 3rd Jan., 1963, in exercise of his power under s. 127(1) of the IT Act, 1961, transferring the case of the petitioner to the ITO "E" Ward, Companies District III, Calcutta. The material portion of the order is set out herein below :

(2.) THE purport of the order was communicated to the petitioner by the ITO, "J" Ward, by a letter dt. 24th Jan., 1963. THE petitioner thereupon wrote a letter to the respondent-CIT on 29th Jan., 1963, objecting to the transfer in the following language:

(3.) 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 ITO to another ITO in the same city is made, that relieve the CIT from hearing the assessee, whose case he proposes to transfer, under the provisions contained in the proviso, but nothing contained in the proviso relieves his of the duty of recording his reasons for the transfer under the main part of s. 127(1).