Wp(C)/1880/2010 Of Mrs.mary David v. The Deputy Commissionr Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 19TH JANUARY 2010 / 29TH POUSHA 1931 WP(C).No. 1880 of 2010(H) ------------------------- PETITIONER(S): --------------- 1. MRS.MARY DAVID, W/O.LATE SRI.C.P.DAVID, CHEMBAKOTTUKUDIYIL HOUSE, AAYAKKAD, KOTHAMANGALAM. 2. ARUN DAVID, S/O.LATE C.P.DAVID, CHEMBAKOTTUKUDIYIL HOUSE, AAYAKKAD, KOTHAMANGALAM. 3. ABBY DAVID, S/O.LATE C.P.DAVID, CHEMBAKOTTUKUDIYIL HOUSE, AAYAKKAD, KOTHAMANGALAM. 4. ANOOP DAVID, S/O.LATE C.P.DAVID, CHEMBAKOTTUKUDIYIL HOUSE, AAYAKKAD, KOTHAMANGALAM. 5. MANJU REJI, D/O.LATE C.P.DAVID, RESIDING AT 1/A, JOMER RESIDENCY, ELAMKULAM, KADAVANTHARA, COCHIN-20. BY ADV. SRI.ANIL D. NAIR RESPONDENT(S): --------------- 1. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II, ERNAKULAM. 2. THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, ERNAKULAM. STANDING COUNSEL SRI.JOSE JOSEPH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) No. 1880 of 2010 --------------------------------------- Dated, this the 19[th] day of January, 2010 J U D G M E N T The petitioner is aggrieved of Ext.P8 order, whereby Ext.P3appeal preferred by the department before the 2[nd] respondent Tribunalhas been finalized, turning down the request of the petitioner foradjournment. The case put forth by the petitioner is that, this is a caseof 'denial of opportunity of hearing' and hence that the Writ Petition ismaintainable. 2.The matter has been posted before this Court based on theendorsement made by the Registry doubting the maintainability of theWrit Petition, in view of the appellate remedy available. 3.As noted above, specific case of the petitioner is that theWrit Petition is maintainable in view of the fact that no opportunity ofhearing was given to the petitioner while passing Ext.P8 order, by the 2[nd]respondent Tribunal. It is very much relevant to note from the impugnedorder, particularly the observations made in paragraph 11, 12 and 13and also the admitted/undisputed facts as conceded, from the part of thepetitioner in the Writ Petition, that pursuant to the Ext.P2 order passedby the Commissioner of Income Tax Appeal, Kochi in favour of the WP(C) No.1880/2010 petitioner (upon challenging Ext.P1 assessment order passed by the 1[st]respondent), Ext.P4 notice was issued to the petitioner as to the hearingscheduled. It is revealed that the petitioner sought for adjournment of thehearing scheduled on 10.11.2009 stating that the Chartered Accountantwho was representing the petitioner/appellant was stated as “engagedotherwise”. Observing that no authorization was produced as to theengagement in favour of the above Chartered Accountant or anybody elsein this regard and also that the assesee had not stated the actual reason,but for stating that the Chartered Accountant as “engaged otherwise”, therequest for adjournment was rejected deprecating the casual approachand the matter was finalized as per Ext.P8 order, which in turn ischallenged in this Writ Petition. 4.Going by the admitted/undisputed facts and figures, it is verymuch clear that it is not a case of 'non-issuance' of notice to the petitioner,but a case where notice was issued and admittedly served to thepetitioner who requested for adjournment, which however was rejected.Whether the rejection of the request for adjournment was correct or not, isa different matter, to be examined by the appellate authority and it doesnot amount to any non-issuance of notice so as to constitute violation ofnatural justice. 5.In the above facts and circumstances, the remedy of the WP(C) No.1880/2010 4.Going by the admitted/undisputed facts and figures, it is verymuch clear that it is not a case of 'non-issuance' of notice to the petitioner,but a case where notice was issued and admittedly served to thepetitioner who requested for adjournment, which however was rejected.Whether the rejection of the request for adjournment was correct or not, isa different matter, to be examined by the appellate authority and it doesnot amount to any non-issuance of notice so as to constitute violation ofnatural justice. 5.In the above facts and circumstances, the remedy of the WP(C) No.1880/2010 petitioner if any is by way of challenging Ext.P8 order in the manner asprescribed in law and this being the position, the defect noted by theRegistry holding that the Writ Petition is not maintainable is sustained.Accordingly interference is declined and the matter is dismissed; howeverwithout prejudice to the right of the petitioner to pursue the statutoryremedy by way of appeal. The Registry will number the Writ Petition for the administrativepurpose. dnc P. R. RAMACHANDRA MENONJUDGE