IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1880 of 2010(H)
1. MRS.MARY DAVID, W/O.LATE SRI.C.P.DAVID,
... Petitioner
2. ARUN DAVID, S/O.LATE C.P.DAVID,
3. ABBY DAVID, S/O.LATE C.P.DAVID,
4. ANOOP DAVID, S/O.LATE C.P.DAVID,
5. MANJU REJI, D/O.LATE C.P.DAVID,
Vs
1. THE DEPUTY COMMISSIONER OF INCOME TAX,
... Respondent
2. THE INCOME TAX APPELLATE TRIBUNAL,
For Petitioner :SRI.ANIL D. NAIR
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :19/01/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
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WP(C) No. 1880 of 2010
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Dated, this the 19th day of January, 2010
J U D G M E N T
The petitioner is aggrieved of Ext.P8 order, whereby Ext.P3
appeal preferred by the department before the 2nd respondent Tribunal
has been finalized, turning down the request of the petitioner for
adjournment. The case put forth by the petitioner is that, this is a case
of ‘denial of opportunity of hearing’ and hence that the Writ Petition is
maintainable.
2. The matter has been posted before this Court based on the
endorsement made by the Registry doubting the maintainability of the
Writ Petition, in view of the appellate remedy available.
3. As noted above, specific case of the petitioner is that the
Writ Petition is maintainable in view of the fact that no opportunity of
hearing was given to the petitioner while passing Ext.P8 order, by the 2nd
respondent Tribunal. It is very much relevant to note from the impugned
order, particularly the observations made in paragraph 11, 12 and 13
and also the admitted/undisputed facts as conceded, from the part of the
petitioner in the Writ Petition, that pursuant to the Ext.P2 order passed
by the Commissioner of Income Tax Appeal, Kochi in favour of the
WP(C) No.1880/2010
2
petitioner (upon challenging Ext.P1 assessment order passed by the 1st
respondent), Ext.P4 notice was issued to the petitioner as to the hearing
scheduled. It is revealed that the petitioner sought for adjournment of the
hearing scheduled on 10.11.2009 stating that the Chartered Accountant
who was representing the petitioner/appellant was stated as “engaged
otherwise”. Observing that no authorization was produced as to the
engagement in favour of the above Chartered Accountant or anybody else
in this regard and also that the assesee had not stated the actual reason,
but for stating that the Chartered Accountant as “engaged otherwise”, the
request for adjournment was rejected deprecating the casual approach
and the matter was finalized as per Ext.P8 order, which in turn is
challenged in this Writ Petition.
4. Going by the admitted/undisputed facts and figures, it is very
much 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 the
petitioner who requested for adjournment, which however was rejected.
Whether the rejection of the request for adjournment was correct or not, is
a different matter, to be examined by the appellate authority and it does
not amount to any non-issuance of notice so as to constitute violation of
natural justice.
5. In the above facts and circumstances, the remedy of the
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3
petitioner if any is by way of challenging Ext.P8 order in the manner as
prescribed in law and this being the position, the defect noted by the
Registry holding that the Writ Petition is not maintainable is sustained.
Accordingly interference is declined and the matter is dismissed; however
without prejudice to the right of the petitioner to pursue the statutory
remedy by way of appeal.
The Registry will number the Writ Petition for the administrative
purpose.
P. R. RAMACHANDRA MENON
JUDGE
dnc