High Court Kerala High Court

Mrs.Mary David vs The Deputy Commissioner Of Income … on 19 January, 2010

Kerala High Court
Mrs.Mary David vs The Deputy Commissioner Of Income … on 19 January, 2010
       

  

  

 
 
  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.
                 -----------------------------------------------
                         WP(C) No. 1880 of 2010
                      ---------------------------------------
              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

WP(C) No.1880/2010
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