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 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