E. M. Muthappa Chettiar vs The Income-Tax Officer

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 107 of 1956

Decision Date: 21 September 1960

Coram: N. Rajagopala Ayyangar, S.K. Das, M. Hidayatullah, K.C. Das Gupta, J.C. Shah

In the matter titled E. M. Muthappa Chettiar versus The Income‑Tax Officer, the Supreme Court of India delivered its judgment on 21 September 1960. The opinion was authored by Justice N. Rajagopala Ayyangar and the bench was composed of Justices N. Rajagopala Ayyangar, S. K. Das, M. Hidayatullah, K. C. Das Gupta and J. C. Shah. The petitioner in the case was E. M. Muthappa Chettiar and the respondent was the Income‑Tax Officer of the Special Circle at Coimbatore. The decision is reported in the 1961 volume of the All India Reporter at page 204 and also appears in the 1961 Supreme Court Reports (1) at page 788.

The factual background involved a partnership firm consisting of the petitioner and another partner that was engaged in a managing‑agency business. On 31 March 1951, the firm was assessed under the Excess Profits Tax Act, 1940 for the fiscal year 1942 as well as for the broken period extending from January 1943 to 4 March 1943. The statutory notices required for that assessment were served not upon the petitioner but upon the other partner, who, pursuant to the terms of the partnership deed, held the position of managing partner. On 4 March 1943, the managing partner issued a notice announcing the dissolution of the firm. Following that notice, the petitioner instituted suit seeking dissolution of the partnership effective from a date to be fixed by the court. The trial court upheld the dissolution from the date specified in the managing partner’s notice. However, on appeal, the High Court rendered a judgment in 1953 that fixed the date of dissolution as 10 March 1949. The petitioner then appealed this High Court decision to the Supreme Court, and that appeal remained pending when the present petition was filed.

The petitioner challenged the validity of the assessment order and the subsequent proceedings for recovery of the tax under Article 226 of the Constitution. His challenges were based on two principal grounds. First, he argued that the firm had dissolved on 4 March 1943, and therefore any notices served after that date on the managing partner could not bind him personally. Second, he contended that there had been no separate demand of tax addressed to him under section 29 of the Indian Income‑Tax Act, 1922, and consequently the tax could not be recovered from him under section 46(2) of that Act. The High Court dismissed the petitioner's application on both grounds.

The Supreme Court held that the petitioner could not rely upon a prior dissolution of the partnership to escape the assessment. Even assuming, for argument’s sake, that the partnership had been dissolved on the date of the assessment, the petitioner’s position would remain unchanged. The Court explained that under the Excess Profits Tax Act, 1940, the unit of assessment was not the partnership as an entity but the business carried on by the partners. Consequently, an assessment order issued after notice had been served on the managing partner was valid and binding upon the petitioner in his capacity as a partner. The Court further observed that section 44 of the Indian Income‑Tax Act, 1922, as amended by section 21 of the Excess Profits Tax Act, 1940, made the assessment binding on the petitioner despite the dissolution claim. Accordingly, the Court affirmed that the assessment and the subsequent tax recovery proceedings were lawful.

The Court referred to the authorities decided in the Madras case reported at (1954) 26 I.T.R. 99 and in Bose v. Manindra Lal Goswami reported at (1957) 33 I.T.R. 435, and held that those decisions were approved. It was observed that a separate notice of demand issued under section 29 of the Indian Income‑Tax Act, which would have to be addressed specifically to the appellant, was not a prerequisite for the recovery of tax by the mode prescribed in section 46(2) of the same Act. The Court further explained that, according to the proviso to section 21 of the Excess Profits Tax Act, 1940, the appellant fell within the definition of an assessee contained in section 29 of the Indian Income‑Tax Act, 1922. Consequently, a notice of demand that had been served on the managing partner of the firm operated as a notice to the appellant himself, this being effected by virtue of section 63 of the Income‑Tax Act as made applicable through section 21 of the Excess Profits Tax Act.

The judgment was issued in a civil appellate jurisdiction concerning Civil Appeal No. 107 of 1956. The appeal had been taken by special leave from the judgment and order dated 21 January 1954 of the Madras High Court in Writ Petition No. 498 of 1952. Alongside the appeal, Petition No. 130 of 1958 was pending. The petition was filed under article 32 of the Constitution of India for the enforcement of Fundamental Rights. Counsel for the appellant in the civil appeal and petitioner in the writ petition were represented by senior counsel, while the respondents in both proceedings were represented by their own counsel. The judgment was delivered on 21 September 1960 by Justice Ayyangar.

The factual backdrop described that the appellant, Muthappa Chettiar, who was a partner in the firm Muthappa & Co., was being pursued for the recovery of Excess Profits Tax that had been assessed on the business of that firm. He challenged the legality of the recovery process and consequently instituted Writ Petition 498 of 1952 before the Madras High Court, seeking a writ of prohibition that would prevent the Income‑Tax Officer of the E.P.T. Circle in Madras from taking any coercive measures against him for the collection of the tax. The High Court dismissed that petition, after which the appellant secured special leave to appeal the decision in Civil Appeal 107 of 1956.

During the hearing of the writ petition, the appellant also attempted to contest the validity of the assessment order imposing the Excess Profits Tax. The learned judges, however, held that this line of contention was not relevant to the specific relief of a writ of prohibition that the appellant had sought, and they further concluded that the grounds raised by the appellant lacked merit. To circumvent any procedural or technical objections, the appellant subsequently filed Petition 130 of 1958 under article 32 of the Constitution, requesting the issuance of a writ of certiorari or any other appropriate writ to set aside the assessment order concerning the Excess Profits Tax. Because the appeal and the petition were closely interrelated, the Court elected to hear them together, and it indicated that it would initially address the issues raised in the writ petition, as those matters logically preceded the challenge to the legality of the tax‑recovery proceedings.

The facts necessary to appreciate the points urged are briefly as follows: The appellant and Thyagrajan Chettiar, who was impleaded as the second respondent in Civil Appeal 107 of 1956, were partners in a firm called Muthappa & Co. The partnership was formed in November 1940, and the firm acted as the managing agent of a textile mill named Saroja Mills Ltd., which was situated in the Coimbatore district. The assessment that is now being challenged relates to the Excess Profits Tax liability of this managing‑agency business. The chargeable accounting periods concerned are the calendar year 1942 and the truncated period from 1 January 1943 to 4 March 1943. For the same periods the liability of the firm to Income Tax was assessed by the Income‑Tax Officer by his orders dated 15 March 1948, applying the provisions of section 23(5)(b) of the Income‑Tax Act, 1922. The appellant subsequently paid his share of that tax when it was demanded, and there is currently no dispute as to the propriety of that Income‑Tax assessment. The income of the managing‑agency business was computed for Excess Profits Tax at the same amount that had been used for the Income‑Tax assessment, and the Excess Profits Tax Officer completed the assessment for the two chargeable periods by his order dated 31 March 1951. The validity of this latter order of assessment is the subject of the challenge raised in Petition 130 of 1958. The first ground relied upon in support of the petition may be set out as follows: for any assessment to be valid, proper notice must have been given to the assessee. In the present case the assessment was admittedly effected by serving the prescribed notices on Thyagrajan Chettiar alone, who, according to the terms of the partnership, was the managing partner. It was nevertheless urged that the firm had been dissolved as of 4 March 1943, and that thereafter the partnership ceased to exist, terminating the mutual agency between the partners. Consequently, it was argued that Thyagrajan Chettiar could no longer represent a firm that no longer existed, nor could he represent the appellant. On that basis it was submitted that the assessment of the business to Excess Profits Tax, after notice had been given only to Thyagrajan Chettiar, could not bind either the firm or the appellant. The Court considered that two answers were possible to this submission, either of which would be sufficient to reject the appellant’s plea. First, on the facts of the present case the appellant is precluded from pleading that the firm had been dissolved at the date of the 1951 assessment and from raising any objection to the representative character of Thyagrajan Chettiar. Second, even assuming that the firm of Muthappa & Co. was deemed to have been dissolved before 1951, a proper construction of the provisions of the Excess Profits Tax Act, 1940, shows that the assessment of the managing‑agency business to Excess Profits Tax was lawfully effected by serving notice on Thyagrajan Chettiar. The facts to which reference has been made are therefore the factual foundation for the Court’s analysis.

Prior to the assessment year 1943‑44, the managing partner of Muthappa & Co., namely Thyagrajan Chettiar, filed the partnership’s income‑tax returns and conducted the income‑tax assessment proceedings on its behalf. In a public notice printed in the newspaper Hindu, Thyagrajan Chettiar announced that the partnership would be dissolved effective from 4 March 1943, and he subsequently informed the Income‑Tax Officer of this alleged dissolution. After receiving that notice, the Income‑Tax Officer wrote to the appellant asking whether Muthappa & Co. had indeed been dissolved and, if so, from which date. The appellant answered by a letter dated 1 February 1945, stating: “I wish to inform you that Messrs. Muthappa & Co. was formed under the deed of partnership dated 4 November 1940 and that the rights of the partners are set out therein. However, my partner Mr. Thyagrajan Chettiar has acted deliberately beyond the scope of the partnership deed in issuing a notice of dissolution of the partnership on me on 4 March 1943, and a suit has been filed against him in the Coimbatore Sub‑Court which is pending. Pending disposal of the said suit, I regret that I am unable to accept the alleged dissolution or to give the date of dissolution of the partnership called for in your letter.” Accepting the appellant’s statement, the income‑tax assessment was completed after a notice had been issued to Thyagrajan Chettiar in his capacity as the continuing managing partner. Consistent with his claim that the partnership had not been dissolved by Thyagrajan Chettiar’s actions, the appellant instituted civil proceedings in the Coimbatore Sub‑Court. In that suit he challenged the validity of the notice of dissolution dated 4 March 1943, prayed for a declaration that the purported dissolution was invalid and inoperative, sought a decree of dissolution to be dated as the Court might specify, and requested a rendering of accounts on the basis that the partnership continued to exist up to the date fixed by the Court. The Subordinate Judge, however, upheld the validity of the dissolution effected by Thyagrajan Chettiar in 1943.

The appellant appealed that judgment to the High Court. The High Court heard the appeal in 1953, allowed it, and fixed the date of dissolution as 10 March 1949. The record indicates that a further appeal from the High Court’s decision is pending before this Court, so that even at the present time the exact date on which the partnership should be considered dissolved remains uncertain. From the foregoing narrative it is clear that the appellant consistently maintained that the firm had not been dissolved in 1943. Consequently, at the time the assessment for Excess Profits Tax was initiated in 1951, the matter that is the subject of Petition 130 of 1958, the appellant’s position was that the partnership remained undissolved and continued to exist, a stance that he had expressed in his February 1945 letter to the Income‑Tax Officer.

The Income Tax Officer, in February 1945, continued to regard the partnership as valid and supported that view by instituting civil‑court proceedings to preserve his position. Although the Subordinate Judge had not upheld the officer’s claim, the officer’s appeal kept the matter sub judice, and until the High Court delivered its judgment in 1953 the appellant could not point to any specific date as the dissolution date. Consequently, the argument presented by learned counsel that the firm had been dissolved either on 4 March 1943 or on 10 March 1949—the date fixed by the High Court’s 1953 judgment—had to be rejected as wholly inconsistent with the appellant’s contentions expressed in the civil suit and the ensuing appeal. In these circumstances the Income Tax Officer could not be blamed for treating the firm as existing, and the same applied to the Excess Profits Tax Officer.

It was uncontested that when the Excess Profits Tax Officer commenced assessment proceedings, the appellant had filed an appeal against the Subordinate Judge’s decision in O. S. 50 of 1946, and that appeal remained pending before the High Court until its disposal in 1953. The appellant now contended that, because the High Court had held the firm to be dissolved as of 10 March 1949, any notice issued to Thyagrajan Chettiar, the managing partner, was invalid and that the assessment proceedings based on that notice were therefore illegal. Acceptance of this contention would mean that the validity of the assessment order would be determined retrospectively by the outcome of the appellant’s appeal. Thus, if the High Court had ruled that the firm was dissolved only on the date of its 1953 judgment, the assessment would be valid; but if the High Court had fixed an earlier dissolution date, the assessment would be deemed invalid. This line of argument was expressly rejected.

When the matter was put to learned counsel for the appellant, he fairly admitted that, based on the facts of this case, he could not maintain that the Excess Profits Tax assessment order was void because of an alleged disruption of Muthappa & Co. prior to the date of that order. A further response to the appellant’s submission was that, even assuming that Muthappa & Co. had in fact been dissolved before the assessment of the managing‑agency business to Excess Profits Tax, such a dissolution would not affect the validity of an assessment order issued after notice to the person managing the business during the chargeable accounting periods. The reason was that it was not the firm itself but “the business” that constituted the unit of assessment.

The Court observed that during the chargeable accounting periods the assessment was based on the management of the business, because the unit of assessment was not the firm itself but “the business” that generated the income. In this regard, counsel for the appellant referred the Court to a decision of the Madras High Court in A. O. Pandu Rao v. Collector of Madras, and argued that the decision was directly on point and, if correct, would eliminate any further argument.

In the cited case, a firm of three partners carried on its enterprise under the name P. Nagoji Rao & Son, with Gannu Rao serving as the managing partner. The chargeable accounting periods in question were the years from 1 April 1944 to 31 March 1946. Disputes arose among the partners, prompting two of them to file a suit on 26 February 1947 seeking dissolution of the firm and an accounting of its affairs against the managing partner. The suit was decreed on 14 November 1947, and the decree declared the firm dissolved as of the date the suit was instituted, namely 26 February 1947.

After the decree, the assessment of the business for Excess Profits Tax was effected by issuing notices to Gannu Rao in his capacity as managing partner. The assessment order was finally passed on 31 December 1949, and a notice of demand under section 29 of the Income Tax Act was served on him. No demand notices were served on the other two partners; nevertheless, recovery proceedings were initiated against those partners on the basis of the notices that had been served on Gannu Rao.

The two partners then approached the High Court, citing (1954) 26 I.T. 99, and invoked article 226 of the Constitution to obtain writs of certiorari seeking to quash both the Excess Profits Tax assessment orders and the recovery proceedings. Their challenge was premised on the argument that, because the decree had dissolved the firm, Gannu Rao no longer possessed authority to represent the firm or the other partners. Accordingly, they contended that a valid assessment could only have been made by serving notices under section 13 of the Excess Profits Tax Act individually on each of the remaining partners, and that any tax recovery required notices to each partner under section 29 of the Income Tax Act.

The learned judges rejected these submissions. They referred to sections 8 and 13 of the Excess Profits Tax Act, which define the “business” that generates the income as the unit of assessment for Excess Profits Tax. This contrasts with the Indian Income Tax Act, where the unit of assessment is the individual, Hindu undivided family, firm, company, or association of persons engaged in the income‑earning activity, as stipulated in section 3 of that Act. The Income Tax Act’s provisions do not apply to the Excess Profits Tax Act because section 21 of the latter expressly excludes such application. Consequently, the Court held that the assessment of the business was proper despite the dissolution of the firm.

The Court stated that, according to the provisions of the Excess Profits Tax Act, when a partnership that is carrying on a business becomes disrupted and the excess profits earned by the business before its dissolution have to be assessed, the assessment must be made under section 44 of the Income Tax Act as modified by the Central Board of Revenue exercising the power conferred by section 21 of that Act. The Court reproduced the modified text of section 44, which reads: “Where any business carried on by a firm or association of persons has been discontinued, every person who was at the time of such discontinuance a partner of such firm or a member of such association shall, in respect of the profits of the firm or association, be jointly and severally liable to assessment under section 14 of the Excess Profits Tax Act, 1940, and for the amount of tax payable, and all the provisions of the said Act shall, so far as may be, apply to any such assessment.” The Court then explained the effect of this provision and other related provisions, citing the learned judges of the Madras High Court. The Madras judges observed that the result of section 44, as amended by the Central Board of Revenue, is to extend the procedure applicable to an undissolved firm to a dissolved firm. Consequently, if two or three persons carried on business as a firm, the assessment could be made in the partnership’s name, and the persons who were partners during the chargeable accounting period would be jointly and severally liable to pay the tax in accordance with sub‑section (2) of section 14 read with section 44 of the Income Tax Act, as modified by the Central Board of Revenue. The Court further noted that section 63 of the Income‑Tax Act is also made applicable to proceedings under the Excess Profits Tax Act. Therefore, if during the chargeable accounting period the firm operated as an undissolved firm and later became dissolved, the provisions of section 44 would permit the assessment to be made as if the firm were still undissolved. Under section 63, a notice under section 13 may be issued to and served upon a partner of a firm. Section 63(2) provides that such notice or requisition, in the case of a firm or a Hindu undivided family, may be addressed to any member of the firm, to the manager, or to any adult male member of the family, and, in the case of any other association of persons, may be addressed to the principal officer thereof. Applying this to the present case, the Court held that even if the firm had become dissolved by the date a notice under section 13 was issued, the mechanism provided by the Act for serving notice under section 63 could be used by serving the notice on a partner. Thus, a notice to a partner is treated as notice to all partners. The Court concluded by referring to the observation of Chief Justice Chakravartti in Bose v. Manindra Lal, reinforcing the principle that notice to a partner suffices for the entire partnership.

In the judgment, the Court referred to the observations of Justice Goswami, noting that the assessment procedure for excess profits tax does not differentiate between a business that is currently operating and one whose profits pertain to a period before the firm was dissolved. The Court explained that when a firm is engaged in a running business, the assessment is made jointly against the persons who are actually carrying on the business. Conversely, when the business relates to a firm that has already been dissolved, the assessment is made jointly and severally against the partners of that firm. Because section 44 of the Excess Profits Tax Act, 1940, applies to the assessment of profits earned prior to dissolution, the assessment can still be made in the name of the partnership. The Court observed that this legislative scheme was the basis for the decision of the learned Judge in the Madras case, who held that even if the firm had formally dissolved by the time a notice under section 13 was issued, the mechanisms provided by sections 13 and 14 of the Act could still be invoked, and the partners would remain jointly and severally liable for the assessment under section 14 and for any tax determined to be payable. The Court concluded that the passages quoted accurately reflect the legal position created by the relevant provisions of the Excess Profits Tax Act, 1940. Accordingly, the Court held that the notice served on Thyagrajan Chettiar was valid, binding on the appellant, and that there was no ground to challenge the legality of the excess profits tax assessment.

Before addressing the validity of the assessment order dated 31 March 1951, the Court turned to a subsidiary issue concerning the computation of the business income of the managing agency of Muthappa & Co. For the first chargeable accounting period, namely the calendar year 1942, the income was calculated at Rs 1,02,219, and for the broken period from 1 January 1943 to 4 March 1943, it was calculated at Rs 6,387. These figures were identical to those used in the income‑tax assessment and were derived from the remuneration to which the firm was entitled under its managing‑agency agreement with Saroja Mills Ltd. The agreement provided that the mills would credit the remuneration to the firm’s accounts, although the mills did not actually disburse the amount in cash. The Court emphasized that the form of payment—cash or credit—did not affect the firm’s tax liability because the firm’s accounts were prepared on a mercantile (accrual) basis. Saroja Mills, however, contested that the managing agents had failed to fulfil certain obligations, specifically the extension of the mills by increasing the spindle capacity. The mills alleged that this failure caused them a loss of income, and consequently they transferred the amount of their cross‑claim for damages to a suspense account instead of crediting the full managing‑agency remuneration to the firm. The amount that remained unpaid and was therefore placed in the suspense account amounted to Rs 89,137.

The Court further noted that, at the time of the income‑tax assessment for the same period, Thyagrajan Chettiar, who acted as the managing partner of the firm, argued that because the mills had withheld remuneration of approximately Rs 89,000 and had not credited that sum to the managing agents, the withheld amount should not be treated as income of the firm for the assessment year. The Court rejected this objection, observing that the mills had never denied that the full sum of roughly Rs 1,00,000 was due to the firm and, in fact, had claimed to deduct the entire amount as a business expense. Consequently, the Court held that the full amount of Rs 1,00,000 had accrued to the firm and was proper to be included in the assessment of the firm’s income.

In this case, the Court noted that the managing agency remuneration that should have been paid to the firm was withheld, and the amount withheld amounted to Rs 89,137. At the time the Income Tax assessment for the same period was made, the managing‑partner of the firm, Thyagrajan Chettiar, who also participated in the tax proceedings, argued that because the mills had retained the remuneration of roughly Rs 89,000 and had not credited that sum to the managing agents, the retained amount should not be treated as income of the firm for the assessment year. The Court observed that this objection was rejected on the basis that the mills had never contested the liability for the whole sum of approximately Rs 1,00,000, and in fact the mills had claimed to deduct the entire amount as part of their business expenditure. Consequently, the Court held that the sum of about Rs 1,00,000 had accrued to the firm as its income and that the existence of a cross‑claim by the mills did not affect this accrual. The contention, which had been rejected by the Income Tax Officer, was presented to the Court as a ground for disputing the inclusion of the Rs 89,000 in the firm’s Excess Profits Tax assessment. The Court found no merit in the point raised. Counsel for the appellant referred to the decision of this Court in Commissioner of Income‑Tax, Madras v. K. R. M. T. T. Thiagaraja Chetty & Co. (1) and specifically to the observations on page 261. The Court considered that the cited decision did not support the appellant; rather, it was contrary to his position. Accordingly, there were no legal grounds to challenge the validity of the Excess Profits Tax assessment order dated 15 March 1951, and the Court held that the decision was binding on the business and on its owners, including the appellant. As a result, Writ Petition 130 of 1958 was dismissed. The Court then turned to the next issue, which arose in Civil Appeal 107 of 1956, namely whether the Excess Profits Tax assessed could be lawfully recovered from the appellant by invoking the collection machinery provided under section 46 of the Income Tax Act. Counsel for the appellant argued that sections 45 to 47 of the Income Tax Act, 1922, which authorize coercive recovery of income tax, undoubtedly applied to the recovery of Excess Profits Tax because those sections are incorporated in section 21 of the Excess Profits Tax Act as applicable provisions. By virtue of the assessment against the firm Muthappa & Co., the appellant had become liable to pay the assessed Excess Profits Tax, and the counsel maintained that the coercive process under section 46 should therefore be available for recovery.

The appellant contended that the coercive recovery procedure under section 46(2) of the Income‑Tax Act could not be applied to him, relying on two principal arguments. First, he asserted that he was not an “assessee” within the meaning of the Act but merely a “person liable to pay the tax” as described in section 29, which provides that the Income‑Tax Officer shall serve a notice of demand on the assessee or other person liable to pay the tax. The appellant argued that because no notice of demand under section 29 had been expressly addressed to and served upon him, he could not be deemed an “assessee in default” and consequently the tax owed could not be treated as an arrear that would permit the use of the coercive mechanism prescribed in section 46(2). Second, he maintained that the recovery provisions contained in sections 45 to 47, including section 46(2), were limited in their operation to “assessees” and “assessees in default” and did not extend to the class of “other persons liable to pay the tax.” He suggested that for such persons the only means of enforcement was the institution of a suit for recovery and the execution of a decree arising out of that suit. The Court, however, found it unnecessary to resolve the broader interpretative question of whether the terms “assessee” and “assessee in default” in sections 45 and 46 should be confined solely to “assessees” as distinguished from “other persons liable to pay tax” under section 29, or whether the word “assessee” in those sections should be read in accordance with its definition in section 2(2), which includes every person by whom income‑tax is payable. The Court affirmed that the appellant qualified as an “assessee.” Moreover, section 21 of the Excess Profits Tax Act contains a proviso stating that references to “assessee” shall be construed as references to a person to whose business the Act applies. Consequently, as a partner of the business to which the Act applied, the appellant was an “assessee” and not merely another person liable to pay tax. He also fell within the category of “assessee in default,” and the amount due became an arrear because a notice of demand under section 29 had been served on the managing partner, Thyagrajan Chettiar, a service that, by virtue of section 63, amounted to a notice to the appellant himself.

In this case the Court observed that the service of a notice to the managing partner, Thyagrajan Chettiar, was deemed by operation of section 63 of the Income‑Tax Act to be equivalent to serving the appellant personally. Accordingly, the Court held that the assessment proceedings that were concluded after a notice had been served on Thyagrajan Chettiar, who acted in the capacity of managing‑partner of Muthappa & Co., were binding upon the appellant himself. This determination eliminated any possibility of sustaining the argument that had been advanced suggesting that the notices were not binding on the appellant. The Court further found that the appellant fell squarely within the definition of an “assessee in default” as prescribed by section 46(1) of the Income‑Tax Act, and that the liability for tax together with the associated penalty represented an “arrear” under section 46(2). On the basis of these findings, the Court concluded that the authorities were fully justified in instituting proceedings for the recovery of the Excess Profits Tax. Moreover, the Court affirmed that the order of the High Court, which had dismissed the appellant’s petition seeking a writ of prohibition, was correct. Consequently, the appeal was rejected and dismissed with costs. The petition was also dismissed; however, because the appeal and the petition were heard together, the Court declined to award a separate costs order in respect of the petition. In sum, both the appeal and the petition were dismissed.