Ita/798/2009 Of The Commissioner Of Income Tax v. M/S.people's Radio Services

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 ITA.No. 798 of 2009() --------------------- ITA.451/COCH/2006 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT: --------------------------- THE COMMISSIONER OF INCOME TAX, KANNUR. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): RESPONDENT: ------------------------- M/S.PEOPLE'S RADIO SERVICES, MAIN ROAD, TELLICHERY. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 03/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM, JJ. ----------------------------------- I.T.A. No.798 of 2009 -------------------------------------- Dated this the 3[rd] day of August, 2009 J U D G M E N T---------------------- Ramachandran Nair,J. The question raised is whether the Tribunal was justified inallowing the appeal granting status to the assessee as firm asagainst the assessment as AOP when the issue stood remandedby the Commissioner of Income Tax in proceedings underSection 263 of the Act against which assessee had not filed theappeal. On going through the Tribunal's order we notice thatthough the assessee had not filed appeal against Section 263order the status in which the assessment is made was raised as aground in the appeal filed against revised assessment issuedpursuant to Section 263 order. Further the Commissioner'sorder in the issue under Section 263 was only a remand order.On facts the Tribunal found justification for the firm's delay infiling the return because the managing partner was admitted inthe hospital for cancer. We do not find any fault in the Tribunal'sorder because Tribunal was competent to reverse the order ofthe Commissioner passed under Section 263 if a separate appealwas filed against the same. Eventhough no appeal was filed separately by the assessee, it is seen that the assessee haschallenged the said order while filing the appeal against therevised assessment. Therefore the ground raised is onlytechnical and in view of the finding of fact by the Tribunal forjustification of the assessee for filing return with delay we feelthe status assigned by the Tribunal need not be disturbed by thisCourt in appeal. Consequently the appeal is dismissed. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb