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 FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 ITA.No. 1558 of 2009() ---------------------- ITA.12/COCH/2004 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT: ----------------------------------------- THE COMMISSIONER OF INCOME TAX, (CENTAL), COCHIN. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): --------------- M/S.HEERA CONSTRUCTION COMPANY PRIVATE LTD., 113, CITI CENTRE, PATTO PLAZA, PANAJI, GOA. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & C. K. ABDUL REHIM, JJ. -------------------------------------------- I.T.A. No. 1558 OF 2009 -------------------------------------------- Dated this the 28th day of August, 2009 JUDGMENT Ramachandran Nair, J. This is an appeal filed by the department challenging the order of the Tribunal whereby the Tribunal set aside the order of the CIT (Appeals), declining to entertain the appeal on account of non-payment of admitted tax. Before the Tribunal the assessee produced proof for payment of full amount of tax , though after rejection of the appeal by the CIT (Appeals). In view of payment of admitted tax, the defect in the original appeal got cured and therefore the Tribunal set aside the order of the CIT (Appeals), and remanded the case for considering the appeal on merits. Even though standing counsel for the appellant submitted that the order of the Tribunal is not maintainable, we are of the view that the contention is only technical because even if we interfere with the order of the Tribunal, assessee is still free to file fresh appeal with delay condonation petition before CIT (Appeals) and we are sure that there is every likelihood of delay being condoned. In the 2 circumstances, the department's filing this appeal is only a futile exercise . We therefore reject this appeal. (C.N.RAMACHANDRAN NAIR) Judge. (C. K. ABDUL REHIM) Judge. kk 3