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 3rd day of August, 2009 J U D G M E N T ---------------------- Ramachandran Nair,J. The question raised is whether the Tribunal was justified in allowing the appeal granting status to the assessee as firm as against the assessment as AOP when the issue stood remanded by the Commissioner of Income Tax in proceedings under Section 263 of the Act against which assessee had not filed the appeal. On going through the Tribunal's order we notice that though the assessee had not filed appeal against Section 263 order the status in which the assessment is made was raised as a ground in the appeal filed against revised assessment issued pursuant to Section 263 order. Further the Commissioner's order in the issue under Section 263 was only a remand order. On facts the Tribunal found justification for the firm's delay in filing the return because the managing partner was admitted in the hospital for cancer. We do not find any fault in the Tribunal's order because Tribunal was competent to reverse the order of the Commissioner passed under Section 263 if a separate appeal was filed against the same. Eventhough no appeal was filed ITA.798/09 2 separately by the assessee, it is seen that the assessee has challenged the said order while filing the appeal against the revised assessment. Therefore the ground raised is only technical and in view of the finding of fact by the Tribunal for justification of the assessee for filing return with delay we feel the status assigned by the Tribunal need not be disturbed by this Court in appeal. Consequently the appeal is dismissed. C.N.RAMACHANDRAN NAIR, JUDGE. C.K.ABDUL REHIM, JUDGE. okb