1 itl83.09.odt IN HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR. Income Tax Appeal No.83 of 2009. Commissioner of Income Tax II, Saraf Chambers, Sadar, Nagpur. Appellant. Versus M/s Jamnalal Sons Private Ltd., Baccharaj Bhavan, Wardha. Respondent. Shri Anand Parchure, Advocate for appellant. Shri C.J. Thakkar, Advocate for respondent. Coram : B.P. Dharmadhikari & A.P. Bhangale, JJ. nd Dated : 02 March, 2015. ORAL JUDGMENT [Per B.P. Dharmadhikari, J.] Heard Advocate Shri Anand Parchure for appellant and Advocate C.J. Thakar for respondent assessee. 2] Advocate Shri Anand Parchure has pressed question no.2 as substantial question of law. Said question reads as under : 2. Whether on facts and circumstances of Uploaded on - 04/03/2015 Downloaded on - 30/06/2020 18:03:06 2 itl83.09.odt case Hon ble ITAT is justified in law in drawing conclusion that to avoid multiplicity of proceedings on same issue order u/s 263 should be quashed without appreciating fact that no proceedings u/s 147 on this issue is initiated and even otherwise proceedings u/s 263 of I.T. Act and 147 of I.T. Act are independent proceedings. We have heard respective Counsel and we find that very premise that there was protective assessment under Section 147 of Income Tax Act is incorrect. Advocate Shri C.J. Thakkar, however, submitted that there were four matters considered together by Income Tax Appellate Tribunal, Nagpur [ITAT] and in three matters determination under Section 147 of Income Tax Act [for short, said Act ] on protective basis was done. He also adds that after remand by ITAT, fresh orders have been passed and benefit has been given to assessee. He also submits that said determination has attained finality and avoid exercise in futility present matter should also be dismissed as no substantial question of law arises. 3] Advocate Shri Parchure submits that said orders passed after remand by ITAT are subject to further challenge and therefore have not attained finality. He further states that as there was no such determination under Section 147 of said Act, in present Uploaded on - 04/03/2015 Downloaded on - 30/06/2020 18:03:06 3 itl83.09.odt matter, consent given by learned DR and order of ITAT on that basis is itself unsustainable and raises substantial question of law. 4] very foundation on basis of which ITAT has applied mind is found lacking in matter. It is therefore clear that in present circumstances, ITAT ought to have considered issue on merits. Other three appeals considered together with present appeal i.e. Income Tax Appeal No.264 of 2008 had no bearing on controversy. Hence, even if after remand in those appeals, assessment orders grant benefit to concerned assessee, that by itself does not eliminate need of application of mind on merits by ITAT. We are, therefore, not in position to agree with contention of Advocate Shri C.J. Thakkar that because of subsequent assessment orders in favour of assessee, remanding back present appeal to ITAT would be empty formality. Accordingly we answer substantial question of law in favour of appellant department. 5] appeal is placed back before ITAT for its fresh consideration in accordance with law. JUDGE JUDGE Deshmukh Uploaded on - 04/03/2015 Downloaded on - 30/06/2020 18:03:06 Commissioner of Income-tax-II, Nagpur v. Jamnalal Sons Private Ltd