2015 (3) TMI 454 - HC - Income Tax

Protective assessment under Section 147 - ITAT drawing the conclusion that to avoid multiplicity of the proceedings on the same issue the order u/s 263 should be quashed - Held that - The very premise that there was protective assessment under Section 147 of the Income Tax Act is incorrect. The very foundation on the basis of which the ITAT has applied mind is found lacking in the matter. It is therefore clear that in the present circumstances, the ITAT ought to have considered the issue on merits. Other three appeals considered together with the present appeal had no bearing on the controversy. Hence, even if after remand in those appeals, the assessment orders grant benefit to the concerned assessee, that by itself does not eliminate need of application of mind on merits by the ITAT. We are, therefore, not in a position to agree with the contention of Advocate Shri C.J. Thakkar that because of subsequent assessment orders in favour of the assessee, remanding back the present appeal to the ITAT would be an empty formality.- Decided in favour of the appellant department.

Summary

Issues: Whether the ITAT was justified in quashing the order under Section 263 of the Income Tax Act without considering the merits of the case and if the subsequent assessment orders in related matters affect the present appeal.

Analysis:

1. Issue 1 - Protective Assessment under Section 147:
The appellant contended that the ITAT erred in quashing the order under Section 263 without appreciating the fact that there was no protective assessment under Section 147 of the Income Tax Act. The respondent argued that in related matters, protective assessments were made under Section 147, but the subsequent orders favored the assessee. However, the court found that the premise of protective assessment in the present matter was incorrect, and the ITAT should have considered the issue on its merits.

2. Issue 2 - Finality of Assessment Orders:
The appellant argued that the orders passed after remand by the ITAT are subject to further challenge and have not attained finality. It was contended that the consent given by the learned DR and the subsequent order of the ITAT based on that consent were unsustainable, raising a substantial question of law. The court held that the lack of foundation in the ITAT's decision necessitated a consideration of the issue on merits, despite favorable assessment orders in related appeals.

3. Conclusion and Direction:
The court disagreed with the respondent's argument that remanding the present appeal to the ITAT would be an empty formality due to subsequent assessment orders favoring the assessee in related matters. The court answered the substantial question of law in favor of the appellant department and directed the appeal to be placed back before the ITAT for fresh consideration in accordance with the law. The judgment emphasized the importance of considering each case on its merits and not solely relying on outcomes in related matters.