ORAL JUDGMENT [ Per B.P. Dharmadhikari, J.] Heard Advocate Shri Anand Parchure for the appellant and Advocate C.J. Thakar for the 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 the circumstances of the case the Hon’ble ITAT is justified in law in drawing the conclusion that to avoid multiplicity of the proceedings on the same issue the order u/s 263 should be quashed without appreciating the fact that no proceedings u/s 147 on this issue is initiated and even otherwise the proceedings u/s 263 of the I.T. Act and 147 of the I.T. Act are independent proceedings.” We have heard the respective Counsel and we find that the very premise that there was protective assessment under Section 147 of the Income Tax Act is incorrect. Advocate Shri C.J. Thakkar, however, submitted that there were four matters considered together by the Income Tax Appellate Tribunal, Nagpur [ITAT] and in three matters the determination under Section 147 of the Income Tax Act [for short, ’the said Act’] on protective basis was done. He also adds that after remand by ITAT, the fresh orders have been passed and the benefit has been given to the assessee. He also submits that the 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 the 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 the said Act, in the present matter, the consent given by learned DR and the order of ITAT on that basis is itself unsustainable and raises the substantial question of law. 4. 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 i.e. Income Tax Appeal No.264 of 2008 had no bearing on the controversy. 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 i.e. Income Tax Appeal No.264 of 2008 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. Accordingly we answer the substantial question of law in favour of the appellant department. 5. The appeal is placed back before the ITAT for its fresh consideration in accordance with law.