Shri K Mehfuz Ali Khan Partner M/s Devi Enterprises , Andhra Pradesh V. Deputy Commissioner of Income Tax central Circle-1(3), Bangalore

ITA 954/BANG/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 9958 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K V ARVIND SD
• Assessee Lawyers: MAYANK JAIN
• Keywords: Reason to believe
• Section: 143(3); 147; 148; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORESHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER APPEAL NO. APPELLANT ASSESSMENTYEAR S RESPONDENT ITA NO. 478/BANG/2017 SHRI MADHU KUMAR VARMA, S/O. SUBBA RAJU, NEAR PEDDARAJU CAMP, YANIGNURHOBLI RAMACHANDRAPURAM, CAMP KEMPLI, HOSPET TALUK, BELLARY DIST. PAN: AGEPV3217E 2010-11 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1 (3), BANGALORE. ITA NO. 494/BANG/2017 SHRI K. MEHFUZ ALI KHAN, 2 ND FLOOR, DOOR NO. 231, WARD NO. 22,6 TH CROSS, M.V. NAGAR, KAPPAGAL ROAD, BELLARY 583 104. PAN: ANNPM3470G 2010-11 ITA NOS. 919, 920, 921, 922 & 923/BANG/2017 SHRI K. MEHFUZ ALI KHAN, 2 ND FLOOR, DOOR NO. 231, WARD NO. 22,6 TH CROSS, M.V. NAGAR, KAPPAGAL ROAD, BELLARY 583 104. PAN: ANNPM3470G 2009-10, 2010-11 & 2011-12 ITA NO. 954/BANG/2017 SHRI K. MEHFUZ ALI KHAN, PARTNER M/S. DEVI ENTERPRISES, NO. 1050/H, RAILWAY GRAND TWINLANE TIMMANCHERLA GUNTAKAL, A.P. 515 801. PAN: AAQFM5466J 2010-11 ASSESSEE BY : SHRI MAYANK JAIN, ADVOCATE RE VENUE BY : SHRI K.V. ARVIND, SD. COUNSEL DATE OF HEARING : 1 1 . 0 9 .2018 DATE OF PRONOUNCEMENT : 24 . 0 9 .2018 INTERIM ORDER PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER OUT OF THIS BUNCH OF EIGHT APPEALS, ONE APPEAL WAS FILED IN FEBRUARY 2017, ONE IN MARCH, 2017 AND REMAINING SIX APPEALS WERE FILED IN APRIL, 2017. ON THE REQUEST LETTER DATED 08.12.2017 FILED BY THE LEARNE D AR OF THE ASSESSEE, ALL ITA NOS. 478, 494, 919 TO 923 & 954/BANG/2017 PAGE 2 OF 8 THESE APPEALS WERE CLUBBED IN A BENCH AND WERE FI XED FOR HEARING ON 27.12.2017. ON THIS DATE, A BENCH DID NOT FUNCTIO N AND HENCE, THE HEARING WAS ADJOURNED TO 22.03.2018. ON THIS DATE I.E. ON 2 2.03.2018 ALSO, A BENCH DID NOT FUNCTION AND HENCE, THE HEARING WAS AGAIN A DJOURNED TO 26.06.2018. ON 26.06.2018, THESE APPEALS WERE PARTLY HEARD. MR. C. H. SUNDAR RAO, CIT DR WAS PRESENT ON BEHALF OF THE REVENUE AND MR. MADHU JAIN, ADVOCATE AND AR OF THE ASSESSEE APPEARED ON BEHALF OF THE ASSESSEE. HE ARING WAS ADJOURNED TO 16.07.2018. ON 16.07.2018, MR. DILIP, JUNIOR TO SHR I K. V. ARVIND, STANDING COUNSEL FOR REVENUE APPEARED AND SOUGHT ADJOURNMENT . FOR THE ASSESSEE, MS HEMA S., ADVOCATE APPEARED. ON THE REQUEST OF MR. D ILIP, JUNIOR TO SHRI K. V. ARVIND, STANDING COUNSEL FOR REVENUE, HEARING WAS A DJOURNED TO 26.07.2018. ON 26.07.2018 ALSO, ON THE REQUEST OF MR. DILIP, JU NIOR TO SHRI K. V. ARVIND, STANDING COUNSEL FOR REVENUE, HEARING WAS ADJOURNED TO 27.08.2018. ON 27.08.2018 ALSO, ON THE REQUEST OF SHRI K. V. ARVIN D, STANDING COUNSEL FOR REVENUE THAT HE WAS NOT WELL, HEARING WAS ADJOURNED TO 11.09.2018. 2. IN THE MEAN TIME, ON 23.07.2018, SENIOR STANDING COUNSEL FOR REVENUE, FILED THREE APPLICATIONS WITH THE REGISTRY OF ITAT SEEKIN G DEFERMENT OF HEARING OF APPEAL IN THE CASE OF MADHU KUMAR VARMA VS. DCIT IN ITA NO. 478/BANG/2017, IN THE CASE OF SHRI K MEHFUZ ALI KHAN IN ITA NO. 49 4/BANG/2017 AND IN THE CASE OF SHRI K MEHFUZ ALI KHAN, PARTNER M/S DEVI EN TERPRISES IN ITA NO. 954/BANG/2017 BUT ON 26.07.2018 AND ON 27.08.2018 WHEN MR. DILIP AND SHRI K. V. ARVIND, STANDING COUNSEL FOR REVENUE APPEARED FOR SEEKING ADJOURNMENT, NO MENTION WAS MADE ABOUT THESE APPLICATIONS DATED 23.07.2018 SEEKING DEFERMENT OF HEARING. ON 11.09.2018, SHRI K. V. ARV IND, STANDING COUNSEL FOR REVENUE APPEARED AND SUBMITTED A COPY OF THREE JUDG MENTS OF HONBLE KARNATAKA HIGH COURT ALL DATED 08.08.2018 IN WRIT P ETITION NOS. 31928 31929 OF 2018, 31931 31932 OF 2018 AND 31935 31936 OF 2018 AND POINTED OUT THAT IN THESE JUDGMENTS, HONBLE KARNATAKA HIGH COU RT HAS DIRECTED THE TRIBUNAL TO FIRST DECIDE THESE THREE APPLICATIONS OF REVENUE REGARDING DEFERMENT OF HEARING IN ITA NO. 478/BANG/2017,494/BANG/2017 & 95 4/BANG/2017AND TILL SUCH APPLICATIONS ARE DECIDED ON MERIT, THE TRIBUNA L SHALL NOT PROCEED WITH THE HEARING OF ITA NO. 478/BANG/2017, 494/BANG/2017 AND 954/BANG/2017. ITA NOS. 478, 494, 919 TO 923 & 954/BANG/2017 PAGE 3 OF 8 3. AT THIS JUNCTURE, THE BENCH POINTED OUT AS TO WH Y NO MENTION WAS MADE ABOUT THESE APPLICATIONS DATED 23.07.2018 SEEKING DEFERME NT OF HEARING OF THREE APPEALS BY MR. DILIP AND SHRI K. V. ARVIND, STANDIN G COUNSEL FOR REVENUE APPEARED ON TWO OCCASIONS I.E. ON 26.07.2018 AND 27 .08.2018. THE BENCH ALSO OBSERVED THAT WHEN SOME APPLICATION IS FILED IN THE REGISTRY, THE SAME CAN BE ACTED UPON ONLY WHEN IT REACHES TO THE FILE AND THE ATTENTION OF THE BENCH IS DRAWN TO SUCH APPLICATION BUT IN THE PRESENT CASE, ALTHOUGH MR. DILIP, JUNIOR TO SHRI K. V. ARVIND AND MR. K.V. ARVIND, STANDING COU NSEL FOR REVENUE HIMSELF APPEARED ON TWO DATES I.E. ON 26.07.2018 AND 27.08. 2018 BUT NO MENTION WAS MADE ABOUT THESE APPLICATIONS. THE BENCH OBSERVED T HAT HAD MENTION BEEN MADE OF THESE APPLICATIONS ON EARLIER OCCASIONS, TH E SAME WOULD HAVE BEEN DECIDED MUCH EARLIER AND THE PRECIOUS TIME OF HONB LE HIGH COURT COULD HAVE BEEN SAVED. THE ACTION OF THE REVENUE OR THE STAND ING COUNSEL WAS UNCALLED FOR AS IT AN ABUSE OF THEPROCESS OF LAW. WE ARE UN ABLE TO UNDERSTAND AS TO HOW THE REVENUE HAS APPROACHED THE HONBLE HIGH COURT F OR DEFERMENT OF HEARING OF THE APPEALS WITHOUT RAISING THE ISSUE BEFORE THE TR IBUNAL DURING THE COURSE OF HEARING. WE STRONGLY DEPRECATE THE ACTION OF THE R EVENUE AND THE STANDING COUNSEL AND WE HOPE THAT IN FUTURE, THE REVENUE WIL L NOT ADOPT SUCH MALPRACTICE IN ORDER TO OBTAIN SOME FAVOURABLE ORDER FROM THE H ONBLE HIGH COURT. HOWEVER THE BENCH ASKED BOTH SIDES TO ARGUE THESE THREE APP LICATIONS OF THE REVENUE REGARDING DEFERMENT OF HEARING IN ITA NOS. 478/BANG /2017, 494/BANG/2017 AND 954/BANG/2017. 4. LEARNED SENIOR COUNSEL SHRI K. V. ARVIND, STANDI NG COUNSEL FOR REVENUE MADE DETAILED ARGUMENTS IN THIS REGARD. FINALLY, HE SUBMITTED THAT ALL THE IMPUGNED ORDERS OF CIT (A) IN ITA NO. 478/BANG/2017 , 494/BANG/2017 AND 954/BANG/2017 ARE EX PARTE QUA THE ASSESSEE AS WELL AS REVENUE AND IN THESE IMPUGNED ORDERS OF CIT(A), THERE IS NO DECISION ON MERIT AND THE APPEALS OF THE ASSESSEE WERE DISMISSED BY HIM ON THIS BASIS ALONE THAT THERE IS UNREASONABLE DELAY IN FILING OF THESE APPEALS BEFORE CIT (A) AND THE DELAY HAS NOT BEEN PROPERLY EXPLAINED. HE SUBMITTED THAT UNDER THESE FACTS, ONLY THIS ASPECT CAN BE DECIDED BY THE TRIBUNAL AS TO WHETHER THE DELAY IN FILING THESE APPEALS BEFORE LEARNED CIT (A) CAN BE CONDONED OR NOT AND IF IT IS HELD THAT THE DELAY SHOULD ITA NOS. 478, 494, 919 TO 923 & 954/BANG/2017 PAGE 4 OF 8 BE CONDONED THEN THE MATTER HAS TO GO BACK TO CIT ( A) FOR A DECISION ON MERIT AND THE TRIBUNAL CANNOT DECIDE THE ISSUE ON MERIT I N THE ABSENCE OF ANY DECISION ON MERIT BY CIT (A). HE FILED WRITTEN SUBM ISSIONS DATED 18.09.2018 ON 19.09.2018 ALONG WITH COPY OF SEVEN JUDICIAL PRONOU NCEMENTS. THE WRITTEN SUBMISSIONS FILED BY HIM ARE REPRODUCED HEREIN BELO W:- 1. SEARCH UNDER SECTION 132 OF THE ACT WAS CONDUCT ED IN THE RESIDENTIAL PREMISES OF THE ASSESSEE AND INCRIMINAT ING MATERIAL WERE FOUND AND SEIZED. THE ASSESSEE IS CLOSE ASSOCIATE O F SRI GALI JANARDHAN REDDY. ASSESSMENT WAS COMPLETED UNDER SEC TION 153C OF THE ACT DATED 31/3/2013. ASSESSMENT WAS MADE PROTEC TIVELY IN THE HANDS OF THE ASSESSEE AND SUBSTANTIAL IN THE HANDS OF SHRI GALI JANARDHAN REDDY. 2. THE ASSESSEE BEING AGGRIEVED AGAINST THE ORDER O F PROTECTIVE ASSESSMENT PREFERRED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX - APPEALS. THE APPELLATE COMMISSIONER VIDE ORDE R DATED 12/1/2017 REJECTED THE APPEAL AS SATISFACTORY EXPLA NATION WAS NOT OFFERED FOR CONDONATION OF DELAY. THE APPELLATE COM MISSIONER WITHOUT GOING INTO THE MERITS, HAS ONLY DISMISSED T HE APPEAL ON THE GROUND OF DELAY. 3. THE ASSESSEE BEING AGGRIEVED AGAINST THE ORDER O F THE APPELLATE COMMISSIONER HAS PREFERRED THE ABOVE APPEAL BEFORE THIS HON'BLE COURT WITH FURTHER DELAY. 4. IT IS SUBMITTED THAT THE SUBSTANTIVE ASSESSMENT MADE IN THE HANDS OF SHRI GALI JANARDHAN REDDY WAS SUBJECT MATTER OF APPEAL BEFORE THIS HON'BLE TRIBUNAL IN ITA 1459/BANG/2014. THIS H ON'BLE TRIBUNAL BY ORDER DATED 17/10/2016 SETASIDE THE ASS ESSMENT MADE UNDER SECTION 153C OF THE ACT BY HOLDING THAT THE S AME IS NOT IN COMPLIANCE OF THE PROVISIONS OF SECTION 153C OF THE ACT. 5. IT IS SUBMITTED THAT THE ASSESSMENT OF SRI GALI JANARDHAN REDDY FOR THE ASSESSMENT YEAR 2010-11 WAS REOPENED BY ISS UE OF NOTICE UNDER SECTION 147 OF THE ACT AND ASSESSMENT WAS CON CLUDED BY ORDER DATED 29/12/2017. THE PROTECTIVE ADDITION IS IN THE CASE OF THE ASSESSEE AND SUBSTANTIAL ADDITIONS IN THE CASE OF S RI GALI JANARDHAN REDDY. SHRI. GALI JANARDHAN REDDY BEING AGGRIEVED A GAINST THE ORDER OF ASSESSMENT DATED 29/12/2017 HAS PREFERRED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX - APPEALS AND THE SA ME IS PENDING CONSIDERATION. 6. IT IS SUBMITTED THAT THE PROTECTIVE ASSESSMENT I S MADE AS PER THE LAW LAID DOWN BY THE SUPREME COURT IN THE CASE OF L ALJI HARIDAS 43 ITR 387, WHEREIN IT IS HELD THAT WHEN THERE WAS A D OUBT AS TO WHICH ITA NOS. 478, 494, 919 TO 923 & 954/BANG/2017 PAGE 5 OF 8 PERSON AMONG TWO WAS LIABLE TO BE ASSESSED, PARALLE L PROCEEDINGS MIGHT BE STARTED AGAINST BOTH. THE ISSUE WAS AGAIN CONSIDERED BY KERALA HIGH COURT IN THE CASE OF K P VARKEY 304 ITR 127, WHEREIN IT IS HELD THAT THE PROTECTIVE ASSESSMENT CANNOT BE SETASIDE MERELY ON THE GROUND THAT SUBSTANTIVE ASSESSMENT MADE HAS BEE N SETASIDE. IN THE FACTS BEFORE THE KERALA HIGH COURT, THE SUBSTAN TIVE ASSESSMENT WAS SET ASIDE AND REMANDED TO THE ASSESSING OFFICER AND IN THE CIRCUMSTANCES IT WAS HELD THAT THE TRIBUNAL HAS TO WAIT TILL THE ASSESSING OFFICER COMPLETES THE SUBSTANTIVE ASSESSM ENT AS DIRECTED BY THE DIVISION BENCH OR IN ALTERNATIVELY TO DISPOS E OF THE APPEALS FILED BY THE DEPARTMENT AGAINST THE ORDERS PASSED B Y THE FIRST APPELLATE AUTHORITY ON MERITS. HOWEVER, THE SECOND OPTION PROVIDED BY THE KERALA HIGH COURT TO DISPOSE OF THE APPEAL B Y THE TRIBUNAL ON MERITS WOULD NOT ARISE IN THE PRESENT CASE AS THE A PPEAL BEFORE THIS HON'BLE TRIBUNAL IS ONLY AGAINST THE REJECTION OF C ONDONATION OF DELAY. HENCE, AS HELD BY THE KERALA HIGH COURT, THE APPEAL IN THE PROTECTIVE ASSESSMENT HAS TO AWAIT THE OUTCOME OF T HE SUBSTANTIVE ASSESSMENT PENDING BEFORE THE APPELLATE COMMISSIONE R. 7. IT IS SUBMITTED THAT ITAT INDORE BENCH IN THE CA SE OF BHATIYA MOTORS STORES 288 ITR 31, HAS HELD THAT SUBSTANTIVE ASSESSMENT AND THE PROTECTIVE ASSESSMENT NEED NOT BE SIMULTANEOUS AND IT CAN BE DONE SEPARATELY. IN VIEW OF THE ABOVE, THE CONTENTI ON OF THE ASSESSEE THAT IN VIEW OF THE SUBSTANTIVE ASSESSMENT BEING MA DE UNDER SECTION 148 OF THE ACT, THE PROTECTIVE ASSESSMENT ALSO HAS TO BE MADE UNDER SECTION 148 OF THE ACT IS INCORRECT. 8. IT IS SUBMITTED THAT THE DELHI HIGH COURT IN THE CASE OF MAHINDRA FINLEASE LTD 343 ITR 464, HAS REITERATED THE CONCEP T AND REQUIREMENT OF PROTECTIVE ASSESSMENT AND THE SAME H AS BEEN HELD TO PROTECT THE LIMITATION, PROTECTIVE ASSESSMENT IS PE RMITTED. KIND ATTENTION OF THIS HONORABLE TRIBUNAL IS INVITED TO PARA-11, 12, 13, 14 AND 15 OF THE JUDGMENT. 9. IT IS SUBMITTED THAT HIGH COURT OF ALLAHABAD IN THE CASE OF BHAGMALSAUDAGARMAL 267 ITR 637 HAS REITERATED THE C ONCEPT OF PROTECTIVE ASSESSMENT IN ORDER TO AVOID TIME BARRIN G. RELIANCE IS PLACED ON PARA-6 AND 7 OF THE JUDGMENT. 10. IT IS SUBMITTED THAT GUJARAT HIGH COURT IN THE CASE OF SRI SURENDRAGULABCHAND MODI 140 ITR 517 HAS HELD THAT D EFERMENT OF PROTECTIVE ASSESSMENT DURING PENDENCY OF THE APPEAL ON THE SUBSTANTIVE ASSESSMENT TO AWAIT THE OUTCOME OF THE SUBSTANTIVE APPEAL WAS TO BE GRANTED AND THE CONTRARY VIEW OF T HE TRIBUNAL WAS SET ASIDE. 11. IT IS SUBMITTED THAT THE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT VS SMT.MEENAKSHI DEVI AVARU AND OTHERS IN WTA 1 /2015 AND CONNECTED MATTERS DATED 30/8/2018 HAS RECOGNISED TH E PROTECTIVE ITA NOS. 478, 494, 919 TO 923 & 954/BANG/2017 PAGE 6 OF 8 ASSESSMENT IN THE ABSENCE OF SUBSTANTIVE ASSESSMENT AND UPHELD THE PROTECTIVE ASSESSMENT AND THE ASSESSING OFFICER WAS GRANTED LIBERTY TO MAKE SUBSTANTIVE ASSESSMENTS IN THE CASE OF THE ASSESSEE (EARLIER PROTECTIVE ASSESSMENT MADE). 12. IT IS SUBMITTED THAT IN VIEW OF THE ABOVE LEGAL POSITION AND ALSO THE OBJECT BEHIND THE CONTEMPLATION OF PROTECTIVE A SSESSMENT BEING THE TO AVOID THE ASSESSMENTS BEING TIME BARRED, IF THE CONTENTION OF THE ASSESSEE IS TO BE ACCEPTED THAT SUBSTANTIVE ASS ESSMENT WAS MADE UNDER SECTION 148 OF THE ACT AND HENCE PROTECTIVE A SSESSMENT ALSO HAS TO BE MADE UNDER SECTION 148 OF THE ACT, THE EN TIRE PURPOSE AND OBJECT OF CONTEMPLATING PROTECTIVE ASSESSMENT BY SU PREME COURT AND OTHER HIGH COURTS WOULD BE DEFEATED. 13. THE APPEAL HAS TO BE DEFERRED BY THIS HON'BLE T RIBUNAL AWAITING THE OUTCOME OF THE APPEAL PENDING BEFORE THE APPELL ATE COMMISSIONER ON THE SUBSTANTIVE ASSESSMENT IN THE C ASE OF SRI GALI JANARDHAN REDDY FOR THE REASON THAT IN THE EVENT OF A FINDING IS RECORDED IN THE CASE OF SRI GALI JANARDHAN REDDY TH AT IN VIEW OF THE ADDITION BEING ON THE BASIS OF THE SEIZED MATERIAL FOUND IN THE CASE OF THE ASSESSEE, THE SAME AS TO BE ASSESSED IN THE CASE OF THE ASSESSEE AND NOT IN THE CASE OF SRI GALI JANARDHAN REDDY, IF THIS HON'BLE TRIBUNAL DISPOSES OFF THE APPEAL ON THE PROTECTIVE ASSESSMENT, THE REVENUE WOULD BE LEFT WITH NO REMEDY AND THE ENTIRE PURPOSE AND OBJECT OF THE APEX COURT CONTEMPLATING PROTECTIVE A SSESSMENT WOULD BE DEFEATED AND THE SAME WOULD BE CONTRARY TO THE L AW LAID DOWN BY THE APEX COURT AND THE KERALA HIGH COURT REFERRED T O ABOVE. 14. IT IS SUBMITTED THAT IF THE REQUEST OF THE ASSE SSEE TO DISPOSE OF THE APPEAL ON THE PROTECTIVE ASSESSMENT WITHOUT AWAITIN G THE OUTCOME OF THE SUBSTANTIVE APPEAL IS ACCEPTED, IT WOULD AMOUNT TO PUTTING THE CART BEFORE THE HORSE WHICH IS NOT PERMISSIBLE AND CONTRARY TO THE LAW LAID DOWN BY THE SUPREME COURT AND OTHER HIGH C OURT IN THE JUDGMENTS REFERRED TO ABOVE. 15. IT IS FURTHER SUBMITTED THAT IN VIEW OF THE ADD ITION BEING MADE ON PROTECTIVE BASIS, THERE IS NO RECOVERY IN RESPECT O F THE PROTECTIVE ASSESSMENT BEING INITIATED BY THE REVENUE AND THE A SSESSEE HAS NO HARM OR PREJUDICE IN DEFERRING THE MATTER AWAITING THE OUTCOME OF THE APPEAL IN THE CASE OF SRI GALI JANARDHAN REDDY, WHICH IS SUBSTANTIVE. 16. WHEREFORE, IT IS RESPECTFULLY PRAYED THAT THIS HON'BLE TRIBUNAL MAY BE PLEASED TO DEFER THE HEARING OF THE ABOVE AP PEAL AWAITING ADJUDICATION OF THE SUBSTANTIVE APPEAL BY THE COMMI SSIONER OF INCOME TAX-APPEALS IN CONFORMITY WITH THE LAW LAID DOWN BY THE SUPREME COURT AND OTHER HIGH COURT IN THE ABOVE REFERREDJUDGMENTS AND ALSO IN THE INTEREST OF JUSTI CE AND EQUITY. ITA NOS. 478, 494, 919 TO 923 & 954/BANG/2017 PAGE 7 OF 8 5. THE LD. COUNSEL FOR THE ASSESSEE HAS STRONGLY OB JECTED TO THE DEFERMENT OF HEARING WITH THE SUBMISSION THAT SUBSTANTIAL AND PR OTECTIVE ASSESSMENT CAN BE MADE AT THE TIME OF COMPLETING THE ORIGINAL ASSESSM ENT AND THEY WILL MOVE TOGETHER BEFORE THE APPELLATE AUTHORITIES BUT IN TH E PRESENT CASE, THE SUBSTANTIAL ASSESSMENT WAS KNOCKED DOWN BY THE TRIBUNAL ON LEGA L GROUND AND THE REVENUE HAS INITIATED FRESH ACTION OF REOPENING ASS ESSMENT U/S. 148 OF THE ACT AND THEREFORE, THERE IS NO NEXUS BETWEEN THE PRESEN T PROTECTIVE ASSESSMENT AND THE SUBSTANTIVE ADDITION IN THE ASSESSMENT FRAM ED CONSEQUENT TO THE REOPENING OF THE ASSESSMENT U/S. 143(3) R.W.S. 147 OF THE ACT. THE LD. COUNSEL OF THE ASSESSEE FURTHER CONTENDED THAT THE PARAMETE RS FOR REOPENING OF THE ASSESSMENT ARE ENTIRELY DIFFERENT THAN THE ORIGINAL ASSESSMENT COMPLETED U/S. 143(3) OF THE ACT. HE FURTHER ARGUED THAT ORIGINAL ASSESSMENT WAS COMPLETED U/S. 153C AND THE ASSESSMENT WAS KNOCKED DOWN BY TH E TRIBUNAL ON LEGAL GROUND AND THE ORDER OF THE TRIBUNAL HAS NOT BEEN C HALLENGED BY THE REVENUE. IT IS FURTHER CONTENDED THAT WHILE REOPENING THE AS SESSMENT, THE ASSESSING OFFICER HAS TO FORM THE REASON TO BELIEVE THAT INCO ME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. WHILE COMPLETING THE ASSESSMEN T U/S. 147 OF THE ACT, THE PROTECTIVE ASSESSMENT CANNOT BE MADE AS ASSESSM ENT WAS REOPENED ON THE GROUND OF CERTAINTY AND NOT ON PRESUMPTIONS. T HEREFORE, THE HEARING SHOULD NOT BE DEFERRED ON THE GROUND THAT APPEAL AGAINST T HE ORDER PASSED U/S. 147 IS PENDING BEFORE CIT (A). 6. WE HAVE CONSIDERED THE ENTIRE FACTS AND RIVAL SU BMISSIONS IN RESPECT OF THE REQUEST OF THE REVENUE REGARDING DEFERMENT OF HEARI NG OF THESE APPEALS. UNDISPUTEDLY, THE SUBSTANTIAL ASSESSMENT FRAMED U/S . 153C HAS BEEN KNOCKED DOWN BY THE TRIBUNAL ON LEGAL GROUNDS AND REVENUE H AS NOT CHALLENGED THAT TRIBUNAL ORDER BEFORE HONBLE HIGH COURT AND HENCE, THAT ORDER HAS ATTAINED FINALITY. SO FAR AS RELEVANCE OF PROTECTIVE ASSESS MENT WITH THE ASSESSMENT FRAMED CONSEQUENT TO THE REOPENING OF THE EARLIER A SSESSMENT U/S. 147 IS CONCERNED, PRIMA FACIE WE ARE NOT CONVINCED WITH TH E ARGUMENTS OF LD. DR BUT AT THIS STAGE, WE DO NOT WANT TO EXPRESS OUR OPINIO N ON THIS. IT IS ALSO IMPORTANT TO NOTE THAT IN THE INSTANT CASE, THE CIT (A) HAS D ISMISSED ALL THE APPEALS BEING BARRED BY LIMITATION. THE CIT (A) DID NOT ADJUDICA TE THE ISSUES ON MERIT AND THEREFORE, WE ARE OF THE VIEW THAT FIRST OF ALL, IT SHOULD BE DECIDED AS TO WHETHER ITA NOS. 478, 494, 919 TO 923 & 954/BANG/2017 PAGE 8 OF 8 THE CIT (A) WAS JUSTIFIED IN DISMISSING THESE APPEA LS BY NOT CONDONING THE DELAY IN FILING OF THE APPEALS. ONCE IT IS DECIDED THAT THERE WAS JUSTIFIABLE REASONS FOR THE DELAY IN FILING OF THE APPEALS AND THE CIT (A) OUGHT TO HAVE CONDONED THE DELAY, THE MATTER WOULD BE REQUIRED TO BE SENT BACK TO CIT (A) FOR ADJUDICATION OF THE APPEAL ON MERIT. IN ANY CASE, THE APPEALS ON MERIT CANNOT BE ADJUDICATED IN THE ABSENCE OF THE PROPER FINDING S OF THE FIRST APPELLATE AUTHORITY. WE ARE UNABLE TO UNDERSTAND AS TO WHY T HE REVENUE HAS APPROACHED HONBLE HIGH COURT FOR DEFERMENT OF THE HEARING OF THE APPEALS AND WASTED ITS PRECIOUS TIME WHERE THE PRESENT APPEALS ARE TO BE D ISPOSED OF ONLY ON THE POINT AS TO WHETHER THE CIT(A) IS RIGHT IN DISMISSING THE APPEAL BY NOT CONDONING THE DELAY. IN THE LIGHT OF THESE FACTS, WE DO NOT FIND ANY MERIT IN THE APPLICATION FOR DEFERMENT OF THE HEARING OF THE APPEALS MOVED BY TH E REVENUE. ACCORDINGLY, WE DISMISS THE SAME AND DIRECT THE PARTIES TO ADVAN CE THEIR ARGUMENTS ON THIS POINT AS TO WHETHER CIT (A) WAS JUSTIFIED IN DISMIS SING THE APPEALS BY NOT CONDONING THE DELAY ON THE NEXT DATE OF HEARING ALR EADY FIXED ON 03.10.2018. 7. IN THE RESULT, THE THREE APPLICATIONS OF THE REV ENUE FOR DEFERMENT OF HEARING ARE DISMISSED INTERIM ORDER IS PRONOUNCED IN THE OPEN COURT ON TH E DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 24 TH SEPTEMBER, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.