HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 625/2011 COMMISSIONER OF INCOME TAX, JAIPUR-II ,JAIPUR Appellant Versus M/s Choudhary and Bros, Village Ladhana, Tehsil Phagi, Jaipur Respondent Connected With D.B. Income Tax Appeal No. 249 / 2012 Commissioner of Income Tax, Jaipur-III, Statue Circle, C-Scheme, Jaipur Appellant Versus M/s Choudhary and Bros, Village Ladhana, Tehsil Phagi, Jaipur Respondent D.B. Income Tax Appeal No. 63/2017 Pr. Commissioner of Income Tax, Jaipur-III, Statue Circle, C- Scheme, Jaipur Appellant Versus M/s Choudhary & Brothers, Village Ladana, Phagi, Jaipur (Raj.) Respondent For Appellant(s) : Mr. Daksh Pareek for Mr. Sameer Jain For Respondent(s) :HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Order 12/09/2017 In these appeals common questions of law and facts (2 of 3) [ ITA-625/2011] are involved, hence, they are decided by this common judgment. 1. By way of these appeals, appellant has assailed judgment and order of Tribunal whereby Tribunal has partly allowed appeals of assessee. 2. This court while admitting matter has framed following substantial questions of law:- In DBITA No. 625/2011 Whether Hon ble ITAT was justified and right in law in directing assessing officer to re- compute income at net profit rate of 11.5% instead of discussing disallowances under specific heads and further by placing reliance upon preceding year rates which were also under dispute? In DBITA No. 249/2012 i). Whether Hon ble ITAT was justified and right in law in directing assessing officer to re- compute income at net profit rate of 11.5% instead of discussing disallowances under specific heads and further by placing reliance upon preceding year rates which were also under dispute? ii) Whether ITAT was right in law in allowing deduction out of business income on which TDS was not deducted and was violation of Section 40(a)(ia)? In DBITA No. 63/2017 Whether on facts and circumstances of case Hon ble ITAT was justified in applying NP rate of 17% as against 29.52% applied by A.O., ignoring that in its order dated 30.09.2010 it has directed to keep in view past results of assessee, and AO had applied NP rate of 29.52% shown by assessee itself in A.Y. 2005-06 on receipts of Rs. 1.21 crore? (3 of 3) [ ITA-625/2011] 3. In third appeal (63/2017) where after remand above two appeals were decided. However, subsequently, Tribunal has allowed appeal of both department as well as partly allowed appeal of assessee. 4. In view of recent decision of Supreme Court in case of M/s Palam Gas Service vs. Commissioner of Income Tax, Civil Appeal No. 5512/2017 decided on 3 rd May, 2017 wherein view of this court has been confirmed and decision of Supreme Court, view taken by Tribunal is required to be upheld. Since average GP is to be taken according to last years, since in two appeals average has not been revealed by Tribunal in both these appeals, matter is remitted back to Tribunal to decide afresh. 5. However, in Appeal no. 63/2017, in view of decision of Supreme Court, issue is decided in favour of assessee against department and said appeal stands dismissed. 6. However, other two appeals (625/2011 & 249/2012), matter is remitted back to Tribunal to decide afresh and these appeals are disposed of in view of remand. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. A.Sharma/14-16 Commissioner of Income-tax, Jaipur-II, Jaipur v. Choudhary and Bro