HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Income Tax Appeal No. 69/2009 Manda Builders Shiv Shakti Vihar, Jaipur Road Bikaner. Through its Partner Shri Ramnivas Manda S/o Shri Bhinwa Ram Ji Aged 49 years, resident of Shiv Shakti Vihar, Jaipur Road, Bikaner. Appellant Versus Income Tax Officer Ward 2(1) Bikaner. ----Respondent For Appellant(s) : Mr. Lokesh Mathur For Respondent(s) : Mr. KK Bissa, AGC HON'BLE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 02/01/2020 1. present Income Tax Appeal under Section 260A of Income Tax Act, 1961 seeks to challenge judgment and order dated 03.8.2009 passed by Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur in Appeal No.365/JU/2005. 2. Learned counsel for appellant submits that assessee had earlier come before this Court in D.B. Income Tax Appeal No.111/2006 and said appeal came to be allowed by order dated 28.8.2008, which reads as follows :- controversy, involved in present case, is squarely covered by judgment of this Court dated 03.07.2008, passed in IT Appeal No.10/2006 M/s Shri Ram Jhanwar Lal Vs. I.T.O. bikaner & Ors. In that view of matter, this appeal is also allowed for same reasons, and matter is sent back to learned Additional Tribunal, for deciding matter afresh, (Downloaded on 06/01/2020 at 10:35:04 AM) (2 of 4) [ITA-69/2009] keeping in view observations and directions, given in aforesaid judgment dated 03.07.2008. 3. It would be incumbent here to take note of fact that present assesee had filed aforesaid appeal seeking to challenge earlier order of Income Tax Appellate Tribunal holding that net profit rate @ 8% was applied on contract receipts but no deduction was allowed on account of depreciation since assessee being aggrieved by fact that Income Tax Appellate Tribunal earlier had determined net profit rate @ 8% while accepting rate @ 8%, as rate was essentially aggrieved by fact that Tribunal had further directed no separate deduction on account of depreciation. 4. It appears appeals from earlier order, this Court had relied upon judgment rendered by Division Bench of this Court in Income Tax Appeal No.10 of 2006 in case of M/s. Shri Ram Jhanwar Lal Vs. I.T.O., Bikaner & Ors., decided on 03.7.2008 wherein following issue was raised : Whether in facts and circumstances of case, where Assessing Officer has adopted net profit rate in making assessment of income on basis of best judgment assessment, any further adjustment of profits arrived at by applying net profit rate by way of allowance of depreciation of assets used in business is permissible ? 5. This question was answered in affirmative in favour of assessee by placing reliance on judgment of Division Bench of Rajasthan High Court in case of CIT Vs. Jain Construction Co., reported in 245 ITR 527, therefore, this Court in earlier appeal while allowing assessee s appeal had specifically directed Income Tax Appellate Tribunal to decide (Downloaded on 06/01/2020 at 10:35:04 AM) (3 of 4) [ITA-69/2009] matter afresh while keeping in view observations and directions given in aforesaid judgment dated 03.7.2008 in case of M/s. Shri Ram Jhanwar Lal Vs. I.T.O., Bikaner & Ors. 6. It appears on perusal of impugned order herein i.e. 03.8.2009 that Income Tax Appeal No.365/JU/2005, for Assessment Year 2001-02 while taking note of fact that this Court had allowed earlier appeal by assessee yet proceeded to determine net profit @ 12.5% (instead of 8% as earlier determined) and thereafter directed allowing depreciation, interest and remuneration to partners. 7. Consequently present issue that has been raised by appellant in present appeal is that once Appellate Tribunal had determined profit on basis of net profit basis @ 8% of contract value, it was no longer open for Income Tax Appellate Tribunal to re-do computation on 12.5% of net profit. On perusal of impugned order, it appears that, though, Tribunal has taken note of directions of this Court, however, it had failed to apply judgment rendered by this Court in case of M/s. Shri Ram Jhanwar Lal (supra) nor judgment rendered in case of Jain Construction (supra). 8. Consequently, present appeal is allowed to extent of modifying order of Tribunal for determining profit rate @ 8% instead of 12.5% on gross contract receipt as earlier determined by Tribunal subject to allowing depreciation, interest and remuneration to partners. Accordingly, appeal is allowed and matter stands remitted back to Income Tax Authorities concerned for recomputing amount of tax. 9. Although, learned counsel for Revenue sought to justify order passed by Tribunal on basis of determination of (Downloaded on 06/01/2020 at 10:35:04 AM) (4 of 4) [ITA-69/2009] question of facts this Court ought not to entertain challenge thereto yet in circumstances as noted hereabove, we find no reason to accept such contention by way of earlier order determined to extent of net profit as determined by ITAT earlier and in view of judgment of this Court in Jain Construction (supra) where this Court had directed allowing depreciation and another deduction as applicable to assessee. Keeping in view aforesaid facts into consideration we are unable to accept submissions of learned counsel for Revenue. (DR. PUSHPENDRA SINGH BHATI),J (INDRAJIT MAHANTY),CJ 30-Sanjay/- (Downloaded on 06/01/2020 at 10:35:04 AM) Powered by TCPDF Manda Builders Shiv Shakti Vihar v. Income-tax Officer, Ward-2(1), Bikaner