Commissioner Of Income Tax, Jaipur-Ii ,Jaipur v. M/S Choudhary And Bros, Village Ladhana, Tehsil Phagi, Jaipur

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR 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 JainFor 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 are involved, hence, they are decided by this common judgment. 1.By way of these appeals, the appellant has assailed thejudgment and order of the Tribunal whereby the Tribunal haspartly allowed the appeals of the assessee. 2.This court while admitting the matter has framed thefollowing substantial questions of law:- In DBITA No. 625/2011 “Whether the Hon’ble ITAT was justified and rightin law in directing the assessing officer to re-compute the income at the net profit rate of11.5% instead of discussing the disallowancesunder the specific heads and further by placingreliance upon preceding year rates which werealso under dispute? In DBITA No. 249/2012 “i). Whether the Hon’ble ITAT was justified andright in law in directing the assessing officer to re-compute the income at the net profit rate of11.5% instead of discussing the disallowancesunder the specific heads and further by placingreliance upon preceding year rates which werealso under dispute? ii) Whether the ITAT was right in law in allowingthe deduction out of business income on whichTDS was not deducted and was violation ofSection 40(a)(ia)?” In DBITA No. 63/2017 “Whether on the facts and circumstances of thecase the Hon’ble ITAT was justified in applying NPrate of 17% as against 29.52% applied by theA.O., ignoring that in its order dated 30.09.2010it has directed to keep in view the “past results”of the assessee, and the AO had applied the NPrate of 29.52% shown by the assessee itself inA.Y. 2005-06 on receipts of Rs. 1.21 crore?” 3.In the third appeal (63/2017) where after the remand theabove two appeals were decided. However, subsequently, theTribunal has allowed the appeal of both the department as well aspartly allowed the appeal of the assessee. 4.In view of the recent decision of the Supreme Court in caseof M/s Palam Gas Service vs. Commissioner of Income Tax, CivilAppeal No. 5512/2017 decided on 3[rd] May, 2017 wherein the viewof this court has been confirmed and the decision of SupremeCourt, the view taken by the Tribunal is required to be upheld.Since the average GP is to be taken according to last years, sincein the two appeals the average has not been revealed by theTribunal in both these appeals, the matter is remitted back to theTribunal to decide afresh. 5.However, in Appeal no. 63/2017, in view of the decision ofSupreme Court, the issue is decided in favour of the assesseeagainst the department and the said appeal stands dismissed. 6.However, other two appeals (625/2011 & 249/2012), thematter is remitted back to the Tribunal to decide afresh and theseappeals are disposed of in view of remand. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. A.Sharma/14-16