IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- (1) INCOME TAX APPEAL No. 83 of 2005 BANNA LAL JAT V/S C I T, AJMER (2) INCOME TAX APPEAL No. 84 of 2005 BANNA LAL JAT V/S C I T, AJMER Mr. Yogesh Sharma, for the appellant/s. Mr. K.K. Bissa, for the respondent/s. Date of Order : 17.3.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. ORDER ----- These two appeals arise out of the common order of the learned Tribunal, deciding four appeals, being Appeals No.493/JU/2000, 494/JU/2000, so also 515/JU/2000 and 516/JU/2000. The appeals No.493/JU/2000 and 494/JU/2000 were filed by the assessee, while, appeals No.515/JU/2000 and 516/JU/2000 were filed by the Revenue, against the common order of the Commissioner of Income-Tax (Appeals), deciding appeals for the assessment years 1993-94, and . 1994-95. The appeals were decided by order dated 05.11.2001. Thereafter, the assessee filed an application under Section 254(2), seeking rectification of error, which application was allowed vide order dated 24.04.2002, that order has been set aside by this Court in D. B. Income Tax Appeal No.87/2002, vide order dated 17.07.2003, with the result, that the order dated 05.11.2001 resurrected. This is how, the present appeals have been filed, against the order dated 05.11.2001. The delay in filing the appeals has been condoned by this Court vide separate orders. The appeal No.83/2005 was admitted on 04.10.2007, by framing following substantial question of law: “Whether the ITAT has the power to enhance the income in appeal of the assessee without there being any appeal on the side of the Revenue?” While, the appeal No.84//2005 was admitted on 27.10.2006, by framing identical question. We have heard learned counsel for the parties on the question so framed, and have gone through the order of the learned Tribunal. A bare reading of the order of the learned Tribunal shows, that there were appeals of the assessee, and there were cross appeals of the Revenue as well, and the learned 2 . Tribunal has decided the appeals of the assessee, which discussion has ended in Para 10, wherein, certain relief has been granted by the learned Tribunal, inasmuch as, the NP rate as determined by the AO has been reduced from 12½% to 8%, and in Para 10, some more relief has been granted. It is, thereafter, that in Para 11 and onwards, the learned Tribunal has taken up the cross appeals, and those appeals have also been dismissed. Thus, on the face of it, we find, that there is no enhancement of income of the assessee, by the learned Tribunal. Learned counsel for the appellants read Para 9 of the impugned order, and pointed out, that the learned Tribunal has made reference to Section 44 AD, and has shown, that the learned Tribunal has considered the NP rate of gross receipts, as considered reasonable in the case of the assessee, engaged in the business of civil construction, or supply of labour for civil construction, and if the calculations are made accordingly, the net taxable income was got enhanced. In our view, the apprehensions of the appellants are misplaced, inasmuch as, in the very next sentence, the learned Tribunal has held “this Section is not directly applicable to the facts of the case”. With this, the AO has been directed to apply the NP rate of 8% in both the cases of assessment years 1993-94 and 1994-95 respectively. 3 . Not only this, the last line of Para 9, reads as under: “...and allow the relief accordingly to the appellant.” This obviously means, that the learned Tribunal was granting relief to the assessee, and was not putting him in any difficult situation, by enhancing the income of the assessee. Thus, in our view, since the learned Tribunal has not enhanced the income, and in any case, it is clarified, that the impugned order of the learned Tribunal does not have the effect of enhancing the income, rather it has effect of reducing the NP rate from 12½% to 8%. Thus, the question as framed, does not arise in the appeals. The appeals are, therefore, disposed of with the above clarification. ( DEO NARAYAN THANVI ),J. ( N P GUPTA ),J. ms rathore 4