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Issues Involved:
1. Permission to raise additional ground by the Revenue. 2. Allowability of depreciation after applying the net profit (N.P.) rate. 3. Appropriate N.P. rate to be applied for the assessment years in question. Detailed Analysis: 1. Permission to Raise Additional Ground by the Revenue: The Revenue sought to raise an additional ground to enhance the N.P. rate applied by the Assessing Officer (AO) for the assessment years 1991-92 and 1993-94. The Department argued that the CIT(A) should have enhanced the N.P. rate while allowing separate deductions for depreciation and interest. The Department claimed that this additional ground was relevant and in the interest of justice. The assessee opposed the petition, arguing that the additional ground introduced a new subject matter not connected with the original grounds of appeal and that the CIT(A) had not based his decision on the reasoning of not having the power to enhance the N.P. rate. The Tribunal found the contention of the assessee that the additional ground was not connected with the matter involved in the appeals to be without force. However, the Tribunal rejected the Department's petitions for permission to raise the additional ground, citing the judgment of the Hon'ble Calcutta High Court in (1994) 208 ITR 740 (Cal). The Tribunal noted that allowing the additional ground would be tantamount to filing a fresh appeal, which had already become time-barred. 2. Allowability of Depreciation After Applying the N.P. Rate: The Tribunal addressed the issue of whether depreciation should be allowed separately after applying the N.P. rate. The Tribunal referenced the judgment of the Hon'ble Rajasthan High Court in the case of Jain Construction Co., which held that after estimating the gross profit (G.P.) or N.P., the deduction for depreciation should be allowed separately. The Tribunal noted that the AO's method of applying the estimated profit rate without allowing further deduction for depreciation was not legally permissible. Therefore, the Tribunal directed the AO to allow the assessee's full claim for depreciation permissible under law for the assessment year 1993-94. 3. Appropriate N.P. Rate to be Applied for the Assessment Years in Question: For the assessment year 1993-94, the Revenue disputed the CIT(A)'s order of reducing the N.P. rate from 11% to 10%. The assessee also contested the non-allowance of the full claim for depreciation. The Tribunal considered various precedents and arguments from both sides. The Tribunal found that sustaining the CIT(A)'s order of reducing the N.P. rate to 10% would not be justified. Therefore, the Tribunal decided to apply the N.P. rate of 11%, which was deemed appropriate in the circumstances. For the assessment year 1991-92, the only remaining ground was the original ground disputing the allowing of depreciation after applying the 10% N.P. rate. The Tribunal upheld the CIT(A)'s order, finding no merit in the Revenue's appeal, as the legal position required separate allowance for depreciation after estimating the profit. Conclusion: The Tribunal dismissed the Revenue's appeal for the assessment year 1991-92 and allowed the assessee's appeal and the Revenue's appeal for the assessment year 1993-94 to the extent indicated. The Tribunal directed the AO to allow the assessee's full claim for depreciation and applied an N.P. rate of 11% for the assessment year 1993-94.
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