DILIP GUPTA,J.SURYA PRAKASH KESARWANI,J. - (1.) The Income Tax Appellate Tribunal, Allahabad Bench, Allahabad The Tribunal by order dated 29 October 1999 relating to the assessment year 199192, has referred the following questions for opinion of this Court: "1.Whether on the facts and in the circumstances of the case, the Incometax Appellate Tribunal was justified in holding that the issue of subcontract of IRCON was never raised before the Commissioner of Income Tax (Appeals), whereas this issue was not before the Appellate Authority?
(2.) Whether on the facts and in the circumstances of the case the Tribunal was justified in confirming the Commissioner of Income Tax (Appeal) Order, holding that the issue of main contract and sub contract was raised or the first time before the Tribunal, whereas it came up only out of the Appellate Order, on which the finding was given, without considering the fact that the addition in the assessment order was on different issue - 2. Learned counsel for the assessee submits that during the Assessment Year 19919 C.I.T. (Appeals), the total receipts from contract was Rs.94,06,135/ out of which receipts of Rs.7,82,750/ were from main contract and receipts of Rs.86,23,385/ were from sub contract.
(3.) It is not in dispute that the above two kinds of receipts were verified in earlier assessment years 198586 and 198687 and the Assessing Authority applied separate rates of net profit of 8.5% in respect of receipts from main contract and 6% in respect of receipts from sub contract, which was further reduced to 5.5% by the Commissioner of Income Tax (Appeals) 2 by order dated 6 February 1990. However, the Tribunal did not consider this aspect and applied a flat rate of 8% to determine the net profit for the assessment year in question as was done by C.I.T. (Appeals). The department was not aggrieved with the order of the C.I.T (Appeals) but the assessee being aggrieved with the application of flat net profit rate of 8% on the entire receipts of contract, filed an appeal being Appeal No.1274 (Alld.)/1995 before the Tribunal, which was dismissed by the aforesaid order dated 26 April 1996.;