D.K. Seth, J. - (1.) The assessee was carrying on the business of undertaking contracts in respect of which mobilisation fees were being received from time to time. Initially, the assessee used to maintain accounts on the basis of the completion of the contracts; but from the assessment year 1988-89, the assessee had changed the mode of accounting and started showing receipt of mobilisation fee on the basis of the pro rata performance of the contract in that particular assessment year and offered it to tax. In respect of the assessment years 1988-89 and 1989-90, the Commissioner of Income-tax (Appeals) had held that the amount would become taxable on the completion of the contract when the bank guarantee would be released and thus postponed the taxability till the completion of the contract. Against these two orders of the Commissioner of Income-tax (Appeals), the assessee preferred appeal before the learned Tribunal. The learned Tribunal by a consolidated order passed in these two appeals had laid down the principle of pro rata receipt of the mobilisation fees on the basis of the pro rata performance of the contract and did not agree with the postponement of the taxability till the completion of the contract and had allowed these two appeals with regard to these grounds. Similar offer for taxation of mobilisation fee received on the basis of the pro rata performance in respect of the assessment year 1990-91 was also subjected to appeal before the Commissioner of Income-tax (Appeals) wherein the same principle of postponement and taxability on the completion of the contract was upheld. For some reason or other the assessee did not prefer any appeal against this order. Though in our view the order had affected the assessee's interest Mr. Khaitan had pointed out that it had enured to the benefit of the assessee, which we are unable to appreciate. Be that as it may/we need not go into this question. Ultimately, the departmental appeal was dismissed without interfering with the order of the Commissioner of Income-tax (Appeals). After the order in appeal in respect of the assessment year 1990-91, the assessee filed an application for rectification. This was dismissed by the learned Tribunal. I. T. A. No. 405 of 2000 was preferred against this order by the assessee before this court and I. T. A. No. 9 of 2001 against the main order. Submission of behalf of the appellant :
(2.) According to Mr. J. P. Khaitan when the order passed in the appeals relating to the assessment years 1988-89 and 1989-90 was followed and which had modified the order of the learned Commissioner of Income-tax (Appeals) to the extent of pro rata taxability based on pro rata performance, it was not open to the learned Tribunal to dismiss the appeal without interfering with the order under appeal postponing taxability till completion of the contract contrary to the principle followed.
(3.) The learned Tribunal did not grant relief to the assessee on the ground that the assessee did not prefer any appeal. Mr. Khaitan had relied on certain decisions in order to contend that it was open to the Tribunal to pass appropriate order in the appeal preferred by the Department even though no appeal was preferred by the assessee.;