Order Heard learned counsel for the parties. 2. This appeal is arising out of the order dated 19.9.2008 passed by the Income Tax Appellate Tribunal, Circuit Bench, Ranchi in I.T.A. No. 440/Pat/2007 pertaining to Assessment Year 2004-05, whereby the Revenue's Appeal was dismissed by the I.T.A.T. 3. The brief facts of the case are that the A.O. made the Assessment Order on 26.12.2006 for the assessment year 2004-05 for the assessee who submitted his returns of income declaring his total income of Rs.44,12,000/- and claimed the refund of Rs.8,93,603/-. The returns was processed under Section 143(1) of the Income Tax Act, 1961 (for short-Act of 1961). The assessee is a contractor. The assessee's assessment was processed and the A.O. held that since the assessee simply filed a copy of the ledger and accounts of few of the expenditures and some photocopies of the purchase bills, but neither the cash book nor the complete ledger and accounts of expenses were produced and none of the expenses was verifiable with original bills/vouchers and the assessee was given full opportunity to produce the books of accounts but he did not produce the books of accounts, the details furnished by the assessee appears to be unreliable. The books of accounts were, therefore, rejected and the A.O. proceeded to determine the total income for the Assessment Year 2004-05. Since the assessee's total receipt was more than Rs.40 lakhs, according to A.O., the provision of Section 44AD of the Act of 1961 as was applicable for the Assessment Year 2004-05, was not applicable. After detailed discussion with respect to the assessment of the profit and taxable income of the assessee, the A.O. very specifically held that though Section 44AD of the Act of 1961 has no application but it will be reasonable to take help of the provision of Section 44AD only for the purpose of quantification which will be just quantification for the purpose of taxing the liability. Taking hint from the said provision and after considering the relevant facts including the difference between the profit which should have been the A.O. independently held that 8% can be assessed as an income of the assessee out of the contract work done by the assessee; meaning thereby the A.O. held that the 8% of the gross contract receipt is the income of the assessee. Thereafter, the learned A.O. allowed certain deductions which were not allowable if Section 44AD of the Act of 1961 would have been applicable by virtue of sub-section 2 of Section 44AD of the Act, which prescribes that any deduction allowable under Sections 30 to 38 shall, for the purpose of sub-section (1) of Section 44AD, be deemed to have been already given full effect to and no further deduction under those sections shall be allowed. 4. The Revenue preferred appeal before the C.I.T.(A), Ranchi, Jharkhand. The Revenue's Appeal was dismissed and, therefore, Revenue preferred further appeal before the Tribunal which was decided alongwith the 'Cross-Objection' filed by the assessee vide its impugned order dated 19.9.2008. 5. Learned counsel for the appellant submitted that question of law involved in this appeal is that in a case where analogy of Section 44AD of the Act of 1961 has been applied by all the three authorities, then the proviso to Section 44AD should also be given effect to and no further deduction should have been allowed under Sections 30 to 38 of the Act of 1961 as per the deeming allowance of benefits under proviso to Section 44AD. 6. We have considered the submissions of the learned counsel for the appellant and perused the relevant orders. It is not disputed rather to say admitted fact that assessee's books of accounts were rejected and the A.O. proceeded to make assessment of the income of the assessee on the basis of the relevant materials and the facts which were available to him and reached to the conclusion that since gross receipt of the assessee is more than Rs.40 lakhs, Section 44AD of the Act of 1961 has no application. Once this finding is recorded, application of entire Section 44AD of the Act of 1961 stands excluded. Now, the A.O. proceeded to determine the income of the assessee according to his best judgment and in that process, the A.O. rejected the books of accounts of the assessee and thereafter, considered the relevant materials and facts and for the purpose of quantification of the income, took help of Section 44AD of the Act wherein it has been provided that 8% of the total receipt in tile business of contract or may be treated to be income. It appears that Revenue was of the opinion that even if help is taken from any provision for the purpose of quantification which may appear to be just and reasonable to the A.O. for the purpose of assessment according to his own wisdom and not according to mandate of provision of law, then all the provisions of that Statute or Section will apply. The impression of the Revenue is just contrary to the law. By applying analogy of a particular provision for the purpose of reaching to the conclusion of a fair calculation is not an application of law itself. The contention of learned counsel for the Revenue is, if accepted, then it will be just contrary to the Statutory provision by holding that once the analogy for the purpose of mere computation of income consciously or incidentally is the same to the Statutory provision, then in that situation, though the Statute specifically excludes application of the provision, shall stand applicable. Meaning thereby, in the present facts of the case, the Statute says that if receipt of the assessee is more than Rs.40 lakhs in a year relevant for the purpose of the assessment, then Section 44AD of the Act of 1961 will not apply and simply because by co-incidence or by taking help or hint from the method of computation, if A.O., for the purpose of computation, takes the quantification help from the Statutory provision, the Statutory provision will stand applicable in to even for the purpose of other provisions and it will impliedly mean that assessee's income has been assessed under Section 44AD of the Act of 1961 in spite of Statutory provision prohibiting application of Section 44AD in a case where receipt is more than Rs.40 lakhs of the assessee. Therefore, the Tribunal rightly held that, the assessment was not under Section 44AD but for the purpose of quantification only, help was taken by the A.O. for the assessment and quantification of the income of the assessee and that was independent to Section 44AD of the Act of 1961. Therefore, proviso to Section 44AD of the Act of 1961, if was not applied by the A.O., he did it rightly. 7. Therefore, proviso to Section 44AD of the Act of 1961, if was not applied by the A.O., he did it rightly. 7. In view of the above reasons, the question is answered against the Revenue and it is held that in a case where only help is taken from any Statutory provision and Statutory provision specifically excludes application of the Statutory provision, then in that situation, the assessment shall be deemed to be according to the wisdom of the A.O. and not under the said provision of law, application of which has been excluded statutorily. Therefore, this appeal is dismissed.