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TMI Blog1982 (4) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... l at Gadarpur, in the interior of Nainital district. In its assessment for 1977-78, for the previous year ended on1-10-1976, the appellant had claimed deduction under section 80J. While completing the assessment, the ITO had allowed a deduction of Rs. 23,034 under section 80J in the following words : "CLAIM OF SECTION 80J Full facts have been given in A.Y. 76-77. The assessee has filed the audited report fromC.A., Shri R.C. Tandon,Bareilly. The opening balance of partners are as under : Rs. 1. Shri Sher Singh 1,53,345 2. Shri Mukand Lal 1,67,908 3. Shri Lekhraj 99,245 ----------------- 4,20,498 ----------------- Add: Development reserve 22,020 ----------------- 4,42,518 Less : Stock of lahi, gwar, sutli, etc. 58, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted by the assessee along with its return of income. He distinguished the decision of the Madhya Pradesh High Court in Kamalchand as inapplicable to the facts of the present case. He, therefore, held that the relief allowed under section 80J by the ITO was erroneous and prejudicial to the interests of the revenue and, therefore, set aside the assessment for the assessment year 1977-78 with the direction to the ITO to recompute the income as per law. Aggrieved by this order of the Commissioner, the appellant has preferred the present appeal to the Tribunal. 5. I have heard Shri O.P. Sapra, the learned counsel for the appellant, and Shri T.C. Khullar, the learned departmental representative, and carefully considered their submissions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofits and gains derived from an industrial undertaking shall not be admissible unless the accounts of the industrial undertaking for the previous year relevant to the assessment year for which the deduction is claimed to have been audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, and the assessee furnishes, along with his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant." This is a new provision of law which was introduced by the Finance Act, 1975, with effect from1-4-1976. All assessees, other than a company or a co-operative society, who derived income, profits and gains from a new industrial undertaking, should comply with the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atBareillybut unfortunately could not take an appointment from him due to his absence from office for one reason or the other. This was explained to be the main cause for the late audit of accounts. As the return of income had to be filed in June 1977 and as the assessee was already late in filing its return of income, it was considered proper that the return should not be delayed further and that, therefore, it filed its return of income without the audit report. It was also submitted that there was no dispute that the assessee-firm was a new industrial undertaking which was entitled to the relief under section 80J and that the late submission of the audit report was only a technical mistake. It was further submitted that looking into all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the firm and no change in the shares of the partners and the firm was registered during the previous year, then the necessary advantage of renewal conferred by sub-section (7) of section 184 must undoubtedly follow to the assessee-firm. The declaration could not be held to be invalid for the reason that it was not filed along with the return." Their Lordships have relied on the decision of the Supreme Court in Lakshmiratan Engg. Works Ltd. v. ACST [1968] 21 STC 155 (SC) and of theAllahabadHigh Court in Chatarbhaj Chogalal v. CIT [1956] 30 ITR 22. 8. Shri Sapra also relied on the latest ruling of the Allahabad High Court, taking a similar view in Addl. CIT v. Murlidhar Mathura Prasad [1979] 118 ITR 392. In this case their Lordships of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(5) and it could validly file the declaration in Form No. 12 along with such return and it is entitled to continuation of registration. It does not then stand to reason that an assessee who is prompt and files a return before the time prescribed under sub-section (1) or sub-section (2) of section 139 should suffer merely because the declaration was not filed physically along with it. The Taxation Laws (Amendment) Act, 1970 which came into force on1st April, 1971has repealed and re-enacted section 184(7) and now the requirement that the declaration should accompany the return has been given up. However, a definite time limit has been fixed for the filing of the declaration. This is another indication that prior to the amendment there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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