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TMI Blog2013 (3) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... e of having not been filed at the time of filing of the return. The order as passed by the Tribunal does not call for any interference and stands confirmed insofar it is held that the assessee cannot be denied the benefit of deduction under Section 80HHC. However, the other part of the directions of Tribunal, where the benefit of deduction under Section 80HHC has directly been allowed at Rs. 37,08,019.97 only on the basis of the amount stated in the audit report in Form No.10CCAC, the same stands modified in the manner that the issue about quantification of the eligible deduction under Section 80HHC is restored to the file of the Assessing Officer who shall re-examine the matter as regards the amount eligible for deduction and then, shall pass appropriate consequential orders in accordance with law. - Income Tax Appeal No. 1/2008 - - - Dated:- 10-1-2013 - Dinesh Maheshwari And Arun Bhansali,JJ. Mr. K.K. Bissa, for the appellant. Mr. Anjay Kothari, for the respondent. JUDGMENT This appeal by the revenue under Section 260-A of the Income Tax Act, 1961 [ the Act ] is directed against the judgment and order dated 15.06.2007 as passed by the Income Tax Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the requirement of furnishing the audit report in Form No.10CCAC alongwith the return was a mandatory one and, for having failed to fulfill this requirement, the assessee was not entitled to the claimed deduction. The AO, inter alia, observed and held as under:- I have considered the submission of the assessee and the facts of the case. The form No.10 CCAC as one of annexures does not find a place in the list of the documents attached with the Return of Income. The assessee company has filed the certificate only during assessment proceeding with the plea that it can be filed any time before the assessment. As per the provisions of the section 80 HHC, it is mandatory to file the CA s certificate in the prescribed form 10CCAC along with the return of income to claim the deduction ..Therefore in view of the detailed discussion I hold that the assessee company is not eligible for any deduction u/s 80 HHC since it has failed to fulfill the requirement of filing the form 10 CCAC alongwith the return of income. Therefore, the entire deduction u/s 80 HHC as claimed by the assessee in the return of income is disallowed. In appeal before the Commissioner of Income Tax (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome is at Rs.39.86 lakhs whereas the said amount as per audit report in Form No.10 CCAC furnished during the course of assessment proceedings is at Rs.37.08 lakhs. There is no question of granting any deduction for an amount in excess of that calculated by the Chartered Accountant in Form No.10CCAC. We, therefore, grant the benefit of deduction u/s 80HHC at Rs.37,08,019.97. This ground is, therefore, partly allowed. Assailing the order aforesaid, it is contended by the learned counsel for the appellant that the Tribunal has failed to consider the matter objectively and in its correct perspective. It is submitted that the assessee not only claimed an excess deduction but also made the claim without getting the amount certified by the Chartered Accountant and without complying with the mandatory requirement of furnishing the audit report in Form No.10CCAC with the return. Thus, according to the learned counsel, the AO had rightly rejected the claim of deduction under Section 80HHC and his order had rightly been affirmed by the CIT (A); and the Tribunal had been in error in interfering. Per contra, the learned counsel for the respondentassessee has supported the order impugned wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri materia with the provisions relating to certain benefits extended to assessees under ss. 80 and 80HHC of the IT Act. For the present purposes primary requirement of s. 32AB (1) is (i) that total income of assessee must include income chargeable under head 'Profit and gains of business or profession', (ii) that the amount must be deposited in deposit account maintained for this purpose in a Development Bank, and (iii) such amount must be deposited before six months from the end of previous year or before filing return. With alternative to above deposit, utilisation in terms of cl. (b) of s. 32AB, is not the present concern. The respondent-assessee had fulfilled all these conditions is not in dispute. Procedural requirement is that deduction is not admissible until the accounts of the assessee claiming such deduction of the previous year relevant to assessment year in question are audited and report of such auditor is furnished along with return. 12. The consistent view which prevailed with the different High Courts except a Division Bench decision of Punjab and Haryana High Court in CIT vs. Jaideep Industries (1989) 180 ITR 81 (P H), which too has subsequently been overruled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, this Court, while concerned with a similar nature question qua the provisions of Section 32AB(5), held that the time of filing of the report was a condition directory in nature and also held that the provisions of Section 32AB on relevant aspects were pari materia with the provisions of Section 80HHC of the Act. Then, the Hon'ble Punjab and Haryana High Court held the requirement of filing of the report alongwith return for the purpose of deduction under 80HHC to be directory and, again, held that the two provisions i.e., Section 80HHC and Section 32AB(5) were substantially similar. It may be observed that Section 32AB(1) provides for certain deductions in respect of an assessee whose total income includes income chargeable to tax under the heads Profits and gains of business or profession and the assessee makes deposit or utilizes any amount for the purposes specified in the Section. Furnishing of the report of the accountant in prescribed form alongwith the return is necessary for the purpose of claiming such deduction. On the other hand, under Section 80HHC, an assessee who is engaged in the business of specified export, is entitled to a deduction to the extent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accountant's report in sub-section (4) of Section 80HHC, could be considered to be a mandatory requirement for the purpose of the assessee being entitled to claim deduction but the time of filing of the same could only be considered directory in nature and such report cannot be removed out of consideration only because of having not been filed at the time of filing of the return. On the facts of the present case, we may, however, observe that even when the report as filed during the course of assessment proceedings may not be removed out of consideration and, to that extent, the Tribunal does not appear unjustified yet, we have reservations about the other part of the order passed by the Tribunal where the benefit of deduction under Section 80HHC has directly been allowed at Rs.37,08,019.97 only on the basis of the amount stated in the audit report in Form No.10CCAC. As noticed, the deduction claimed by the assessee in the first place had been Rs.39,86,538/-. Some inconsistency having occurred, in our view, the matter ought to have been sent to the AO concerned for appropriate orders. Accordingly, in view of the above, to the question of law formulated in the present case, our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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