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TMI Blog2014 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the assessment proceedings. One such claim pertained to deduction under 80IB of the Income Tax Act, 1961 ("the Act" for short). The Assessing Officer passed the order of assessment on 27.3.2006 disallowing such claim making following observations:- " During the year under consideration the assessee company has claimed deduction under section 80IB of the I.T. Act at Rs. 1,30,09,683/- in respect of its alleged new 3D line unit at Pithampur. It was noted that the assessee company has failed to file the required mandatory form no.10CCB with the return of income. As per provision u/s 80IB(13) r.w.s.80IA(7)., this audit report is a mandatory criterion for availing this deduction. This fact was brought to the notice of assessee company vide order sheet noting dated 16-9-05. Till the passing of this order, the assessee company has failed to submit form No.10CCB. As this is clear violation of provision of section 80IB(13) r.w.s. 80IA(7), the assessee company claim of deduction amounting to Rs. 1,30,09,683/- is disallowed." 3. The assessee carried the matter in appeal. Before CIT(Appeals) the assessee contended that in the earlier years such claim was granted by CIT(Appeals). CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment. He submitted that this view is contrary to the decisions of this Court as well as the Supreme Court. 6. Counsel contended that even if the Audit Report in Form 10CCB was furnished at the appellate stage, the same should be seen as sufficient compliance of the requirement of claiming deduction under section 80IB of the Act since the appeal must be seen as continuation of the assessment proceedings. 7. In support of his contentions, counsel relied on the following decisions:- 1) In the case of Commissioner of Wealth-Tax vs. Vimlaben Vadilal Mehta reported in [1984]145 ITR 0011, in which the Supreme Court observed that rectification of the assessment must be treated on the same basis as an original assessment for the purpose of claim of deduction of liabilities towards income-tax, Wealth-tax or gift-tax. 2) In the case of Commissioner of Wealth-tax vs. Vadilal Lallubhai (Supreme Court of India) reported in [1984] 145 ITR 0007 in which the Apex Court observed that when in the course of a wealth-tax assessment, the assessee makes a claim for deduction on account of the income-tax, wealth-tax and gift-tax liabilities, owed by him on the valuation date, it is the final quanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the Certificate which is already placed on record by the appellant, would assist them in support of their defence." 8. On the other hand, learned counsel Mr. Parikh for the Revenue opposed the appeal contending that since the assessee failed to produce the report in Form 10CCB till the completion of the assessment, the same cannot be produced at any stage thereafter. The Tribunal therefore committed no error in allowing the Revenue's Appeal. 9. It is true that the Tribunal has made observations, which may suggest that if report in Form 10CCB is not filed before the Assessing Officer before completion of the assessment, the entire claim under section 80IB of the Act, necessarily has to fail. Had this been the sole factual matrix, we would have certainly examined the question further and as prima facie advised, also would have accepted the assessee's contention that even at the appellate stage, such report could be furnished if valid grounds are made out for doing so. However, we enquired with the counsel for the appellant whether and at what stage, the report was presented before the Appellate Commissioner or the Tribunal. We may recall that the Commissioner allowed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. As per section 260A(4), the appeal has to be heard only on the question so formulated, the proviso however clarifies that nothing in this sub-section shall be deemed to take away or abridge the prower of the Court to hear the appeal on any other substantial question of law not formulated if the Court is satisfied that the case involves such a question. Thus at all stages the High Court has to judge if any substantial question of law arises at all and if it does arise, decide the same. Further the admitted fact being that no such report was ever filed till the stage of Tribunal, it would be futile to decide the question framed by the appellant which completely ignores this factual aspect. The issue can be looked from a slightly different angle. The Tribunal's order can be supported by the respondent independently of the grounds mentioned by the Tribunal. Therefore, if the report was never filed till the Tribunal decided the appeal, surely, the Revenue had to succeed. Simply because the Tribunal mentioned this for allowing the appeal would not mean t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner(Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal, or for any other substantial cause including the enhancement of the assessment or penalty (whether on his own motion or on the request of the Assessing Officer under clause (a) of sub-section(1) of section 251 or the imposition of penalty under section 271." 13. It can thus be seen that even to be able to produce additional evidence before the appellate Commissioner, the assessee has to satisfy the conditions of sub-Rule (1) thereof and further the Rule requires the appellate authority to record his reasons in writing for admitting such additional evidence. 14. Under the circumstance, without any justification and without any indication of reasons why such report could not be presented earlier, the assessee simply cannot for the first time present such document before the High Court and seek benefit of the deduction on the basis of such document. The appellate jurisdiction of the High Court under section 260A of the Act permits taking into account the substantial question of law and not examine the factual disputes. Further a mere presentation of rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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