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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 ..... rm and the report would enable the Assessing Officer to examine the claim and different calculations on the basis of which the claim is sought to be substantiated – the question cannot be gone into in the Tax Appeal before the High Court under section 260A of the Act – Relying uponCommissioner Of Income-Tax Versus Nagpur Hotel Owners Association [2000 (12) TMI 99 - SUPREME Court] - Since appeal would be continuation of the assessment proceedings, filing of the material at an appellate stage would satisfy the requirement of presenting the same before completion of the assessment – there was no reason for interference in the order of the Tribunal though for reasons somewhat different from those recorded by the Tribunal – Decided against Assessee. - Tax Appeal No. 596 of 2013 With Civil Application No. 585 of 2013 - - - Dated:- 7-1-2014 - Akil Kureshi And Sonia Gokani,JJ. For the Petitioner : Mr. Manish J. Shah, Advocate For the Respondent : Mr. KM Parikh, Advocate ORDER (Per : Honourable Mr. Justice Akil Kureshi) 1. The assessee is in appeal against the judgment dated 30.11.2012 of the Income Tax Appellate Tribunal, ( the Tribunal for short). Following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal and reversed the decision of CIT(Appeals) making following observations:- This disallowance was deleted by Ld.CIT(A) as per para 5.1 of his order. We find that there is no decision of Ld.CIT(A) on this aspect of the matter i.e. non filing of mandatory form 10CCB with the return of income. Regarding this argument of the Ld.A.R. that this is a procedural lapse, we find that in various cases, it was held by the tribunal and various High Courts that if such procedural lapse is rectified and made good before completion of assessment proceedings, no adverse inference should be drawn but in the present case, even before completion of the assessment proceedings, the mandatory form 10CCB was not submitted by the assessee and hence, in our humble considered opinion, this order of Ld.CIT(A) cannot be sustained because even if it was a procedural requirement and the assessee could not submit the same along with return of income for any reason, there could not be any reason for non submission of the same before the completion of the assessment proceedings and the assessee in the present case has not submitted the same even during assessment proceedings. We are of the considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of the Apex Court in the case of Commissioner of Income-tax vs. Ace Multitaxes Systems Pvt. Ltd.(Karnataka High Court) reported in [2009] 317 ITR 0207 in which the Apex Court held that section 80-IA(7) does not cast any obligation on the assessee that the return must be accompanied by the audit report. In the said case, audit report was filed at an appellate stage, which was accepted by the High Court for the purpose of examining deduction under section 80IA of the Act. 5) Heavy reliance was placed on the decision of the Division Bench of this Court in the case of Commissioner of Income-tax vs. Mayur Foundation (Gujarat High Court) reported in [2005] 274 ITR 0562 in which it was observed that appeal would be continuation of the assessment proceedings. The Court approved the decision of the Tribunal where the assessee was held entitled to benefits under section 11(2) of the Act when necessary support for the claim was presented at the appellate stage before the Tribunal. 6) Reliance was also placed in the case of Commissioner of Income-tax vs. Medicaps Ltd. (Madhya Pradesh High Court) reported in [2010] 323 ITR 0554 in which the High Court of Madhya Pradesh held that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither before the Commissioner(Appeals) or before the Tribunal. He, therefore, urged us to examine the question on the admitted premise that no such report was presented till the Tribunal decided the appeal of the Revenue. We have accordingly proceeded on such factual basis. 10. In the application filed by the appellant for taking the report on record also, same facts emerge. The applicant has not stated that the report was submitted earlier before the lower authorities. Only request is to take the same on record. Why such report was not filed earlier is not stated. No grounds are made out to permit the applicant to produce the same at third appellate stage. 11. If this be the question, a serious consideration must be bestowed on whether the assessee, who had not previously furnished the report either before the Assessing Officer before completion of the assessment proceedings, failed to do so before the Appellate Commissioner or before the Tribunal till the second appeal was finally decided, at the appellate stage before the High Court can present a report requesting that the claim be granted. We have serious difficulty in accepting such a situation. Before giving our reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is hedged with certain conditions. Rule 46A of the Income Tax Rules, 1962 in this regard provides as under:- 46A.(1) The appellant shall not be entitled to produce before the Deputy Commissioner(Appeals) or, as the case may be, the Commissioner(Appeals), any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the Assessing Officer, except in the following circumstances, namely:- (a) where the Assessing Officer has refused to admit evidence which ought to have been admitted; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer; or (c) where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal; or (d) where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal. (2) No evidence shall be admitted under sub-rule(1) unless the Deputy Commissioner(Appeals) or, as the case may be, the Commissioner(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authority must have an information at the time when he completes the assessment in absence of any information for excluding particular part of the income from the net taxation under section 11. It will not be possible for the assessing authority to give the assessee the benefit of such exclusion and once the assessment is so completed, it would be futile to find fault with the Assessing Officer for having included such income in the assessable income of such assessee. It is reasonable to presume that the intimation required under section 11 has to be furnished before the Assessing Officer to complete the concerned assessment because such requirement is mandatory and without particulars of this income, the assessing authority cannot entertain the claim under section 11 of the Act. 16. We are conscious that this decision was explained by this Court in the case of Commissioner of Income-tax vs. Mayur Foundation (supra) observing that since appeal would be continuation of the assessment proceedings, filing of the material at an appellate stage would satisfy the requirement of presenting the same before completion of the assessment. In the present case, however, as noted ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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