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TMI Blog2003 (4) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Tribunal for fresh consideration - - - - - Dated:- 8-4-2003 - Judge(s) : G. SIVARAJAN., J. M. JAMES. JUDGMENT The judgment of the court was delivered by G. SIVARAJAN J. - The Income-tax Appellate Tribunal, Cochin Bench, has referred the following two questions of law under section 256(1) of the Income-tax Act, 1961 (for short "the Act") for decision by this court at the instance of the Revenue: "1. Whether, on the facts and in the circumstances of the case, and also in view of the fact that the assessee had failed to create the reserve before the closing of the accounts and drawing of the profit and loss account, the assessee was entitled to the benefit of section 80HHC of the Income-tax Act? 2. Whether, on the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel further submitted that at any rate the assessee should have complied with the said requirements at any time before the completion of the assessment that, in the instant case, the profit and loss account was finalised and approved by the annual general body meeting held on September 30,1986, and that the assessee did not create any reserve in the said profit and loss account. The senior counsel also submitted that the assessee had made the debit in the profit and loss account and created a reserve only during the pendency of the appeal before the Commissioner of Income-tax (Appeals) by way of reopening of the profit and loss account already finalised and approved by the annual general body which is not permissible. He also submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s letter dated August 19,1987, addressed to the Institute of Chartered Accountants of India, New Delhi, extracted in paragraph 4 of the appellate order of the Tribunal. Counsel further submitted the once the profit and loss account is reopened and corrections made it relates back to the previous year and consequently that will amount to fulfilment of the requirements of the proviso to section 80HHC(1) of the Act. Counsel also referred to the decisions of the Andhra Pradesh High Court in Veerabhadra Iron Foundry v. CIT [1968] 69 ITR 425 and of the Rajasthan High Court in CIT v. Mazdoor Kisan Sahkari Samiti [1970] 75 ITR 253 which has taken the view that the profit and loss account can be amended to comply with the requirements of the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied on the circular issued by the Department of Company Law Affairs in the letter dated August 19,1987. Even for application of the communication issued by the Department of Company Law Affairs it has to be established that the present case is one which falls under the said clarification. In order to appreciate the communication issued by the Department of Company Law Affairs it is necessary to see the query which is raised by the Institute of Chartered Accountants. Further, it has to be ascertained as to whether the situation in the present case is one falling under the special circumstances and can be treated as one for meeting the technical requirements of taxation laws. The first appellate authority has not made any effort to find out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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