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TMI Blog2002 (12) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... her, on the facts and in the circumstances of the case and in the light of the Supreme Court decision in Keshavji Ravji and Co. v. CIT and also in the absence of a statutory requirement like the one in subsection (4A) of section 80HHC, the Tribunal is justified in relying on CIT v. Malayalam Plantations Ltd. and does the same have application in the case on hand?" - the questions of law framed for the decision of this court are answered against the Revenue and in favour of the assessee. In other words, questions Nos. 1 and 3 are answered in the affirmative and question No. 2 in the negative. Accordingly, the appeal fails and it is dismissed. - - - - - Dated:- 4-12-2002 - Judge(s) : G. SIVARAJAN., K. BALAKRISHNAN NAIR. JUDGMENT The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ?" The brief facts of the case are the following: The respondent-assessee is a cashew exporter. He filed the return of income for the assessment year 1992-93 on October 24, 1992, declaring an income of Rs. 60,53,360. He claimed deduction under section 80HHC. The assessing authority disallowed a portion of the deduction claimed on the ground that the certificate as contemplated under sub-section (4A) of section 80HHC did not accompany the return. The copy of the order of the Assessing Officer is annexure A. But the said order was reversed by the Commissioner of Income-tax (Appeals) by annexure B order dated July 26, 1995. The first appellate authority took the view that the certificate contemplated under sub-section (4A) of section 80HHC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , being a holder of an Export House Certificate or a Trading House Certificate (hereafter in this section referred to as an Export House or a Trading House, as the case may be), issues a certificate referred to in clause (b) of sub-section (4A), that in respect of the amount of the export turnover specified therein, the deduction under this sub-section is to be allowed to a supporting manufacturer, then the amount of deduction in the case of the assessee shall be reduced by such amount which bears to the total profits derived by the assessee from the export of trading goods, the same proportion as the amount of export turnover specified in the said certificate bears to the total export turnover of the assessee in respect of such trading goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r auditing the accounts of the Export House or Trading House under the provisions of this Act or under any other law." A reading of the above statutory provisions would show that to get the deduction contemplated under sub-section (1A), the assessee has to file, inter alia, a certificate from the export house/trading house containing such particulars as may be prescribed and verified in the prescribed manner that in respect of export turnover mentioned in the certificate, the export house or trading house has not claimed the deduction under this section. In the case at hand, it is common case that the assessee has furnished the abovesaid certificate, but it was not furnished along with the return of income, but was submitted before the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 8A under the Income-tax Rules 1962, of filing a certificate for claiming the development allowance is mandatory. But, the said certificate need not necessarily be filed along with the return though such a requirement is there in the rules. In other words, the requirement to file the certificate along with the return was held to be directory. The provisions of the rule interpreted therein are identical to the provisions contained in sub-section (4A) of section 80HHC. But, learned senior counsel for the Revenue would submit that the Division Bench of this court was interpreting a statutory rule, whereas the point involved in the present case is the interpretation of a provision under the Act. So, according to learned senior counsel, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the audit report is mandatory, but it need not necessarily be filed along with the return of income. It can be produced any time before the completion of the assessment, it was held. It is no doubt, true, that the taxing statutes have to be interpreted strictly. It is also equally well settled that the use of the word "shall" in a provision need not necessarily make the direction contained therein mandatory. It has also been held by the courts that even though the word "may" is used in a statutory provision, still, it may be a mandatory provision. As rightly pointed by learned senior counsel for the Revenue, if a provision is couched in negative words, it is normally taken as mandatory. But, having regard to the context in which the neg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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