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TMI Blog2011 (4) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other. 2. The assessee is a reader in the University of Delhi. She is a writer and has authored the book Difficult Daughters and for the same, she has received the royalty. The income of the royalty has been included in the gross total income of the assessee. The only issue involved in the appeal is not allowing deduction under s. 80QQB amounting to ₹ 1,63,075 as claimed by the assessee in the return of income on account of royalty received from outside India. 3. The assessee has claimed that the certificate in prescribed Form No. 10CCD was received subsequent to the filing of return of income on 28th July, 2006, therefore, it could not be submitted along with the return of income. It is submitted by the learned Authorised Representative that the scrutiny assessment proceedings were initiated in October, 2007 and thereafter the case was adjourned on various occasions without much of hearing. Finally the assessment proceedings were expedited in the month of December, 2008, and during that period, the tax counsel of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuations, he will have to examine the case and it is only thereafter that one of such eventualities may arise. It may also be worthwhile to notice here that taxation appeals cannot be put at par with civil appeals under the CPC. There it is the adjudication of claims of two parties which is known as adversary system. This is not the situation in the tax appeals because in such appeals, the Revenue authority concerned is not an adversary or opponent in the sense of the term like in civil cases. The whole purpose of the Revenue authority being arrayed as an opponent is one to ensure that the assessment is made as per the requirements of law irrespective of its outcome. Even if it be assumed for the sake of argument that the necessary certificates in Form Nos. 10C and 10D were not attached along with his return of income, still what could be done by the ITO and being within the competence of the CIT(A), he ought to have gone into it and then framed assessment or remitted the case back to the ITO to proceed in accordance with law in the face of such certificates. No exception can be taken to the orders passed by Tribunal in appeal as it was the only order it should have and in fact it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 988-89 presently under consideration. It is also not in dispute that the assessee had utilised an amount of ₹ 1,51,200 for purchase of new plant and machinery. Thus, the total of the deposit with Development Bank and the amount utilised for purchase of new plant and machinery worked out to ₹ 11,51,200. The assessee had claimed that the amount of ₹ 11,51,200 qualified for deduction under s. 32AB, as it was less than 20 per cent of eligible profits worked out as per the audit report. In the case of Government company, the auditor is appointed by the Central Government on the advice of the C AG. If that be so the appointment of auditor is not within the control of the assessee-company. It was under the relevant provisions of the Companies Act, 1956, that the assessee was required to get its accounts audited. It is stipulated in the proviso to sub-s. (5) that in such cases, it shall be sufficient compliance of sub-s. (5) if the assessee gets the accounts audited under such law (in this case under the Companies Act of 1956) and furnishes the said audit report and further report in the prescribed Form No. 3AA for claiming deduction under s. 32AB. The requirement of fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April, 2003, and exemption under s. 10(20) was no longer available to the assessee-Even though the assessee was granted registration under s. 12AA, CIT(A) declined to grant the consequential benefits on procedural grounds, such as, assessee did not file the return in the status of a charitable institution, the return did not accompany the requisite audit report and other mandatory details, etc.-Not justified-In the facts and circumstances, interest of justice demanded that assessee's request for exemption be examined afresh-Restrictions on the powers of the AO do not affect the powers of the Tribunal to issue appropriate directions to the AO in the interest of justice-Hence, matter is remitted to the AO with a direction to examine the matter, on merits, for eligibility to exemption as a result of the registration under s. 12AA now available to the assessee and in the light of the requisite audit report and other documents now filed by the assessee and decide the matter by way of a speaking order, in accordance with the law. Reliance was placed on the decision of CIT v. Ace Multitaxes Systems (P) Ltd. [2009] 317 ITR 207 (Kar.) and Tribunal, Chennai 'C' Bench in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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