9911796707
TMI Blog1999 (4) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... be computed under the provisions of section 40(c) and not section 40A(5) of the Income-tax Act, 1961?" This reference pertains to the assessment year 1980-81. So far as the controversy in question No. 2 is concerned, learned counsel for the parties are agreed that the controversy therein stands concluded in favour of the assessee by the decision of the Supreme Court in CIT v. Continental Construction Ltd. [1998] 230 ITR 485 and decision of this court in CIT v. Hico Products Pvt. Ltd. (No. 1) [1993] 201 ITR 567. In view of the above position, question No. 2 is answered in the affirmative, i.e., in favour of the assessee and against the Revenue. The only question that survives for consideration is question No. 1. The controversy therein pertains to an allowance of investment allowance under section 32A(2B)(ii) of the Act. The material facts giving rise to this controversy are as follows : The assessee claimed investment allowance at the higher rate of 35 per cent. under section 32A(2B)(ii) of the Act in respect of the machinery and plant installed by it in its industrial undertaking. The Income-tax Officer did not accept the claim of the assessee for higher investment allowanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n received from the prescribed authority by the assessee by that time, but the asses see enclosed the application filed before the prescribed authority for such certificate along with the return and on the receipt of the certificate produced the same before the Income-tax Officer in the course of assessment proceedings. The controversy is whether furnishing of the certificate in such circumstances before the Income-tax Officer in the course of assessment proceedings can be regarded as fulfilment of the requirements contained in clause (ii) of section 32A(2B) of the Act. In other words, the controversy is whether the requirement of furnishing the certificate "along with his return of income" is mandatory or directory. Learned counsel for the assessee submits that it is not mandatory but directory. Reliance is placed in support of this contention on the decision of this court in CIT v. Shivanand Electronics [1994] 209 ITR 63, which deals with section 80J(6A) of the Act wherein also there is a requirement of furnishing along with his return of income the report of audit in the prescribed form duly signed and verified by the accountant. This court held in that case that the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratory financed by the Government' means a laboratory owned by any body [including a society registered under the Societies Registration Act, 1860 (21 of 1860)], and financed wholly or mainly by the Government; (b) 'public sector company' means any corporation established by or under any Central, State or Provincial Act, or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); (c) 'university' means a University established or incorporated by or under a Central, State or Provincial Act and includes an institution declared under section 3 of the University Grants Commission Act, 1956 (3 of 1956), to be a University for the purposes of that Act." As stated earlier, there is no dispute in this case about the fulfilment of any of the conditions of the above sub-section which entitles the assessee to claim investment allowance at the higher rate, except the condition of furnishing along with the return of income the certificate from the prescribed authority as required by clause (ii) thereof. There is also no dispute about the fact that the assessee had applied for such certificate to the prescribed authority in time and as the same was not receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts should be audited by an accountant. This condition, as stated earlier, is mandatory. So far as the second condition which requires the assessee to furnish the report along with the return to the Income-tax Officer is concerned, we feel that for the purpose of determining whether it is mandatory or directory, it can be further sub-divided into two : (i) The assessee should furnish to the Income-tax Officer a report of the accountant who had audited the accounts in the prescribed form, duly signed and verified by such accountant; (ii) such report should be filed along with the return of income. The first requirement of filing of the report again appears to be mandatory. Failure to file the same is fatal. But that is not so in so far as the requirement of filing it along with the return is concerned. If, in a given case, an assessee fails to file such report along with the return and files it subsequently but before completion of the assessment, it would not be fatal to the claim of the assessee and the Income-tax Officer will have the power to accept the same if he is satisfied that the delay in filing the same was for good and sufficient reasons. This, however, does not mean tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
