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TMI Blog2022 (11) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... be procedural it can be cured at a subsequent stage namely at the stage of filing the revised return or even during the course of assessment proceedings. If that was the finding of the learned Tribunal the natural consequence that has to flow is to allow the appeal of the assessee. However, assessee s appeal has been dismissed on the ground that the audit report has not been filed within the time prescribed under the statute. Tribunal though noted that such prescription of time limit was pursuant to an amendment it failed to take note of the fact as to whether such a amendment would apply to the assessment year under consideration namely A.Y. 2014-15. The amendment to the Act was brought about by the Finance Act 2020 (No. 12 of 2020) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the subsequent amendment in the Act requiring the audit report to be filed in prescribed manner within the prescribed time. As mentioned by us above, this issue was never an issue pointed out to the assessee at any earlier point of time and it appears that the issue had been taken up for consideration when the case was heard and orders were reserved by the learned Tribunal. In any event, such point could not have been put against the assessee when the same was never the case of the revenue before the Tribunal. The appeal filed by the assessee is to be allowed. The order passed by the learned Tribunal as well as order passed by the CIT(A) are set aside and also the order passed by the assessing officer dated 29.12.2016 in so far as i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirement was that the said report was required to be furnished along with return of income ? (iii) Whether the learned Tribunal was justified in directing the Assessing Officer to examine the factual aspect that having furnished Tax Audit Report in Form 10CCB electronically, whether the same was filed on the Income Tax Portal before the due date of filing return of income prescribed under the Act ? (iv) Whether the learned Tribunal has failed to appreciate that the requirement of obtaining the audit report in Form 10CCB before the specified date referred to in Section 44AB and furnishing the same by that date has been introduced in the statute by the Finance Act, 2020 with effect from 1.4.2020 and does not apply to the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x, Delhi Vs. Contimeter Electricals Private Limited; 2009 178 taxmann 422 (Delhi). The learned Advocate appearing for the appellant /assessee also placed reliance on the decision of this Court in the case of Murali Export House Vs. Commissioner of Income Tax 1999, 238 ITR 257 (Cal), wherein it was held that when a provision is procedural in nature requiring the assessee to submit a a special audit report along with return it has held to be derogatory and not mandatory. The decision in Moral Export House was quoted with approval by the Hon ble Division Bench of the High Court of the Karnataka in Commissioner of Income Tax Vs.A.C.E. Multi Tax Systems Pvt. Ltd. 2009 317 ITR 207 (Karnataka). As pointed out earlier the Tribunal has rightly taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause the assessment order was passed on 29th December, 2016, much earlier to the amendment. The CIT(A) also could not have taken note of the amendment because the order passed by the CIT(A) is dated 28th February, 2019. Therefore, if an issue is to be raised by the learned Tribunal suo-motu for the first time then the assessee is entitled to notice of such an issue being raised and should have afforded an opportunity to the assessee to put forth their submission. We find that such procedure was not adopted by the Tribunal. In any event, the learned Tribunal in paragraph 18 of its order having rightly noted the legal position ought to have granted relief to the assessee. Failure to do so, would result in order passed by the learned Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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