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TMI Blog2008 (8) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... of deduction under section 80HHC when the said claim was neither made nor certificate of the auditor was filed under section 10CCAB of the Act along with the return of income?" 2. This court has admitted this tax appeal on August 30, 2000, reframing the following substantial question of law: "Whether the Appellate Tribunal was right in making a remand of the case to the assessing authority for considering the claim of deduction under section 80HHC regardless of the fact that in accordance with sub-section (4) of the said section, the assessee had not submitted the requisite report with the certification of the accountant and the said report with the certificate was produced in the course of assessment ?" 3. The facts giving rise to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of an accountant along with the return of income as provided under section 288 sub-sections (1) and (2) along with the Explanation thereto. 5. Being aggrieved by the said order of the Commissioner of Income-tax (Appeals) the assessee took up the matter before the Income-tax Appellate Tribunal, Ahmedabad, and the Tribunal took the view that the Assessing Officer should not have rejected the claim of the assessee on merely technical ground. The Tribunal, therefore, remitted the said issue back to the Assessing Officer directing him to consider the claim of the assessee in accordance with law. 6. It is in the above background of the matter, the present appeal is filed by the Revenue. 7. Mrs. Mauna R. Bhatt learned standing counsel appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue is squarely covered by the decision of this court in the case of CIT v. Gujarat Oil and Allied Industries reported in [1993] 201 ITR 325. He has submitted that the said decision has been followed by this court in a subsequent decision in the case of Zenith Processing Mills v. CIT reported in [1996] 219 ITR 721. 9. Mr. Tushar Hemani has further submitted that the Calcutta High Court in the case of CIT v. Magnum Export P. Ltd. reported in [2003] 262 ITR 10 (Cal) has gone one step further and held that the deduction cannot be disallowed simply because the audit report was not furnished along with the return. The purpose of incorporation of sub-section (4) was to enable the Assessing Officer to ascertain the claim for deduction on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the apex court, Mr. Hemani has urged that the Tribunal has rightly decided the appeal against the Revenue and in favour of the assessee and directed the Assessing Officer to consider the claim of the assessee under section 80HHC of the Act on its own merits. 12. We have heard the learned counsel appearing for the assessee and the Revenue at great length. We have gone through the orders passed by the authorities below. We have also considered the relevant statutory provisions as contained in section 80HHC of the Act and the authorities cited before the court. We are of the view that the issue is covered by the decision of this court in the case of CIT v. Gujarat Oil and Allied Industries [1993] 201 ITR 325. The question for consideration be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J(1) is made fully operative should be preferred. 13. This very principle was reiterated by this court in the case of Zenith Processing Mills v. CIT [1996] 219 ITR 721, wherein it is held that from the perusal of sub-section (6A) of section 80J of the Income-tax Act, 1961, for claiming deduction under section 80J, it is apparent that compliance in respect of two things is necessary. The first requirement is that the statement of accounts for the previous year relevant to the assessment year for which deduction is claimed must have been audited by an accountant and the second is that the assessee must furnish along with his return of income the report of such audit in the prescribed form duly signed and verified by such accountant. The form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent stage and in any case, before the assessment proceeding is completed, the assessee's claim for deduction under section 80HHC of the Act cannot be disallowed. 15. This view which we are taking is duly supported by earlier two decisions of this court and we have found support from the decision of the hon'ble apex court in the case of CIT v. Nagpur Hotel Owners' Association reported in [2001] 247 ITR 201, where the hon'ble apex court has observed that it is abundantly clear from the wording of sub-section (2) of section 11 of the Income-tax Act, 1961, that it is mandatory for the person claiming the benefit of section 11 to intimate to the assessing authority the particulars required, under rule 17 in Form No. 10 of the Income-tax Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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