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TMI Blog2009 (2) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... laim which was refused on two grounds. The first was that the audit report in respect of the unit was filed very late by the assessee and not with the return of income. The Tribunal on such point held that it was not required in case of the company in terms of Section 80-I(7) of the Act that the audit repot has to be filed along with the return and such defect also could be cured. Secondly, the Tribunal after assessing the documents placed before it held in favour of the assessee and stated that the assessee made the apportionment of expenses on different criteria whereas the assessing officer apportioned the expenses wholly on the basis of the turnover. For example, the assessee apportioned the salary of quality control staff, raw ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o allow the claim. The matter has been referred by the department before this Court for opinion on the following questions: "1) Whether on facts and in the circumstances of the case, the I.T.A.T. was justified in law in holding the method of accounting adopted by the assessee as an acceptable method for the purpose of the Income Tax Act, 1961 and consequently in striking down the Assessing Officer's action u/s. 145(1)? 2) Whether on facts and in the circumstances of the case, the I.T.A.T. was justified in law in holding that the duty components relatable to closing stock of finished goods constitute a deduction "otherwise allowable under the I.T.A.T. 1961" for A/Y 91-92 considering the method of accounting adopted by the assessee, so as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion below Subsection (2) of section 288, and the assessee furnishes, along with his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant." According to Mr. Agarwal, it is the duty of the assessee to file return along with the audit report and in the instant case, according to him, no such audit report was filed by the assessee at the time of filing of the return. But subsequent thereto, it has been specifically admitted that such audit report was filed. According to him, it is a mandatory provision and such action on the part of the assessee cannot cure the defects in respect of the return filed by them under Section 80-I(7). On the contrary, it has been submitted by Dr. Pal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory provision. The said Section is directory in nature and if the audit report has not been filed along with the return it really can be cured when the assessee has duly filed the audit report subsequent to filing of such return and before the mater is taken up for hearing. In the circumstances, in our considered opinion, the Tribunal after assessing the facts and documents placed before it came to the said conclusion and the said facts cannot be questioned at this stage by the High Court and in fact has to be treated as conclusive. Furthermore, in our opinion, if the assessee has already filed the audit report after filing of the return and before the assessment was made then we cannot take away the right of the assessee to rely on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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