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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 ..... ned at this stage by the High Court and in fact has to be treated as conclusive - 34 of 1996 - - - Dated:- 27-2-2009 - Pinaki Chandra Ghose and Sankar Prasad Mitra, JJ. JUDGMENT This is an appeal filed by the assessee relating to the assessment year 1991-92 for which the accounting year ended on 31 st March, 1991. The appeal arises out the assessment made on 21 st March, 1994 under Section 143(3) of the Act. The assessee is a public limited company engaged in the business of paints. The assessee company established new units in Naihati, West Bengal and Sikandrabad, U.P. As regards the Naihati unit, the company made a claim which was refused on two grounds. The first was that the audit report in respect of the unit was filed very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee has furnished a memorandum of profit and loss account which is appearing at page 26 of the paper book in respect of the unit. The memorandum was also supported by an audit report furnished, in the prescribed form, which was placed at page 25 of the paper book. The Tribunal also found that the assessee has elaborated its claim by letter dated 31 st December, 1993 furnished before the assessing officer which gave the basis of the apportionment as well as the figures concerned. The Tribunal was, therefore, of the view that the assessee's claim could not be resisted. The Tribunal accordingly directed the assessing officer to allow the claim. The matter has been referred by the department before this Court for opinion on the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and the benefit has to be given to the assessee, accordingly, we do not intend to give any answer in respect of question nos.1, 2 and 3. In respect of question no.4, he drew our attention to Section 80-I(7) which reads as follows: "Where the assessee is a person other than a company or a co-operative society, the deduction under Sub-section (1) from profits and gains derived from an industrial undertaking shall not be admissible unless the accounts of the industrial undertaking for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant, as defined in the Explanation below Subsection (2) of section 288, and the assessee furnishes, along with his return of income, the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relied upon a decision reported in 247 ITR 178 [K. Ravindranathan Nair v. Commissioner of Income Tax] when the Supreme Court reversing the decision of the High Court came to the conclusion that there was no challenge by the Revenue to the facts found by the Tribunal before the High Court. Therefore, Dr. Pal submitted that the Tribunal after analysing the documents placed before it, came to the conclusion and without challenging the said facts the department cannot reopen the same or cannot question the authority of the Tribunal to come to such conclusion. Therefore, according to Dr. Pal, the Section 80-I(7) is not a mandatory provision. The said Section is directory in nature and if the audit report has not been filed along with the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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