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TMI Blog2024 (10) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon ble Supreme Court in Wipro Ltd [ 2022 (7) TMI 560 - SUPREME COURT] also does not support the case of the Revenue. Thus, the amendment by the Finance Act, 2020 has only modified the due date for filing the audit report in Form no. 10CCB without any other significant change, considering which it cannot be said that the requirement is now mandatory in nature. Apart from the aforesaid delay in filing the Form no. 10CCB, there is no other allegation by the Revenue to deny the deduction claimed under section 80-IA(4)(iv) of the Act for the year under consideration, which is the 9th year of the claim of deduction by the assessee. Therefore Addl./Joint CIT(A) erred in upholding the disallowance of deduction claimed u/s 80-IA(4)(iv) - AO is directed to allow the deduction claimed by the assessee under section 80-IA(4)(iv) - Assessee appeal allowed. - Shri. Om Prakash Kant, Accountant Member And Shri. Sandeep Singh Karhail, Judicial Member For the Assessee : Shri. D. M. Rindani For the Revenue : Shri. Ashok Kumar Ambastha Sr. DR ORDER PER SANDEEP SINGH KARHAIL, J.M. The present appeal has been filed by the assessee challenging the impugned order dated 26/03/2024, passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the report in Form no. 3CA-3CD for the year under consideration was filed on 19/09/2022, i.e. before the due date of 07/10/2022. The learned AR submitted that the previous auditors used to file Form no. 3CD and Form no. 10CCB together for many years and the same was continued up to the assessment year 2021-22. However, in the year under consideration, the tax auditors of the company were changed. It was further submitted that Form no. 3CD, filed within the due date, also mentions that the assessee is eligible for the claim of deduction under section 80-IA of the Act. By referring to the affidavit of the Chartered Accountant, the learned AR submitted that the financials of the Wind Mill division of the company were audited on 24/08/2022 which were required to be filed electronically in Form no. 10CCB for claiming deduction under section 80-IA(4)(iv) of the Act. Thus, it was submitted that only due to initial technical error and inadvertence thereafter Form no. 10CCB could not be filed before the specified due date. 6. On the other hand, the learned Departmental Representative vehemently relied upon the impugned order and submitted that filing of Form no. 10CCB by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10CCB was wholly due to inadvertence on the part of the Chartered Accountant firm. 9. At this stage, it is pertinent to analyse the provisions of section 80-IA(7) of the Act, which lays down the requirement for filing the audit report in Form no. 10CCB. Section 80-IA(7) of the Act, as applicable during the year under consideration, is reproduced as follows: (7) The deduction under sub-section (1) from profits and gains derived from an undertaking shall not be admissible unless the accounts of the 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 sub-section (2) of section 288, before the specified date referred to in section 44AB and the assessee furnishes by that date the report of such audit in the prescribed form duly signed and verified by such accountant. 10. Further, Rule 18BBB of the Income Tax Rules, 1962 provides that the audit report, as required under section 80-IA(7) of the Act, shall be in Form no. 10CCB. Thus, from the plain reading of the provisions of section 80-IA(7) of the Act, as it stood during the relevant year, read with Rule 18BBB, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to reduce compliance burden on small and medium enterprises, it is proposed to increase the threshold limit for a person carrying on business from one crore rupees to five crore rupees in cases where,- (i) aggregate of all receipts in cash during the previous year does not exceed five per cent of such receipt; and (ii) aggregate of all payments in cash during the previous year does not exceed five per cent of such payment. Further, to enable pre-filling of returns in case of persons having income from business or profession, it is required that the tax audit report may be furnished by the said assessees at least one month prior to the due date of filing of return of income. This requires amendments in all the sections of the Act which mandates filing of audit report along with the return of income or by the due date of filing of return of income. Thus, provisions of section 10, section 10A, section 12A, section 32AB, section 33AB, section 33ABA, section 35D, section 35E, section 44AB, section 44DA, section 50B, section 80-IA, section 80-IB, section 80JJAA, section 92F, section 115JB, section 115JC and section 115W of the Act are proposed to be amended accordingly. Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be filed along with the return or the due date specified u/s 139(1) of the Act for claiming deduction u/s 80IA of the Act. We observe that the Hon'ble Delhi High Court in the case of CIT Vs. Contimeters Electricals Pvt. Ltd. (supra) held that the requirement of filing the audit report along with the return is not mandatory but directory and that if the audit report is filed at any time before framing of assessment the requirement of section 80IA(7) would be met observing as under: According to the Commissioner of Income Tax since no audit report, duly verified and signed in the prescribed Form no. 10CCB under Rule 18BBB had been furnished along with the return, the condition for claiming deduction had not been satisfied and, therefore, the action of the Assessing Officer in allowing rebate u/s 80-IA was erroneous and prejudicial to the interest of the Revenue. After issuance of the notice the Commissioner of Income Tax passed the order dated 29.03.2007 whereby he held that he was fully satisfied that the assessment which had been completed by the Assessing Officer was prejudicial to the interest of the Revenue and that it was erroneous in as much as the assessee had not sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the framing of the assessment, the requirement of section 80IA(7) would be met. 6. We find that similar view has been taken by the Hon'ble Madras High Court in the case of CIT Vs. AKS Alloys Pvt. Ltd. (supra), wherein it has been held as under: 5. In so far as it relates to the substantial question of law (1) is concerned, namely, whether the filing of audit report in Form 10CCB is mandatory, it is well settled by a number of judicial precedents that before the assessment is completed, the declaration could be filed. In fact, the said issue came to be decided by the Karnataka High Court in the case in CIT v. ACE Multitaxes Systems (P.) LTD. [2009] 317 ITR 207 (Kar.), wherein it was held that when a relief is sought for under Section 80IB of the Act, there is no obligation on the part of the assessee to file return accompanied by the audit report, thereby, holding that the same is not mandatory. Therefore, it is clear that before the assessment is completed if such report is filed, no fault could be found against the assessee. That was also the view of the Delhi High Court in the case in CIT v. Contimeters Electricals (P.) Ltd. [2009] 317 ITR 249/ 178 Taxman 422 (Delhi), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of declaration to the Assessing Officer before the due date of furnishing the return of income under sub-section (1) of section 139 of the Act. However, in the facts of the aforesaid case, the taxpayer filed the declaration as required under section 10B(8) alongwith the revised return of income, i.e. after the due date of filing of the original return under section 139(1) of the Act. Admittedly in the present case, the audit report in Form no. 10CCB was filed on 17/10/2022, i.e. prior to the due date for furnishing the return of income under sub-section (1) of section 139 of the Act and before the filing of return of income by the assessee on 04/11/2022. Further, as noted above, the amendment by the Finance Act, 2020 has reduced the timeline for filing the audit report in Form no. 10CCB only with an intention to enable the pre-filing of returns in case of persons having income from business or profession. The fact that the assessee filed the audit report in Form no. 10CCB on 17/10/2022, even though delayed by 10 days, however the same was filed before the filing of the return of income by the assessee, and thus in our considered view, the same is in conformity with the intentio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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