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TMI Blog1990 (10) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention of the learned D.R. is that furnishing the audit report along with the return is a mandatory requirement of sec. 80HH(5) and, therefore, the action of the ITO was right in law. Support for this argument has been sought from the Punjab Haryana High Court decision in the case of CIT v. Jaideep Industries [1989] 180 ITR 81/45 Taxman 444. On the other hand, the learned counsel for the assessee has supported the view of the learned CIT(A) with a number of Tribunal's decisions and the ratio in the decision of the Gujarat High Court in the case of Billimora Engg. Mart v. CIT [1985] 156 ITR 153. In our opinion the order under appeal should call for no interference by us. 3. Section 80HH(5) reads as under : " Where the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of the claim is to be considered at the time of making assessment makes the requirement of furnishing the audit report 'along with the return' simply desirable or, in other words, directory and not mandatory. We think, we are supported in our view with the decisions of the Tribunal in the cases of Gujarat Oil Allied Industries v. ITO [1982] 14 TTJ 552 (Ahd.), Rathi Gum Industries v. ITO [1982] 14 TTJ 655 (Jp.) and Madhu Krimps v. Fourth ITO [1985] 22 TTJ 275 (Bom.). It can hardly be disputed that sec. 80HH(5) is a procedural provision and, as held by the Supreme Court in the case of CST v. Auraiya Chamber of Commerce [1987] 167 ITR 458, " in interpreting the procedural provisions of an Act, fairness and justice should be the approac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court and the High Court of Gujarat in the matter of interpreting the procedural provisions in a fiscal statute. We have also mentioned that the Tribunal has consistently taken the view of the provisions of sec. 80HH(5) which we have adopted in this case. With great respects to their Lordships of the Punjab Haryana High Court we prefer to follow the approach of the Supreme Court and the Gujarat High Court in the matter before us. 5. In the instant case the undisputed position is that the assessee is entitled to the benefit of sec. 80HH. Undisputedly the return was filed on 29-6-1982 and that was not supported with the audit report. The audit report was filed on 3-8-1984. No defect is pointed out therein. It is in Form 10C and duly ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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