TaxTMI 
TaxTMI 
2016 (4) TMI 645
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....09 by CIT(A)-5, A'bad upholding the disallowance u/s 80IB(10) of Rs. 2,66,002/-, is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the explanations furnished and the evidence produced by the appellant. 2.1 The Ld. CIT('A) has grievously erred in law and or on facts in confirming the disallowance of the deduction claimed u/s.80-16(10) of Rs. 2,66,002. 2.2 That in the facts and circumstances of the case, the Ld.CIT(A) ought not to have confirmed disallowance of deduction u/s.80-IB(10) especially when the very issue has been decided in favour of the appellant for A.Y.2001-02 by ITAT and for A.Y. 2006-07 by....
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.... deduction u/s 80IB(10) of the Act was submitted. Assessing Officer denied the deduction u/s 80IB(10) of the Act for two reasons namely -(i) assessee had been denied deduction u/s 80IB(10) in earlier years and matter being still sub-judice and (ii) nonfiling of audit report in form no.10CCB of the Act for claiming deduction u/s 80IB(10) of the Act along with return of income. Accordingly, income of the assessee was assessed at Rs. 2,72,913/-. 4. Aggrieved, assessee went in appeal before ld. CIT(A). However, ld. CIT(A) dismissed the appeal of assessee by observing as under :- 4.3. I have considered the facts of the tase and submission made by the appellant. In this case, the AO has disallowed the claim of deduction u/s80IB(10) amounting t....
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....arked "as advised to us by the assessee claim u/s.80IB(10) was admissible." Further the notes of accounts was also made by the auditor as under- (2) As advised to us by the assessee claim u/s.80IB(10) is available and 23 have been disclosing the same as a reply to point 26 of the form 3CD. The assessee has requested us. to continue with the same disclosure till to the date of finalization & disposal of appeal of the Income Tax Department with ITAT, Ahmedabad. Therefore, we have continued to show that claim is admissible but the same should be viewed in the light of above. 4.5. So AO observed that from the above notes given by the auditor it was apparent that the auditor himself was not convinced about the eligibility of the claim of ded....
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....So it was not the observations of the auditor on merit but was the advice of the appellant. Further in the notes on accounts he has also qualified his observations. Thus the ground of the appellant are dismissed. 5. Aggrieved, assessee is now in appeal before the Tribunal. 6. The ld. AR submitted that assessee has been regularly claiming deduction u/s 80IB(10) of the Act and even the Tribunal in assessee's own case in ITA No.1576/Ahd/2005 for Asst. Year 2001-02 vide its order dated 12.4.2007 has held that assessee is entitled for deduction u/s 80IB(10) of the Act and the same should have been allowed for this year also. Ld. AR further submitted that the assessee should have been given a reasonable opportunity to furnish the audit report i....
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.... 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, 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. Rule 18BBB. (1) The report of the audit of the accounts of an assessee, which is required to be furnished under sub-section (7) of section 80-IA or sub-section (7) of section 80-I, except in the cases of multiplex theatres as defined in sub-section (7A) of section 80-IB or convention centres as defined in sub-section (7B) of section 80-IB 1[or hospitals in rural areas as defined in sub-section (11....
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.... eligible business shall not be admissible unless the account of the undertaking for the previous year relevant to assessment year for which the deduction is claimed have been audited by Accountant as defined in the Explanation below subsec.( 2) of section 388 of the Act and the assessee furnishes along with his return of income, the report of such audit in the prescribed form and duly signed and verified by such Accountant. The relevant prescribed form is form no.10CCB which is provided in Rule 18BBB of IT Rules which has been reproduced above. 9. From going through the records carefully we find that report in form no.10CCB which was mandatorily required has not been furnished along with the return of income and this is further supported ....