2006 (5) TMI 63

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....nt under section 143(1)(a) on the ground that the audit report in Form No. 3AC as required under section 33AB(2) has not been furnished along with the return of income. On appeal by the assessee, the Commissioner of Income-tax (Appeals) held that the claim under section 33AB cannot be determined in proceedings under section 143(1)(a) since the issue as to whether the claim has necessarily got to be supported by the audit report or not is a debatable issue and cannot form part of the prima facie adjustment to the returned income in terms of section 143(1)(a). The Revenue aggrieved by the abovementioned order filed appeal before the Income-tax Appellate Tribunal. The Tribunal dismissed the appeal holding that the Income-tax Officer was not....

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....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." The abovementioned provision only says that deduction under sub-section (1) of section 33AB shall not be admissible unless the accounts of such business of the assessee for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant 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. We are of the view that ....

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....ombay High Court in Shivanand Electronics' case [1994] 209 ITR 63 wherein the court held as follows: "It is well-settled that the question whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed." The court held: "The intent of the Legislature also has to be gathered not merely from the words used by the Legislature but from a variety of other circumstances and conditions. One of the tests often adopted is to ascertain whether the object of the Legislature will be defeated or furthered by holding it directory. If the object of the enactment will be defeated by holding it directory, it should be construed as mandatory whereas if by holding it man....