TaxTMI 
TaxTMI 
2019 (5) TMI 1253
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....ioner of Income Tax (u the AO'') in reopening the assessment proceedings u/s 147 of the Income Tax Act, 1961 (''the Act"). 2. The learned CIT(A) erred in fact and in law in confirming the action of the AO in reopening the assessment u/s. 147 based on change of opinion. 3. The learned CIT(A) erred in fact and in law in confirming the action of the AO in disallowing deduction claimed u/s. 1OA amounting to Rs. 25,15,494/-. 4. Without prejudice to Ground No. 3, the learned CIT(A) erred in fact and in law in confirming the action of the AO in not allowing the claim of deduction u/s. 10A of the Act despite the fact that the necessary certificate in Form No. 56F was duly filed before the AO before the completion of assessment. 5. The learned CIT(A) erred in fact and in law in confirming the action of the AO in charging interest u/s 234B of the Act. 6. The learned CIT(A) erred in fact and in law in confirming the action of the AO in charging interest u/s 234C of the Act. 7. The learned CIT(A) erred in fact and in law in confirming the action of the AO in charging penalty u/s 271(l)(c) of the Act. Your appellant craves th....
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....n form 56F. The view taken by the AO was subsequently confirmed by the learned CIT (A). At this juncture we find important to reproduce the provisions of section 10A of the Act which reads as under: ^66[Special provision in respect of newly established undertakings in free trade zone, etc. ^67 10A. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXX (5) The deduction under 74[this section] shall not be admissible for any assessment year beginning on or after the 1st day of April, 2001, unless the assessee furnishes in the prescribed form 75, alongwith the return of income, the report of an accountant, as defined in the Explanation below sub-section (2) of section 288, certifying that the deduction has been correctly claimed in accordance with the provisions of this section. 8.1 A perusal of the above provisions reveals that the deduction under section 10A of the Act will be available to the assessee only in the event the assessee furnishes the necessary details in the prescribed form. Therefore nonfiling of the report in the prescribed form will disentitle the assessee from claiming deduction under section 10A of the Act. 8.2 However, we note that the Hon'ble ....
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....; report has not physically accompanied the return while another assessee who waits till the end of the expiry of the period and files the return with the report will stand to gain, as he would get the benefit of section 80J(1) while the assessee who files the return at the first opportunity would stand to suffer though, in both the cases, at the time when the assessments are framed, the audited reports are made available by both the assessees to the ITO. This would result in absurdity. Hence, the Tribunal was right when it took the view that the second part of the provision regarding furnishing of the report of the auditor along with the return was not a mandatory provision and it requires substantial compliance in the sense that it should be made available to the ITO before the assessment was framed and, by that time, if the assessee puts his house in order, the ITO would be required to consider the case of the assessee for deductions under section 80J(1) on the merits." 8.3 It is an undisputed fact that the assessee has filed the report in the prescribed form before the completion of the assessment proceedings under section 147 of the Act. Therefore we are of the view that th....
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....cer. Thereafter, the AO reopened the assessment under sec, 147 of the Act for the reason that audit report in Form 10CCB was not filed along with the return of income. In response to the notice issued under sec, 148 of the Act, the assessee submitted before the Assessing Officer that original return of income already filed on 2.12.2003 and 29.10.2004 for the Assessment Years 2003-04 and 2004-05 respectively may be treated as a return filed under sec. 148 of the Act. Thereafter, the assessee vide letter dated 12.01.2009 and 17.08.2009 in the reassessment proceedings for the Assessment Years 2003-04 and 2004-05 respectively submitted, amongst others, before the AO that filing of audit report along with the return of income is not mandatory but is to be treated as director and filing of the audit report during the assessment proceedings will be sufficient to comply the provisions of law contained in that behalf and accordingly, a copy of form 10CCB dated 20.04.2003 and 10.10.2004 obtained from Aggarwal Sarraf & Co, Chartered Accountant, pertaining to the Assessment Years 2003-04 and 2004-05, was furnished. It is, thus, clear that the audit report in Form 10CCB was available with the A....