TaxTMI 
TaxTMI 
2008 (4) TMI 272
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.... The following common question of law has been raised in the present appeals: " Whether on the facts and circumstances of the case, the learned Income Tax Appellate Tribunal was justified in holding that even if the company did not fulfil the condition of sub section (5) of Section 32 AB, it is entitled for deduction under section 32 AB." Brief facts of the case are that the assessee (hereinafter referred to as "the Respondent-assessee") is U.P. Government undertaking engaged in the construction of buildings etc for U.P. Government, other Government or Semi Government organisation. For the assessment year, 1987-88, return was filed on 25.02.1988. Subsequently, revised return was filed on 19.07.1989. Original assessment order under sec....
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....rder, assessee filed appeal before the Commissioner of Income Tax (Appeal). The Commissioner of Income Tax (Appeal) vide order dated 09.02.1994 allowed the appeal in part and issued a direction to the assessing officer to allow deduction under section 32 AB of the Act, if other condition of Section 32 AB of the Act are satisfied. Revenue filed appeal before the Income Tax Appellate Tribunal. Following its earlier decision for the assessment year, 1987-88 dismissed the appeal which is impugned in the present appeal. Heard Sri D.D.Chopra, learned Senior Standing Counsel appearing on behalf of the Department. No one appears on behalf of the assessee. Learned Standing Counsel submitted that unless the assessee fulfils the condition provided....
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....hout depositing any amount in the deposit account under clause (a), in accordance with, and for the purposes specified in, a scheme (hereafter in this section referred to as the scheme) to be framed by the Central Government, or if the assessee is carrying on the business of growing and manufacturing tea in India, to be approved in this behalf by the Tea Board, the assessee shall be allowed a deduction (such deduction being allowed before the loss, if any, brought forward from earlier years is set off under section 72) of - (i) a sum equal to the amount, or the aggregate of the amounts, so deposited and any amount so utilised; or (ii) a sum equal to twenty percent of the profits of business or profession as computed in the accounts of t....
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....ull Bench of Punjab and Haryana High Court in the case of Commissioner of Income Tax Versus Punjab Financial Corporation reported in (2002) 254 ITR, 6 and before the Division Bench of the Calcutta High Court in the case of Commissioner of Income Tax Versus Berger Paints (India) Ltd reported in (2002) 254 ITR, 503. In the case of Commissioner of Income Tax Versus Punjab Financial Corporation (supra), the Full Bench of Punjab and Haryana High Court held as follows: "We may now analyse sub-sections (1) and (5) of Section 32 AB of the Act in order to determine whether the requirement of furnishing the report of the audit in the prescribed form along with the returns of income embodied in sub-section (5) is mandatory and non-compliance there....
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....deduction of a sum equal to the amount so utilised. The purpose of sub-section (1) of Section 32 AB is to give an incentive in the form of deduction on the amounts deposited with the Development Bank or utilised for the purchase of new ship, new aircraft, new machinery or plaint, of course, subject to the fulfilment of the conditions embodied in that sub-section. Sub-section (5) of Section 32 AB of the Act is couched in a negative form. It declares that deductions under sub-section (1) shall not be admissible unless the account of the business or profession of the assessee 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-sectio....
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....evelopment Bank before the expiry of six months from the end of the previous year or before furnishing the return of his income, whichever is earlier. In this context, it is important to bear in mind that Section 139 of the Act, which provides for filing of return in the prescribed form within the stipulated time also provides for filing of revised return and rectification of defect in the return. Therefore, the requirement of filing the duly audited report along with the return cannot be treated as mandatory and the assessee cannot be deprived of the benefit of deduction if the same is filed before the finalisation of the assessment. In other words, the Assessing Officer can, for the purpose of allowing deductions in terms of sub-section (....