TaxTMI 
TaxTMI 
TaxTMI 
2017 (9) TMI 2036
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....nted. 2. The brief facts of the case is that assessee is a partnership firm who filed its return of income on 18/10/2012 declaring total income of Rs. 80550/- and wherein deduction under section 80IC of the Income Tax Act of Rs. 5024393/- was claimed. As the assessee filed its return of income beyond the time limit specified under section 139(1) of the income tax act. Therefore, the deduction under section 80IC of Rs. 5024393/- was denied as during the course of assessment proceedings assessee neither filed any evidence in support of his claim for deduction and/or the report of chartered accountant in form No. 10 CCB. Therefore, the assessment under section 144 of the Income Tax Act was passed on 30/03/2015 determining total income of Rs. 10518530/-. 3. Aggrieved by the order of the Ld. assessing officer assessee preferred an appeal before the Ld. CIT(A), who wide order dated 26/04/2016 held that there is no provision under the act as well as the judicial precedents for furnishing form No. 10 CCB after the completion of the assessment. Therefore, even on this ground appellant was not entitled according to him for deduction under section 80 IC of the act. It was further held by hi....
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....de by the Tribunal. Therefore, if it is filed before the decision by the Tribunal in respect of a receipt on transfer of an import licence then the relief cannot be denied provided the filing of the audit report along with the return is not mandatory. 18. That apart in CIT v. Shivanand Electronics [1994] 209 ITR 631 (Bom.), a Division Bench had held while dealing with section 80J(6A) that an audit report required thereunder to be filed along with the return of the income was not mandatory in the context that a benefit of deduction is available under section 80J(6A) on fulfilment of certain conditions. Those conditions may be mandatory. The requirement of filing of the report may be mandatory. But that is not so insofar as the requirement of filing it along with the return is concerned. In a given case, if the assessee failed to file such report along with the return and filed it subsequently but before completion of the assessment, it would not be fatal. In CIT v. Punjab Financial Corpn. [2002] 254 ITR 61 (Punj. & Har.) (FB), it was held that filing of audit report under section 32AB(1)/(5) along with return is not mandatory. A part of the statute has to be construed with referen....
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.... defect though it may point out the same to be assessee. 20. In the present case, the notice under section 143, which was so pointed out by the Assessing Officer that admittedly the assessee did not furnish the report in respect of the claim against the receipt on transfer of the import licence until before the learned Tribunal. But then the assessment has not become final till then. Even at that stage leave may be asked for, when it is brought to the notice of the assessee for removing the defect. Be that as it may, we may not be concerned with that proposition. 21. The High Court at Calcutta in a Single Bench in Murali Export House v. CIT [1999] 238 ITR 257 had occasion to deal with this question having regard to section 80HHC with reference to sub-section (5) and sub-section (9) of section 139. In the said decision, it was held that second part of sub-section (4) of section 80HHC regarding furnishing of the special audit certificate along with the return is not mandatory provision but only a directory one. If it is found that some document required to be filed along with the return was not filed, the same may be allowed to be filed within a time specified before making any c....
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....at the appellate stage. But it is not necessary for us to decide the said question having regard to the peculiar facts involved in this case. If it was related to the certification of the export of the goods and merchandise in its actuality which is much dependent on such certification, then it may be held to be so mandatory as to confine the same within the time-limit before the assessment is complete or within the time-limit provided in section 139(1). Inasmuch as, the necessity of audit report is related to the ascertainment of the veracity of the claim against the actuality of the export having been made. It may be little different when the veracity of the claim is not much dependant on authentication, a situation which is not so difficult to ascertain or prove. When by legal fiction the receipt against sale of import licence is included in export turnover, then it is the receipt against the transfer of the import licence to be authenticated in the audit report. This seems to be more a formality in that sense. Having regard to such a situation, it may, therefore, not be interpreted so strictly. Therefore, in such a case filing of the audit report at the Tribunal stage would not....