TMI Blog2012 (1) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is delayed by 25 days and revenue has filed an affidavit for condonation of delay by giving the following reasons: Date Reasons 18.10.2010 to 07.11.2010 Application for filing Second Appeal was not communicated 08.11.2010 Application for filing Second Appeal communicated 09.11.2010 to 11.11.2010 The papers were being processed for filing 12.11.2010 The papers are being filed for Second Appeal When this was pointed out, the Ld. Counsel for assessee fairly conceded the position. In view of the above fact that the Ld. Counsel con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has not filed audit report in Form No. 10CCB, hence it is not eligible for deduction u/s. 80IB of the Act and due to that income has escaped assessment. Accordingly, proceedings u/s. 147 rws 148 of the Act was initiated. The CIT(A) has confirmed the assumption of jurisdiction and assessee has not challenged the same. That means assumption of jurisdiction u/s 147 rws 148 of the Act by AO has become final. 5. Coming to the merits of the case that Form No. 10CCB i.e. audit report for claiming deduction u/s. 80IB of the Act was filed during the coursing of reassessment proceedings and assessee s claim was that non-submission of Form No. 10CCB is only a technical default and since original 10CCB filed along with return of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding u/s. 143(3). 6. Aggrieved, assessee preferred appeal before CIT(A), who allowed the claim of assessee by relying on Tribunal s decision vide para 3 and 4 of his appellate order as under: 3. While deciding above cited appeal I have held as under: I have discussed this issue in detail for my order for assessment year 2004-05 dated 28.9.2009 while deciding the issue of allowability of claim u/s. 801B. I have held as under: I have also gone through the decision cited by appellant particularly 201 ITR 325(Guj), 209 ITR 63 (Bombay) and 292 ITR 147 (Indore) which also clarify that filing of Audit report is not mandatory but directory in nature. Recently Hon ble Kolkata Tribunal A Bench while deciding ITA No. 338/339/Kol/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of decision discussed above of various High Courts and decision of Kolkata Tribunal, including similar decision in ITA No. 2184 dated 19.06.2009, which is directly on section 80IB. Respectfully following the decision of Hon ble jurisdictional Tribunal, according to which the submission of audit report is directory in nature and it cannot be held to be mandatory. The assessee has submitted audit report before A.O. during the assessment proceedings the same is considered as sufficient compliance under section 80IB and the claim of appellant under section 80IB is directed to be allowed. Following the decision as cited above the claim of appellant u/s. 80IB is directed to be allowed. 7. We find that CIT(A) observed that submission o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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