TMI Blog1993 (9) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... 2A and that, in view of its objects, income of the year is exempt under section 11. The Assessing Officer declined the relief on the reason that the audit report in Form No. 10B had not been filed along with the return. 3. It was an admitted fact that audit report had not been filed with the return. The plea of the assessee was that it had been subsequently given to the Assessing Officer at the hearing of the assessment proceeding. The Commissioner of Income-tax (Appeals), in appeal, upheld the order of the Income-tax Officer denying exemption. The assessee had come up before the Tribunal in second appeal - being ITA No. 996/Bang/87 - and the operative portion of the Tribunal's order was : "... We will set aside the assessment. We will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome-tax Officer the audit report in Form No. 10B which is dated 6-4-1983. The letter, further, reads : "You will recollect that this was handed over at the time of hearing by our Auditor. However, since you have mentioned that the same was not available in your files we have now arranged for a copy to be handed over." The second assessment, which is dated 3-4-1992, does not refer to the report filed on 30-3-1992. Shri Javali argued that the auditor might have made a mistake in not filing the report at the original assessment stage and that the report subsequently filed should have been taken into consideration without making a fuss of technical formality as the whole assessment was once again before the Income-tax Officer for re-conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment as it was "time barring" and as sufficient opportunity had been given to the assessee. 11. It is not correct to say that the jurisdiction of the Income-tax Officer was limited to seeing whether the audit report had been filed by the assessee before the original assessment was completed. The whole assessment had been set aside and the Income-tax Officer was directed "to make a fresh assessment". When the whole assessment is set aside and the entire matter was once again before the Assessing Officer, the scope would be the same as that of the original assessment proceeding and if an authority is required we may refer to the decision of the Allahabad High Court in the case of Abhai Ram Gopi Nath v. CIT [1971] 79 ITR 339 wherein T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT [1952] 22 ITR 502. Whether the remand order is one passed by the Tribunal or the first appellate authority, it would not, in principle, make any difference. If the Tribunal had given a direction which the Income-tax Officer is, no doubt, bound to comply with. But that is not to say that the Income-tax Officer ought not to do anything which he is otherwise competent to do in law unless the order of remand itself specifically restricted the scope of re-doing. 12. The audit report is only to see the entitlement of the assessee. Filing of the report along with the return is only a procedural formality. So long as the assessee is in a position to comply with the formality at any time before the assessment, there is no reason why the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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