TMI Blog1995 (3) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... draw the claim of CCS, etc., from the statement of income finalised under s. 143(1)(a). The assessee filed its objections dt.25th Oct., 1991, wherein it was pointed out that whereas the assessment was passed on29th March, 1990. Finance Act, 1990, by which sub-ss. (iii)(a), (iii)(b) and (iii)(c) were inserted in s. 28 of the IT Act received the assent of the President on31st May, 1990. Therefore, at the time of assessment, i.e.,29th March, 1990, CCS, DDB, I/L, etc., were not included in the taxable income of the assessee. It was also stated in the said letter that since it was a loss return filed, there was no opportunity for the assessee to claim deduction under s. 80HHC. On hearing the objections, the AO did not take any corrective action. 3. Afterwards, the AO issued notice under s. 143(2) for making regular assessments on25th June, 1990. Then the assessee filed a revised computation on28th Oct., 1991, wherein deduction under s. 80HHC at Rs. 20,30,088 was claimed. Further, the assessee also filed an auditor's certificate in Form No. 10CCAC on25th Oct., 1990, which is the earliest point of time. According to the assessee, there was no occasion either to file a certificate under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t annexed to the return. It was submitted that a correction was needed in the originally filed return because of the amendment to s. 28 by the Finance Act, 1990, and not a revised return. Even if the assessee had not filed the said certificate and amended computation, it was the duty of the AO to recompute the taxable income in accordance with the amended law. In the decision of the Delhi High Court in Continental Construction Ltd. vs. Union of India Ors. (1990) 85 CTR (Del) 158 : (1990) 185 ITR 230 (Del), it was held that in view of the bona fide belief entertained by the petitioner, the Department ought not to stand on mere technicalities but ought to give the petitioner an opportunity to fulfil the requirements of s. 80HHC(3) and on such compliance within a reasonable time ought to grant the benefit of that section to the petitioner. Further, it was submitted that the Supreme Court interpreted the words 'shall be filed along with the return' and has held that such a provision is basically procedural and should be treated as directory and not mandatory in 21 STC 154. The said decision has been followed by the Patna High Court reported in CIT vs. Sita Ram Bhagwandas (1976) 102 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the auditors in the prescribed form. No doubt the assessee during the course of the assessment proceedings made a claim under s. 80HHC and also filed a revised computation of its income, but filing of the revised computation of income does not meet the clear cut requirements of sub-s. (4) of s. 80HHC. The argument that even if the assessee had not filed the auditor's certificate, it was the duty of the AO to allow such a deduction under s. 80HHC is without substance. In view of the plain language of s. 80A(1), deduction under any of the sections of Chapter VIA are to be allowed only if the assessee claims any of them and establishes the circumstances warranting such a deduction. If no such deduction is claimed, the assessing authority may not be bound to allow any such deduction. The decisions cited by the assessee including the Calcutta High Court (1992) 195 ITR 825 (Cal) are not direct authorities dealing with s. 80HHC. They are concerned with other provisions of the IT Act or the provisions of the U.P. Sale-tax Act. Thus, rejecting all the arguments advanced on behalf of the assessee, the learned CIT(A) had confirmed the order of the AO denying the relief under s. 80HHC t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rants grant of stay of the demand for the following reasons. It is no doubt true that the assessee filed only one return on28th Dec., 1989. The assessment was completed under s. 143(1)(a) on29th March, 1990under which loss of Rs. 56,53,234 was determined. At that time, the law as interpreted by the Courts and Tribunal was that amounts received towards CCS, DDB and I/L were all capital receipts and cannot be included as income of the assessee. New sub-sections were inserted in s. 28 only on31st May, 1990by which time, the return was already filed. Notice under s. 143(2) for making a regular assessment was issued on25th June, 1990. Though the return as such was not revised, but a revised computation was filed on28th Oct., 1991, claiming deduction of Rs. 20,30,088 under s. 80HHC. Certificate in Form No. 10CCAC was also filed on25th Sept., 1990, in fulfilment of requirements of s. 80HHC(4). The contention of the Revenue was that it is not a revised return but only a revised computation which was filed on28th Oct., 1991. The time for filing revised return under s. 139(5) was already over, inasmuch as one year time from the completion of the assessment year with which it relates to is lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O have power to review his order is the question for consideration. The order dt.24th March, 1993, which we have already extracted above, is without any conditions and according to the order the stay should remain till the disposal of the appeal by the Tribunal,New Delhi. In those circumstances, having regard to ss. 220(6) and 225 since the nature of the order passed was unconditional, in our opinion, the orders when once passed cannot be reviewed. Therefore, we hold that the subsequent order dt. 12/13th Dec., 1994 is without jurisdiction and beyond the powers of the AO. 11. In view of what we consider about the legal position we hold that the orders dt.24th March, 1993, should be deemed to be continuing. 12. Even otherwise, since this Tribunal itself is having inherent powers of stay in appropriate cases, we feel that after surveying the facts of the case and the contentions on either side, the balance of convenience lay very much on the side of the assessee. The balance of inconvenience in refusing stay to the assessee would be much more than the inconvenience to the Department by grant of stay. Therefore, we hold that there will be a grant of stay of collection of tax till t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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