TMI Blog1993 (11) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... and non est in law. 3. It is contended that the order under section 143(1)(a) dated2-3-1990is itself an order under section 143(3) and, therefore, the subsequent proceedings, without the authority of law are invalid. 4. It is contended that the deduction under section 32AB of Rs. 10,65,178 is wrong. 5. The disallowance of Rs. 8,102 under section 43B is wrong. 6. The disallowance of Rs. 10,000 out of telephone and telex expenses is wrong. 7. The assessment under section 143(3) dated27-3-1992is wrong, invalid and time barred. 8. The provisions under section 234B and 234C are not applicable at all. 9. The appellant grants leave to add, alter, amend or forgo any of the above grounds at the time of hearing." 2. We will take up gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of CIT v. Jaideep Industries [1989] 180 ITR 81 wherein deduction under section 80J(1) was denied to the assessee for having not furnished the prescribed report along with the return. The assessee is in appeal before us. 3. Shri Ganeshan, the learned AR for the assessee submitted that the only reason for denying the assessee's claim for deduction under section 32AB is that the prescribed report was not furnished along with the return. According to the learned counsel, it is not denied that the assessee had deposited the amount involved with the Development Bank. According to Shri Ganeshan, the assessee also made available the prescribed report to the Assessing Officer during the course of assessment proceedings. Thus, accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court of Delhi in the case of S.R.F. Charitable Trust v. Union of India [1992] 193 ITR 95. He also submitted that the provisions of section 32AB read as a whole do not make the filing of the Accountant's Report with the return mandatory. In support of his submissions, he invited our attention to Hon'ble Supreme Court's judgment in the case of CIT v. J.H. Gotla [1985] 156 ITR 323 wherein it has been held that: "though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction." He further referred to another judgment of the Hon'ble Supreme Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attention to Pune Bench of the Tribunal judgment in the case of Nemco Enterprises v. Assistant Commissioner of Income-tax [1993] 46 TTJ 110 wherein the judgment of Punjab Haryana High Court in the case of Jaideep Industries has also been considered where on a set of same facts and under similar circumstances, the Tribunal held the furnishing of prescribed report even if it was delayed for a reasonable cause could be considered on merit and still the claim of deduction under section 32AB should be decided on appreciation of the reasonable cause shown for the delay or omission to enclose along with the return. He also referred to Madras Bench of the ITAT order in the case of Amber Electrical Conductors (P.) Ltd. v. Dy. CIT [1992] 43 ITD 313 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia v. Union of India AIR 1971 SC 530, 577, "The more simpler and more common the word or expression, the more meaning and shades of meaning it has". The intent and purpose of section 32AB is primarily to allow deduction of amount deposited with the Development Bank subject to the prescribed conditions being fulfilled. The essence of the provisions of section 32AB is deposit of amount by the assessee within the prescribed time with the Development Bank and obtaining and furnishing of a report from an Accountant in support of the claim made. The provisions of sub-section (5) are to be read in the context of main provision of section 32AB; they are not to be read and interpreted in isola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to follow their judgment in the case of Jaideep Industries. We, therefore, accept the ground of appeal taken by the assessee and allow the claim for deduction under section 32AB subject to verification of the prescribed conditions otherwise having been fulfilled. 8. Ground No. 5 is against disallowance of Rs. 8,102 under section 43B. The claim of the assessee was undoubtedly found tenable by the learned CIT(A) who, however, did not allow deduction only for the reason that the evidence was not furnished along with the return. We are unable to approve of the reasoning of the learned CIT(A) in the light of our findings above that furnishing of evidence along with the return of income is only directory and not mandatory. The ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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