TMI Blog1993 (5) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ceding two years, namely, assessment years 1982-83 and 1983-84 also this benefit had been denied for similar reasons and the Tribunal had upheld the decision of lower authorities relying on the decision of the Hon'ble Punjab Haryana High Court in the case of CIT v. Jaideep Industries [1989] 180 ITR 81. He, however, submitted that in the case of CIT v. Gujarat Oil Allied Industries [1993] 109 CTR 272 (Guj.) it had been held with reference to provisions of section 80J(6A) that the first part of the provisions was mandatory but the second part which required the filing of Audit Report alongwith the return was only procedural and hence even if the audit report was filed during the course of assessment proceedings, the benefit of section 80J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court in the cases of CIT v. Vegetable Products Ltd. [1973] 88 ITR 192 and CIT v. J. K. Hosiery Factory [1986] 159 ITR 85 in which the Apex Court had held that if two interpretations of a provision of Taxing Statute were possible, the interpretation which is favourable to the assessee should be preferred. 2. The learned Departmental Representative on the other hand referred to the specific provisions of sub-section (4) of section 80HHA which made it mandatory to file the Audit Report alongwith the return. He submitted that the conduct of the assessee was not bonafide because in the past also it had not been filing the audit report with the returns. He repeated that no reasonable cause had been given by the assessee for not compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted his arguments with case law relating to those sections. Section 12A(b) reads as under :--- " Where the total income of the trust or institution as computed under this Act without giving effect to the provisions of section 11 and section 12 exceeds twenty-five thousand rupees in any previous year, the accounts of the trust or institution for that year have been audited by an accountant as defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income furnishes along with the return of income for the relevant assessment year the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed. " The first proviso t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssible unless " in sub-section (4) of section 80HHA that this sub-section clearly shows the intention of the Legislature to the effect that the assessee is prohibited from getting the benefit of the deductions under section 80HHA unless the accounts of the small-scale undertaking for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant as defined in the Explanation below sub-section (2) of section 288 and the assessee furnishes, along with his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant. We feel that if the Legislature had intended to be only casual about filing of the audit report along with the return then, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal may also be interpreted as continuation of assessment proceedings. In our opinion, this interpretation cannot be accepted. At this stage we may also refer to the decision of the Hon'ble Punjab Haryana High Court in the case of Jaideep Industries where their Lordships have disapproved of the decision of the Tribunal and have laid down that the audit report must be filed with the return and that the Tribunal was not correct in holding that it could be filed at any time during the assessment proceedings before completion of assessment. We may also point out that in this very assessment year the Assessing Officer has refused to grant benefit under section 80J (alongwith 80HHA), the language of which is also similar so far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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