TMI Blog2019 (5) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... Member For the Assessee : Shri Bhavin Marfatia, A.R For the Revenue : Smt. Smiti Samant, Sr.DR ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Commissioner of Income Tax (Appeals)-3, Vadodara [Ld.CIT(A) in short], dated 01/02/2015 arising in the matter of assessment order passed under s. 143 r.w.s 147 of the Income Tax Act, 1961 (here-inafter referred to as the Act ) dated 06/01/2015 relevant to Assessment Year (AY) 2009-10. 2. The assessee has raised the following grounds of appeal: All the grounds of appeal in this appeal are mutually exclusive and without prejudice to each other. 1. The learned Commissioner of Income Tax (Appeals) - 3, Vadodara [ the CIT(A) ] erred in fact and in law in confirming the action of the Deputy Commissioner of Income Tax (u the AO'') in reopening the assessment proceedings u/s 147 of the Income Tax Act, 1961 (''the Act ). 2. The learned CIT(A) erred in fact and in law in confirming the action of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 147 of the Act before the completion of the assessment. Therefore the assessee has duly complied the provisions of section 10A(5) of the Act 7. On the other hand, the learned DR submitted that the assessee in the original assessment proceedings had not furnished the report in form 56F. Therefore the assessee is not eligible for deduction under section 10A of the Act. The learned DR vehemently supported the order of authorities below. 8. We have heard the rival contentions and perused the materials available on record. The assessee in the instant case file revised return of income dated 26-10-2010 along with the report in form 56F dated 25-09-2010 claiming the deduction under section 10A of the Act for ₹ 25,15,494.00 only. As the assessee filed the report in form 56F in the revised return of income, accordingly the AO was of the view that there was no report filed by the assessee in form 56F along with the original return of income. Therefore the AO denied the deduction claimed by the assessee under section 10A of the Act in the absence of audit report in form 56F. The view taken by the AO was subsequently confirmed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the clerk or for any other reason, even though the audited report is available, it might not have been annexed to the return and on such mistake being found out, the report may be tendered on the next day or even a few days thereafter to the ITO. If any literal compliance with the words assessee furnishes report along with his return of income is insisted upon, then, in such an unforeseen contingency, the assessee would be denied benefit of section 80J. One other illustration can be considered to highlight the position. As per section 139(1) read with section 139(5) the assessee can file return within the period permitted thereunder and even during the extended period or can file a revised return as per this provision, of course, after following the procedure laid down therein. If the assessee is prompt, he may file the return in time, but at that stage, for reasons beyond his control, the audit report is not ready, he files the return in time but without its being accompanied by the auditor's report while another assessee who is not prompt enough may not file the return at the first opportunity. In such a contingency, a prompt assessee who files the return in time would s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said report was also filed in original assessment proceedings, as deposed in the affidavit. The Id. Authorities below appear to have not taken cognizance of the audit report in Form No. 56F, furnished by the assessee in the reassessment proceedings in support of its claim, stating that the assessee failed to furnish any evidence to substantiate that any such audit report was filed in the original assessment proceedings. It is also an undisputed fact that the claim made by assessee stood accepted in original assessment order. We have gone through various decisions relied on behalf of the parties and we find that this issue is squarely covered in favour of the assessee by the decision of coordinate Bench in the case of G.S. Pharmbutor Pvt. Ltd. vs. ACIT (ITA No. 4255 identical facts and circumstances decided the issue in favour of the assessee holding as under: 6. We have heard both the parties and perused the material on record, 7. It is not in dispute that in the original assessment made under sec. 143(3) of the Act dated 24.10.2005 for the Assessment Year 2003-04 and assessment order under sec. 143(3) dated 10.03.2007 for the Assessment Ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001) 248 ITR 199 (Mad.). (iv) CIT Vs Mahalaxmi Rice Factory (2007) 294 ITR 631 (P H). Referring to the aforesaid decisions, the Hon'ble Jurisdictional Delhi High Court in the case of CIT vs. Contimeters Electricals Pvt. Ltd. (2009) 317 ITR 249 (Delhi) has also taken a view that requirement of filing the audit report along with return is not mandatory but directory, and that if the audit report is filed at any time before framing of the assessment, the requirement of sec. 8o-IA(7) would be met. 8. In the present case, the audit report in Form No.lOCCB was filed by the assessee during the reassessment proceedings completed under sec. 147 of the Act, during the course of which, the AO disallowed the assessee's claim of deduction under sec. 8o-IB on the ground that the audit report was not filed along with the return of income. The expression assessment includes re-assessment as defined in sub-sec.(8) of sec. 2 of the Act. In the present case, the relevant assessment order is the assessment made under sec. 147 of the Act during the course of which proceedings, the assessee has furnished the audit report in prescribed form. We, therefore, hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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