TMI Blog2021 (1) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... . A bench of this court in 'CIT V. ACE MULTIAXES SYSTEMS (P.) LTD.' [ 2009 (1) TMI 260 - KARNATAKA HIGH COURT] has taken a view that assessee is entitled to deduction under Section 80IA of the Act even if the audit report is filed at the appellate stage. Similar view has been taken by Madras High Court in A.N. Arunachalam [ 1994 (1) TMI 65 - MADRAS HIGH COURT] . Thus, the view taken by the assessing officer with regard to eligibility of the assessee to claim deduction under section 80IA of the Act was one of the possible views. We are fortified in our aforesaid conclusion in view of the order passed by the Commissioner of Income Tax under section 263. Thus the order passed by the Commissioner of Income Tax itself discloses th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of ACIT Vs. Hindustan Mint and Agro Products (P) Ltd. (2009) 199 ITD 107 (Delhi)? (iv) Whether the Tribunal was justified in holding that at the time of filing audit report in form 10CCB along with the return was mandatory in nature on the facts and circumstances of the case? . 2. Facts leading to filing of this appeal briefly stated are that the assessee is a private limited company and is engaged in the business of manufacture and sale of surgical products. The assessee filed its return of income for the Assessment Year 2003-04 and declared a total income of ₹ 84,06,640/-. The return was processed under Section 143(1) of the Act. Thereafter, the case of the assessee was selected for scrutiny. The assessment was compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. It is further submitted that Commissioner of Income Tax vide order dated 11.03.2008 inter alia held that the deduction under Section 80IA of the act is not allowable as the assessee had not filed the Form No.10CCB as required under Section 80IA(7) of the Act along with the return of income. It is pointed out that the assessee had filed the aforesaid form along with the written submissions before the Commissioner of Income Tax, which was duly acknowledged in the order dated 11.03.2008. It is also submitted that the deduction under Section 80IA of the Act should be allowed even in cases as such Section 80IA(7) does not cast any obligation on the assessee that return must be accompanied by the audit report. It is further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired under Section 80IA(7) of the Act along with the return of income which is mandatory and therefore, assessee is not entitled to deduction under Section 80IA of the Act. However, the Assessing Officer without examining the aforesaid aspect permitted the deduction and therefore, the order passed by the Assessing Officer is erroneous and is prejudicial to the interest of the revenue. It is also urged that Section 80IA (9) of the Act mandates deduction to the extent of such profits and gains which has been allowed under the heading 'deductions in respect of certain incomes'. The Assessing Officer had allowed the deduction under Section 80HHC of the Act without reducing the deduction allowed under Section 80IA of the Act, which is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the submissions made by learned counsel for the parties and have perused the record. Before proceeding further it is apposite to deal with the submission made by learned counsel for the assessee made with regard to deferment of hearing of the appeal. A bench of this court by an order dated 20.11.2018 in view of submission made by learned counsel for the revenue that question of law which would arise for consideration in this appeal has been referred to a larger bench of the Supreme Court, directed that the appeal be listed after disposal of the special leave petition. Thereafter the counsel for the assessee filed an application for modification of the order dated 20.11.2018 on the aforesaid application the following order was passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be prejudicial to the interest of the Revenue and must be erroneous have to be fulfilled before power under section 263 of the Act is invoked. It is equally well settled legal proposition that where the view taken by assessing officer is one of the possible views the powers under section 263 of the Act would not be invoked [See: 'MALABAR INDUSTRIAL CO. LTD. V. COMMISSIONER OF INCOME TAX', 243 ITR 83 (SC), CIT V. MAX INDIA LTD., 295 ITR 282 AND ULTRATECH CEMENT LTD. V. STATE OF RAJASTHAN, (2020) 117 TAXMANN.COM 807 (SC)]. 8. In the backdrop of aforesaid well settled legal position, we may advert to the facts of the case. The assessee had filed Form No.10CCB of the Act along with written submissions before the Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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