TMI Blog2008 (8) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... na M. Bhatt for the appellant. Tushar P. Hemani with S. N. Soparkar for the respondent. JUDGMENT The judgment of the court was delivered by K. A. Puj J. - The Revenue has filed this tax appeal under section 260A of the Income-tax Act, 1961, proposing to formulate the following substantial question of law for determination and consideration of this court: "Whether the Appellate Tribunal is right in law and on facts in restoring the matter to the Assessing Officer to decide the issue of grant of deduction under section 80HHC when the said claim was neither made nor certificate of the auditor was filed under section 10CCAB of the Act along with the return of income?" 2. This court has admitted this tax appeal on August 30, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served in its order that the assessee did not put up this claim in the original return but pressed this claim only during the assessment proceedings subsequent on the export reserve was created in the annual accounts, subsequently in the form of a letter dated December 26, 1989, that it should be treated as revised return. He has, therefore, confirmed the order of the Assessing Officer by observing that the Assessing Officer has rightly pointed out that the claim will not be admissible unless the assessee files the report of an accountant along with the return of income as provided under section 288 sub-sections (1) and (2) along with the Explanation thereto. 5. Being aggrieved by the said order of the Commissioner of Income-tax (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt subsequently and on that basis he claims the deduction under section 80HHC of the Act the same cannot be allowed. She has, therefore, submitted that the Assessing Officer and the Commissioner of Income-tax (Appeals) have taken correct view and the Tribunal should not have remanded the matter back to the Assessing Officer to consider the claim of the assessee on the merits. 8. As against this, learned advocate Mr. Tushar P. Hemani appearing with Mr. S. N. Soparkar learned senior counsel for the assessee has submitted that the issue is squarely covered by the decision of this court in the case of CIT v. Gujarat Oil and Allied Industries reported in [1993] 201 ITR 325. He has submitted that the said decision has been followed by thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied subsequent to the completion of the assessment cannot be taken into consideration. The court, therefore, was of the view that the question that arises is when can an assessment be said to be complete or till what point of time the assessment proceedings can be said to be alive. Therefore, the court took the view that jurisdiction to entertain the new ground which the assessee claimed the benefit under section 11(2) of the Act and adjudicate the tax liability of the assessee. 11. Based on the aforesaid decisions of this court as well as the decisions of the apex court, Mr. Hemani has urged that the Tribunal has rightly decided the appeal against the Revenue and in favour of the assessee and directed the Assessing Officer to cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Consequently, while considering it, care has to be taken to see that the relevant purpose underlying section 80J is augmented and fortified and not frustrated by the construction put upon the said provision. The court, therefore, took the view, that even assuming that another view is possible on the construction of the second part of sub-section (6A) of section 80J, as that view is likely to frustrate the very object and purpose of the scheme underlying section 80J(1) and would result in absurdity, the other view by which the beneficial provision of section 80J(1) is made fully operative should be preferred. 13. This very principle was reiterated by this court in the case of Zenith Processing Mills v. CIT [1996] 219 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the return of income, certifying that the deduction has been correctly claimed in accordance with the provisions of this section, it does not mean that if such report is not attached along with the return of Income and it is produced before the Assessing Officer during the course of assessment proceedings, the assessee is not entitled to the deduction under section 80HHC of the Act. To obtain the report of the chartered accountant is a condition precedent and it is mandatory in nature. However, non-furnishing of such report at the time of filing the return of income but at subsequent stage and in any case, before the assessment proceeding is completed, the assessee's claim for deduction under section 80HHC of the Act cannot be disallowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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