Decided on August 09,1999



Arun Kumar Goel, J. - (1.) THE Income-tax Appellate Tribunal, Amritsar Bench, Arnritsar, has stated the case under Section 256(1) of the Income-tax Act, 1961, for opinion of this court. THE question on which opinion is sought for, is as under : "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee was right in contending that the Commissioner of Income-tax (Appeals) should have treated the requirements to be met when certificates in Forms Nos. 10C and 10D had been filed before him instead of the same having been filed along with the return as required in Sub-section (5) of Section 80HH of the Act ?"
(2.) WITH a view to properly understand the whole gamut of this case, it is necessary to notice the legal provisions applicable to this case as well as the facts thereof. Under Section 80HH of the Income-tax Act, certain deductions in respect of profits and gains from newly established industrial undertakings or hotel business in backward areas are allowed. The extent of such deductions while computing the total income of the assessee, from such profits and gains is an amount equal to 25 per cent, thereof allowed to such assessee. WITH a view to avail of such deduction from the profits and gains, the assessee is required to file certificates in Form No. 10C of the Income-tax Act. For ready reference Sub-section (5) of Section 80HH is reproduced hereinbelow : "(5) Where the assessee is a person other than a company or a cooperative society, the deduction under Sub-section (1) shall not be admissible unless the accounts of the industrial undertaking or the business of the hotel for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant as defined in (he 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." The respondent-firm during the assessment year 1976-77 appears to have claimed benefit under sections 80J and 80HH, which were denied on two counts : (i) for the reasons detailed in the assessment year 1975-76, and (ii) as no certificate in Form No. 10C of the Income-tax Rules was not furnished. On this basis, the Assessing Officer, i.e., Income-tax Officer, "C" Ward, Jammu, vide his order dated March 21, 1979, framed the assessment for the relevant assessment year 1976-77 against the respondent-firm. Feeling dissatisfied with this order of the assessing authority, the respondent filed an appeal before the Commissioner of Income-tax (Appeals), Amritsar Range, Amritsar. This came to be registered as Appeal No. 1/CW-JMU/79-80. Vide order dated January 31, 1981, this appeal was disposed of. The matter relating to a case stated by the Tribunal for the opinion of this court under Section 256(1) of the Act is dealt with in paragraph 4 of the Commissioner of Income-tax (Appeals)' order. While partly allowing the appeal, the contention raised with reference to sections 80J and 80HH on behalf of the respondent-firm was rejected and the assessment framed by the Income-tax Officer was upheld on this aspect of the case. This order was passed by the Commissioner of Income-tax (Appeals) in exercise of powers vested in it under Section 250 of the Income-tax Act.
(3.) FEELING aggrieved and dissatisfied with the order of the Commissioner of Income-tax (Appeals), the respondent preferred an appeal under Section 253 of the said Act before the Income-tax Appellate Tribunal, Amritsar, which has reversed the decision of the Commissioner of Income-tax (Appeals) and has ordered the restoration of the issue to his file for further disposal after dealing with the Income-tax Officer's second objection. The circumstances of the case reveal that the necessary certificate from the chartered accountant in Form No. 10C was not furnished by the asses-see during the course of assessment proceedings. Here it may also be observed that during the course of appeal before the Commissioner of Income-tax (Appeals), Shri A. K. Anand, Chartered Accountant, had filed his affidavit. His stand in paragraph 2 was that Forms Nos. 10C and 10D under the Income-tax Act were also filed during the assessment proceedings before the Income-tax Officer, a carbon copy whereof was attached with the said affidavit. Thus, it is obvious that during the course of proceedings in appeal before the Commissioner of Income-tax (Appeals), copies of such certificates were available on the file even if it be accepted that those had not been filed during the course of assessment proceedings before the Income-tax Officer.;

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