- (1.) HEARD learned counsel for the parties.
(2.) HAD dismissed the appeal of the Revenue, and affirmed the order of CIT(A). Learned CIT(A) allowed the appeal of the assessee, and held that since the assessee has produced the certificate obtained from District Industries Centre, wherein a sum of Rs. 4,83,449 was certified to have been converted into loan, the disallowance made under s. 43B was set aside, and the AO was directed to allow the claim, after verification of the certificate. Then disallowance under s. 80 -IA audit report as required by s. 44AB, and during the course of assessment proceedings, claim for deduction was also are fulfilled, and also filed the report in Form No. 10CCD, as prescribed under sub -s. (7) of s. 80 -IA. This was disallowed by the AO, on the ground, the appellant was required to file the report in Form No. 10CCD "along with the return". It was contended before the CIT(A), that the assessee did not claim any deduction under s. 80 -IA in the return filed under s. 139(1). However, after filing of the return, it came to her notice, that the return did not take into account claim of the deduction under s. 80 -IA, in respect of unit M/s Avani Minerals Industries. Accordingly, the account was got audited, and a report, as required by sub -s. (7) of s. 80 -IA was obtained, and the claim for deduction was made, during the course of assessment proceedings. Learned CIT(A), relying upon the judgment, reported in Hemsons Industries vs. ITO (1987) 23 ITD 364 (Hyd), found the requirement of filing the report along with the return was directory, and held, that the claim of deduction is allowable.
(3.) THE Tribunal held, that the requirement of filing report along with return of income is directory, and not mandatory, and if the said report is made available to the AO during the course of assessment proceedings, the lawful deduction to the assessee should not be rejected. "1. Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that for claiming deduction under s. 80 -IA the CIT(A) was justified in holding (sic -upholding) claim of the assessee though claim was made after filing the account and audit report and claimed during the course of assessment ? 2. Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the assessee was entitled to deduction under s. 43B of the Act in respect of sales -tax amount deferred under the State Government's Deferment Scheme and without actual payment of tax under s. 43B of the Act - Appeal No. 20 of 2005, CIT vs. Kothari Impex [reported at (2008) 3 DTR (Raj) 295 - -Ed.], wherein considering the various judgments of different High Courts, and other provisions of the Act, it has been held, that the requirement cannot be said to be only directory. Of course, the learned counsel for the assessee tried to distinguish the judgment by contending that in that case the report was filed after completion of assessment, while in the case in hand it had been filed during the assessment proceedings. In our view, this does not make any difference.;