Commissioner Of Income Tax, Dehradun And Another v. Shri Sanjay Kumar Bansal

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Income Tax Appeal No. 21 of 2008 Commissioner of Income Tax, Dehradun and another ………….. Appellants Versus Shri Sanjay Kumar Bansal .…………. Respondent Present: Mr. H.M. Bhatia, Advocate for the appellants. None for the respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J.Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (Oral) Sub-section (7) of Section 80-1A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) is as follows:- “The deduction under sub-section (1) from profits and gains derived from an undertaking shall not be admissible unless the accounts of the undertaking for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, and the assessee furnishes alongwith his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant. 2. The assessee, in the instant case, got his accounts audited by an accountant as defined in the explanation below sub-section (2) of section 288, but did not furnish the same alongwith his return of income. The Assessing Officer held that sub-section (7) of section 80-1A uses expression “shall not be admissible” and felt that unless the report of such audit is furnished alongwith the return of income, deductions under sub-section (1) of section 80-1A are not permissible. A look at sub-section (7) of section 80-1A of the Act would make it absolutely clear that in order to take benefit of the deductions under sub-section (1) of section 80-1A, the assessee is required to have its accounts audited by an accountant, as defined in the explanation below sub-section (2) of section 288 of the Act. In addition to that, sub-section (7) of section 80-1A of the Act directs that the assessee should furnish alongwith his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant. Therefore, not only the accounts have to be audited by an accountant, as defined in the explanation below sub-section (2) of section 288 of the Act, but the assessee is also required to furnish alongwith his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant. In Gujarat Oil & Allied Industries versus I.T.O, reported in 2 ITD 454, it was decided that the word “alongwith” means that the audit report should also be furnished, so that the same is available to the Assessing Officer at the time of assessment. In other words, it held that emphasis was given to have the accounts audited by an accountant as defined in explanation below sub-section (2) of section 288 of the Act and non-furnishing alongwith the return, the report of such audit in the prescribed form duly signed and verified by such accountant was not such an ingredient of sub-section (7) of section 80-1A of the Act that the Assessing Officer will be entitled to refuse to look into the audited account though the same has been duly audited by an accountant, as defined in the explanation below sub-section (2) of section 288 of the Act. Placing reliance upon the decision rendered in Gujarat Oil & Allied Industries versus ITO (supra), the Commissioner of Appeals set aside the decision of the Assessing Officer that in view of non-furnishing with the return of income, the report of audit in the prescribed form duly signed and verified by the accountant, deduction under sub-section (1) of section 80-1A shall not be admissible. From the judgment of the Tribunal, it does not appear that the Tribunal had considered this aspect of the matter and hence the present appeal. 3. As was felt by the Court in the case of Gujarat Oil & Allied Industries versus ITO (supra), we also feel that the emphasis in sub-section (7) of section 80-1A of the Act is to have the claim audited by an accountant, as defined in the explanation below sub-section (2) of section 288 of the Act and not furnishing the report of such audit in the prescribed form duly signed and verified by the accountant alongwith the return of income. We, accordingly, refuse to interfere in the appeal. 4. The appeal fails and the same is dismissed. (Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 31.05.2013 31.05.2013 P. Singh