Delhi H.C : Whether, on the facts and in the circumstances of the case, the learned Tribunal is correct in law in holding that it is a sufficient compliance of the provisions of sub-s. (4) of s. 80HHC, if the report of the auditor is filed during the course of the assessment proceedings ?

Counsel Appeared

Sanjeev Khanna with Ajay Jha, for the Revenue : Salil Agarwal, for the Assessee

JUDGMENT

R.C. LAHOTI, J. :

Admit. Heard finally. Learned counsel for the Revenue relies on a Division Bench decision on the Punjab & Haryana High Court in the case of CIT vs. Jaideep Industrise (1989) 180 ITR 81 (P&H): TC 25R.1186, according to which the provisions contained in sub-s. (4) of s. 80HHC would be mandatory; while learned counsel for the assessee relies on a Division Bench decision of the Bombay High Court in the case of CIT vs. Shivanand Electronics (1994) 119 CTR (Bom) 94 :(1994) 209 ITR 63 (Bom): TC 25R.1199, according to which such a provision would be directory. There is no decision rendered either by the Supreme Court or by the Delhi High Court touching the issue. We are, therefore, of the opinion that the questions of law do arise from the order of the Tribunal calling for a reference of statement of the case to the High Court.

The petition is allowed. The Tribunal is directed to draw up a statement of the case and refer the following two questions for the opinion of the Court :

“1. Whether, on the facts and in the circumstances of the case, the learned Tribunal is correct in law in holding that it is a sufficient compliance of the provisions of sub-s. (4) of s. 80HHC, if the report of the auditor is filed during the course of the assessment proceedings ?

2. Whether, on the facts and in the circumstances of the case, the learned Tribunal is correct in law in holding that filing of the audit report in the prescribed form in sub-s. (4) of s. 80HHC is only directory in nature ?”

No order as to the costs.

[Citation : 232 ITR 614]