IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27.04.2009 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Tax Case (Appeal) No.555 of 2004 Commissioner of Income Tax, Coimbatore. Appellant v. M/s Gita Bhuradia 123/1, Bharathi Park Road No.2, Coimbatore. Respondent Tax Case (Appeal) preferred under section 260A of the Income Tax Act, 1961, against the order of the Income Tax Appellate Tribunal, Madras 'B' Bench, dated 01.12.2003 in ITA No.1053/Mds/1997 for the assessment year 1994-95 and against the order of the commissioner of Income Tax (Appeals) Coimbatore, dated 18.2.1997 passed in I.T.A.No.719/A/96-97 for the assessment year 1994-95, and against the order of the Assistant Commissioner of Income Tax Company Circle-II (2), Coimbatore, dated 19.9.1996 passed in PAN PX-7647/Co.II(2)/CBE for the assessment year 1994-95. For appellant : Mr.T.Ravi Kumar JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) By framing the following question of law "Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding, even though the prescribed certificate in Form No.10CCAC is not filed along with the return of income, was a pre- request for grant of relief under Section 80HHC(4) of the Income Tax Act, 1961?" the revenue has come on appeal against the order of the Income Tax Appellate Tribunal, Madras 'B' Bench, dated 01.12.2003 in ITA No.1053/Mds/1997 in respect of assessment years 1994.95. 2. The material facts as culled out from the statement of facts in the memorandum of grounds of appeal are as follows:- The Assessing Officer in the intimation under Section 143(1) (a) https://hcservices.ecourts.gov.in/hcservices/ disallowed the assessee's claim under Section 80HHC amounting to Rs.4,56,050/- observing that no evidence was filed in respect of the same. The Assessing authority not granted the relief been filed by the assessee along with the return. The assessee filed an appeal to the Commissioner of Income Tax (Appeals), who directed the assessing officer to rectify the intimation by taking into consideration the certificate subsequently filed by the assessee. Aggrieved by that order, the revenue filed an appeal before the Income Tax Appellate Tribunal and the Tribunal by its order has upheld the decision of the Commissioner of Income Tax (Appeals). The correctness of the same is now canvassed before this Court by the revenue by formulating the above stated question of law. 3. We have heard the argument of the learned Counsel appearing for the department. 4. The learned counsel for the revenue fairly submitted that the issue has already been covered by the decision of this Court in the case of Commissioner of Income Tax vs. Valli Cotton Traders P. Ltd. reported in (2007) 288 ITR 400 wherein it has been held against the revenue by holding that filing of the audit report along with the return is not a mandatory condition for the purpose of claiming deduction under Section 80HHD of the Act, the spirit behind sub-sections (5) and (9) of Section 139 read with Section 80 HHC of the Act was that the assessee should be given a fair and reasonable opportunity to claim the benefit as available under the statute and any denial on technical grounds would not be justified. The remittance of the matter to the Assessing Officer for consideration afresh of the claim of the assessee to the benefit of section 80HHC by filing the audit report in Form No.10CCAC was justified. 5. Following the above said Judgement, the appeal is dismissed answering the question of law against the revenue. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rg To 1. The Assistant Registrar Income-tax Appellate Tribunal Rajaji Bhavan, Besant Nagar, Chennai 18 https://hcservices.ecourts.gov.in/hcservices/ 2. The Commissioner of Income Tax, Coimbatore. 3. Income Tax Appellate Tribunal, Madras 'B' Bench, 4. The Assistant Commissioner of Income Tax Company Circle-II (2), Coimbatore. + 1 CC To Mr.J.Naresh Kumar,Advocate SR NO.18532 T.C. (A) No.555 of 2004 KSK {CO} TP/5.6.2009. https://hcservices.ecourts.gov.in/hcservices/