1 itxal1000-11 agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL (L) NO.1000 OF 2011 AND INCOME TAX APPEAL (L) NO.1001 OF 2011 The Commissioner of Income Tax – 9 ..Appellant. Versus Penguin Electronics Limited ..Respondent. Mr.Vimal Gupta for the appellant. Mr.K. Gopal with Mr.Jitendra Singh for the respondent. CORAM : J.P. Devadhar & K.K. Tated, JJ. DATE : 16th September 2011 P.C. : 1. Whether the Income Tax Appellate Tribunal was justified in modifying the order passed by the Commissioner of Income Tax under Section 263 of the Income Tax Act, 1961 is the question raised in these appeals. 2. In the present case, the assessee had furnished audit report during the course of assessment proceedings, however, the same was not in the prescribed form. The assessing officer did neither treat the report as defective nor gave an opportunity to the assessee to file the audit report in the prescribed form. However, the assessing officer examined the claim of the assessee in detail and allowed the deduction after re-working the 2 itxal1000-11 allowable claim of the assessee. 3. The Commissioner of Income Tax was, however, of the opinion that in view of the fact that the audit report was not submitted in the prescribed form, it must be held that the audit report was not submitted by the assessee. 4. On appeal filed by the assessee, the Income Tax Appellate Tribunal held that when the assessee had in fact submitted the audit report along with the return of income, it was not proper on the part of the Commissioner of Income Tax to hold that the audit report was not submitted along with the return of income merely because the said report was not submitted in the prescribed form. Accordingly, the Income Tax Appellate Tribunal has modified the order of the Commissioner of Income Tax with a direction to the assessee to file fresh audit report in Form 10CCD and further directed the assessing officer to allow the claim of the assessee after re- working the deduction allowable under Section 80IA of the Income Tax Act, 1961. 5. In these circumstances, in our opinion, no fault can be found with the order of the Income Tax Appellate Tribunal. Accordingly, both the appeals are dismissed with no order as to costs. (K.K. Tated, J.) (J.P. Devadhar, J.)