Commissioner of Income Tax vs B.R. Sharma

Admit. Heard finally.

Learned counsel for the Revenue relies on a Division Bench decision on the Punjab & Haryana High Court in the case of Commissioner of Income Tax Vs. Jaideep Industries, , according to which the provisions contained in sub-s. (4) of s. 80HHC would be mandatory; while learned counsel for the assessed relies on a Division Bench decision of the Bombay High Court in the case of Commissioner of Income Tax Vs. Shivanand Electronics, , 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 ?

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 ?"