(1.) THE Tribunal, Indore Bench, Indore, has referred a question of law, under Section 256 (1), which reads as under: Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that the claim of the assessee under Section 80-1 is justified even if he had not filed the audit report in Form No. 10ccb along with return of income

(2.) BRIEFLY stated, the assessee had claimed deduction under Section 80- I amounting to Rs. 4,03,528. This claim of the assessee was turned down by the AO on the ground that report in Form No. 10ccb was not submitted along with the return. On appeal, the CIT (A) directed the AO to allow deductions under Section 80- I following his predecessors order. The matter was carried to the Tribunal. It was submitted before the Tribunal that no audit report in Form No. 10ccb was filed along with the return. The assessee vide its reply on 28th Feb. , 1992, stated that audit report dt. 20th Oct. , 1989, signed and verified by Shri T. C. Jain, chartered accountant, had already been submitted along with the return. In view of the fact that audit report in Form No. 10ccb dt. 20th Oct. , 1989 was made available before completion of the assessment and following the decision of the Honble Gujarat High Court in CIT v. Gujarat Oil and Allied Industries 1993 201 ITR 325 (Guj), the deduction was allowed by the Tribunal. It is in this context that the question has been referred to us for our opinion.

(3.) SUB-SECTION (7) of Section 80- I provides as under: (7) Where the assessee is a person other than a company or a co-operative society, the deduction under Sub-section (1) from profits and gains derived from an industrial undertaking shall not be admissible unless the accounts of the industrial 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, along with his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant.

(4.) THE grievance of the learned senior counsel for the Revenue is that since along with the return, report was not submitted in the prescribed Form No. 10ccb, the assessee was not eligible to the benefit of Section 80i.

(5.) THE Tribunal in meeting this question, brushed aside the objection and following the judgment of the Gujarat High Court in CIT v. Gujarat Oil and Allied Industries (supra) maintained the order passed by CIT (A). Learned Counsel for the Revenue has invited our attention to the judgment in CIT v. Shivanand Electronics [1994 ]209 ITR63 (Bom) and to the passage which reads as under: When the legislature casts a duty on the assessee claiming a certain benefit, to comply with the requirements which are associated with such benefit, the assessee cannot get the benefit without doing his part of the duty. He cannot be allowed to say that it was for theO to ask him to do so. If the assessee does not do his part of the statutory duty, theO may proceed to decide the allowability or otherwise of the relief on the basis of the facts and material available before him. The position may, however, be different where an assessee does a particular act not within the specified time but after the expiry thereof and makes an application for condonation of delay. In such cases, depending on the language of the statute and the object sought to be achieved by prescribing the time-limit, it would be the duty of the officer to consider the documents, even submitted belatedly, if there is reasonable explanation for the delay.

(6.) FORM No. 10ccb provides for submission of audit report under Sections 80i (7), 80ia (7), 80ib and 80ic. The question that falls for our consideration is as to whether the requirement of submission of Form No. 10ccb is mandatory or directory. As observed by the Bombay High Court, the requirement of filing the report is mandatory and failure to file it is fatal. But that is not so insofar as the requirement of filing it along with the return is concerned. If, in a given case, the assessee fails to file such report along with the return and files it subsequently, but before completion of the assessment, it will not be fatal to the claim of the assessee and theO will have the power to accept the same if he is satisfied that the delay in filing the same was for good and sufficient reasons. It is not disputed that return was filed in time. The question that has been raised is as to what would be the effect if Form No. 10ccb is filed later on during pendency of the assessment. It is not disputed that the report in the prescribed Form No. 10ccb was filed by the assessee before completion of the assessment. It is, therefore, clear that the assessee complied with all the provisions of law except that in submission of Form No. 10ccb, there was delay.

(7.) WE are of the view that even if an assessee fails to file information in Form No. 10ccb along with the return, he cannot be divested of the benefit of Section 80- I. It is not a case where the form was filed after the assessment, but before it and, therefore, when the authorities assessed the income, the form was before the AO. Under these circumstances, we find that the approach of the CIT (A) and the Tribunal was proper.

(8.) EVEN in the judgment of CIT v. Shivanand Electronics (supra), their Lordships of the Bombay High Court have observed that the position may be different when an assessee does a particular act not within the specified time but after the expiry thereof and makes an application for condonation of delay. In such cases, depending on the language of the statute and the objects sought to be achieved by prescribing the time-limit, it would be the duty of the officer to consider the documents, even submitted belatedly. Thus, this decision also supports the view that even if the prescribed form is submitted belatedly, the AO has to proceed on the basis of the claim made.

(9.) WE, therefore, hold that in the facts and circumstances of the case, the Tribunal was justified in law in holding that the claim of the assessee under Section 80-1 is justified even if he had not filed the audit report in Form No. 10ccb along with the return. We, therefore, answer the question against the Revenue and in favour of the assessee.