COMMISSIONER OF INCOME TAX Vs. G KRISHNAN NAIR

JUDGEMENT

(1.) The Revenue is the appellant. It feels aggrieved by the decision of the Income Tax Appellate Tribunal affirming the decision of the first appellate authority that the requirement to file the certificate as provided under sub-s. (4A) of S.80HHC along with the return is only directory. The questions of law framed for the decision of this Court are the following: -

(2.) The respondent assessee is a cashew exporter. He filed the return of income for the assessment year 1992-93 on 24.10.1992 declaring an income of Rs. 60,53,360/-. He claimed deduction under S.80HHC. The assessing authority disallowed a portion of the deduction claimed on the ground that the certificate as contemplated under sub-s. (4A) of S.80HHC did not accompany the return. The copy of the order of the Assessing Officer is Annexure A. But the said order was reversed by the Commissioner of Income Tax (Appeals) by Annexure B order dated 26.7.1995. The first appellate authority took the view that the certificate contemplated under sub-s. (4A) of S.80HHC can be furnished before the final assessment order is passed. Feeling aggrieved, the Revenue moved the Income Tax Appellate Tribunal by filing an appeal. But the same was dismissed by Annexure C order dated 10.9.1999. Hence this appeal to this Court under S.260A of the Income Tax Act.

(3.) We heard both sides. The learned Senior Counsel Shri. P.K.R. Menon appearing for the Revenue relied on the decision reported in Commissioner of Income Tax v. Dhanalakshmy Weaving Works (245 ITR 13). The learned counsel appearing for the respondents Shri. P. Balachandran relied on the decisions of this Court in Commissioner of Income Tax, Kerala v. Malayalam Plantations Ltd. (103 ITR 835), Commissioner of Income Tax v. Shivanand Electronics (209 ITR 63), Peerless General Finance and Investment Co. Ltd. v. Deputy Commissioner of Income Tax (236 ITR 671) and Commissioner of Income Tax v. Hemsons Industries (251 ITR 693). Before going into the rival contentions, it will be beneficial to refer to the relevant statutory provisions, first. The relevant portion of S.80HHC reads as follows: -