COMMISSIONER OF INCOME TAX Vs. B L MURARKA

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THIS reference relates to the assessment year 1976-77. The assessee has claimed deduction under Section 80J of the Income-tax Act, 1961 (for short "the Act"). In the first instance, the return submitted by the assessee-respondent was not accompanied by the audit report as required by Subsection (6A) of Section 80J of the Act. However, before the assessment was made, the assessee-respondent submitted a revised return claiming greater benefit under Section 80J. The audit report was available with the respondent-assessee at the time when he filed the original return but it could not be filed along with the original return.

(3.) HOWEVER, on further appeal, the Income-tax Appellate Tribunal, Bench at Jaipur, accepted both these contentions raised on behalf of the respon-dent-assessee and held that the Income-tax Officer had no jurisdiction to invoke the provisions of Section 154 of the Act on the principle of merger of his order with the appellate order passed by the Appellate Assistant Commissioner. It was further held that on the issue regarding the requirement of filing the audit report being mandatory or directory, there exists a 'difference of opinion between various High Courts and, therefore, considering this issue to be debatable it cannot be treated as a mistake apparent from the record and, hence, is not amenable to rectification proceedings on that ground also. On these findings, the Tribunal allowed the appeal filed by the respondent-assessee and set aside the order of rectification.