ORDER
Shri Chander Singh, Accountant Member
1. This appeal by the assessee for assessment year 1991-92 has been directed against the order of Commissioner under section 263 of the Act.
2. The assessee for the year under consideration had exported certain goods directly/through export or trading houses. During the year under consideration, the assessee was supporting manufacturer for the purpose of clause (b) of sub-section (4A) of section 80HHC of the Act. For the purpose of claiming deduction under section 80HHC, the assessee was required to file Form No. 10CCAB with respect to the following parties, viz. –
(1) M/s. Escorts Ltd.
(2) M/s. Tata Export Ltd.
(3) M/s. Dunlop India Ltd.
(4) M/s. Exim Link Ltd.
(5) M/s. Pohoomal Kewalram Sons (Exports) (P.) Ltd.
(6) M/s. J. K. Industries (P.) Ltd.
(7) M/s Peico Electronics and Electrical Ltd.
(8) M/s. United Phosphorous Ltd.
As per the provisions of section 80HHC, Form No. 10CCAB was required to be filed along with the return of income which was filed by the assessee on 31-12-1991. The assessee, however, filed Form No. 10CCAB only with respect of M/s. Peico Electronics and Electrical Ltd. and M/s. United Phosphorous Ltd. The Assessing Officer, however, allowed the full claim of the assessee under section 80HHC of the Act.
3. The Assessing Officer perhaps realised that the claim of the assessee under section 80HHC had wrongly been allowed. The A. O. with a view to rectify the apparent mistake, issued a notice under section 154 dated 12-8-1993. The assessee replied to the said notice vide its letter dated 22-10-1993. The A. O. however, as it appears from the facts of the case, did not proceed with the rectification application. In other words, the A. O. did not pass any order under section 154 thereby rectifying the mistake, if there was any.
4. Thereafter, the Commissioner examined the records of the assessee and found that the A. O. had allowed the claim of deduction under section 80HHC of the Act for the year under consideration on the proportionate profit of Rs. 31,93,826 in respect of export turnover to the extent of Rs. 6,29,92,386. Such a deduction was allowed by the A. O. without obtaining an audit report in Form No. 1CCAB along with the required certificates in respect of entire export turnover. The Commissioner was, therefore, of the view that the A. O. had allowed the deduction under section 80HHC without the requisite Form No. 10CCAB and hence the order of the A. O. was erroneous as well as prejudicial to the interest of revenue.
5. Commissioner also noticed from the scrutiny of the records that the A. O. had allowed the deduction of unpaid sales tax of Rs. 5,244 and unpaid bonus of Rs. 18,400. In this regard also, the Commissioner was of the view that the order of the A. O. was erroneous as well as prejudicial to the interest of revenue. The Commissioner accordingly issued a show-cause notice dated 6-1-1994. The Commissioner pointed out to the assessee that the deduction under section 80HHC has been wrongly allowed by the ITO and the deduction on account of unpaid sales-tax as well as unpaid bonus has also been wrongly allowed by the A. O. The Commissioner therefore, gave an opportunity of being heard to the assessee before assumption of jurisdiction under section 263 of the Act.
6. During the course of hearing and in response to the show-cause notice received by the assessee, it was pleaded before the Commissioner that the assessee had furnished Form No. 10CCAB during the course of assessment proceedings under section 143 (3) of the Act. It was also pleaded that it was not mandatory to file Form No. 10CCAB along with the return of income. According to the assessee, Form No. 10CCAB could be filed any time before the assessment proceedings were completed. The assessee, it was pleaded, had filed the requisite form before the assessment was made and therefore, the deduction under section 80HHHC was rightly allowed by the A. O. The assessee thus pleaded that there was no warrant for the Commissioner to assume revisional jurisdiction under section 263 (1) of the Act.
7. The Commissioner exhaustively examined the contentions, arguments and the legal decisions relied upon by the assessee. He found, as a matter of fact, that the assessee had filed the return of the income for the year under consideration on 31-12-1991. The assessee had claimed deduction under section 80HHC of Rs. 36,74,768 which was supported by Form No. 10CCA dated 30-12-1991 signed by the Chartered Accountants M/s. H. N. Mehta & Associates. The said report was accompanied by two dis-claimer certificates in Form No. 10CCAB from M/s. United Phosphorous Ltd. and M/s. Peico Electronics and Electrical Ltd. for a sum of Rs. 16,96,887 and Rs. 10,51,754 respectively. The Commissioner, however, found that the Chartered Accountant’s report was not accompanied by the certificates in Form No. 10CCAB in respect of the following six parties :
(a) M/s. J. K. Industries Ltd. Delhi.
(b) M/s. Pohoomal Kewalram Sons (Exports) Pvt. Ltd. Bombay.
(c) M/s. Escorts Ltd., New Delhi.
(d) M/s. Tata Exports Ltd. Worli, Bombay.
(e) M/s. Dunlop India Ltd., Calcutta.
(f) M/s. Exim Link Ltd. Bombay.
8. The Commissioner also found from the scrutiny of the records that the assessment proceedings were started by the A. O. by issue of notice u/s 143 (2) on 3-1-1992. Such assessment proceedings ended on 13-1-1992 i.e., the date of assessment order. During these 110 days, the Commissioner found that the assessee had merely filed certain details of direct exports and indirect exports of Rs. 67,37,169 and Rs. 6,57,41,006. The assessee, however, did not file certificates in respect of indirect exports of Rs. 6,29,92,383. Since the assessee has not filed disclaimer certificate under Form 10CCAB the Commissioner was of the view that the order of the A. O. was erroneous and prejudicial to the interest of revenue and therefore, required revision. The Commissioner also observed that the assessee was also not entitled to the deduction of unpaid sales-tax liability and unpaid bonus. The Commissioner also observed that the provisions of section 263 (1) were legally and legitimately invoked in the case of the assessee. He therefore, set aside the order of the A. O. against which the assessee has come up in appeal before us.
9. The learned counsel for the assessee Shri G. N. Gadgil urged before us that there was no material before the Commissioner to assume revisional jurisdiction under section 263 (1) of the Act. The Commissioner failed to appreciate that the assessee had filed Form 10CCAB during the course of assessment proceedings. He pointed out that the return of income was filed by the assessee on 31-12-1991 and the disclaimer forms in 10CCAB were received by the assessee before filing of the return of income. The details of dates on which the Forms 10CCAB were obtained by the assessee are placed on page 62 of the paper book. By drawing our attention to the said page, the learned counsel pointed out that all 10CCAB forms were obtained before the date of filing of the return of income. These forms were also filed during the course of assessment proceedings and therefore, there was no failure on the part of the assessee as alleged by the Commissioner.
10. The learned counsel drew our attention to the provisions of section 80HHC and pointed out that though the word “shall” is used but filing of 10CCAB forms along with the return of income is not mandatory. In the opinion of the learned counsel, obtaining the forms in 10CCAB is mandatory which could be filed any time before the assessment is made. If Form 10CCAB is available before the ITO before completion of the assessment, the A. O. cannot deny the relief to the assessee under section 80HHC of the Act. In other words, the assessee, with a view to obtain the relief under section 80HHC is required to file form 10CCAB during the course of assessment proceedings. In this regard, the assessee has relied on the following decisions :
(1) CIT v. Gujarat Oil & Allied Industries [1993] 201 ITR 325 (Guj.)
(2) CIT v. Malayalam Plantations Ltd. [1976] 103 ITR 835 (Ker.)
(3) R. D. Ram Nath & Co. v. IAC [1991] 36 ITD 355 (Delhi) (SMC)
(4) S. P. Rajagopala Iyer v. GTO [1991] 39 TTJ (Coch.) 43
(5) Mrs. Sudha Sharma v. ITO [1993] 44 ITD 351 (Delhi)
(6) CIT v. Shivanand Electronics [1994] 209 ITR 63 (Bom.).
11. The learned counsel has also pleaded that the assumption of jurisdiction u/s. 263 (1) by the Commissioner is bad in law. He urged that it is more or less settled that an order of the A. O. cannot be termed as erroneous unless it is not in accordance with law. If the A. O. acted in accordance with law making certain assessment, the same cannot be branded as erroneous by the Commissioner simply because, according to him, the order should have been written more elaborately or some disallowance should have been made. In the case of the assessee, Form 10CCAB were filed during the course of assessment proceedings and were available before the A. O. at the time of completion of assessment. His assessment order was therefore, in accordance with law and against such an order, the assumption of jurisdiction under section 263 (1) by the Commissioner is not justified. In this connection, the learned counsel has placed reliance on the following decisions :
(1) CIT v. Gabriel India Ltd. [1993] ITR 108 (Bom.)
(2) CIT v. Smt. Minalben S. Parikh [1975] 215 ITR 81
(3) Venkatakrishna Rice Co. v. CIT [1987] 163 ITR 129 (Mad.)
(4) CIT v. Shri Govindram Seksariya Charity Trust [1987] 166 ITR 580 (MP).
12. The learned counsel continued and pointed out that the A. O. had issued a notice under section 154 on 12-8-1993. The notice was issued by the A. O. to withdraw the claim under section 80HHC and to disallow the sales-tax liability of Rs. 5,244 and the bonus liability of Rs. 18,400. The A. O. however, did not proceed with the rectification and perhaps dropped the proceedings on the ground that the assessment was correctly made and there was no mistake apparent from record which could be rectified under section 154 of the Act. The dropping of proceedings under section 154 therefore, would clearly show that the A. O. was satisfied that the relied under section 80HHC was properly allowed to the assessee.
13. The learned counsel also pointed out that the xerox copy of Forms 10CCA were filed by the assessee on 9-11-1993 during the course of rectification proceedings. He, however, concluded that there is no evidence on record and as a matter of fact, the assessee has also no evidence to show that Forms 10CCAB were filed during the course of assessment proceedings. But there is a definite evidence that Forms 10CCAB were filed by the assessee during the course of rectification proceedings. In this connection, he has drawn our attention to page 18 of the material papers and pointed out that vide its letter dt. 9th November, 1993, the assessee had filed xerox copy of Forms 10CCAB. In the opinion of the learned counsel, the proceedings taken for rectification of assessment to tax were the proceedings for the assessment. When the A. O. issued a notice under section 154 the A. O. wished to continue the assessment proceedings and therefore, filing of Forms 10CCAB during the course of rectification proceedings could be construed as if these forms were filed during the assessment proceedings. The learned counsel, pleaded that this is more or less settled that the rectification proceedings are the assessment proceedings. In this regard, the learned counsel has drawn our attention to the decision of the Supreme Court in the case of S. Sankappa v. ITO [1968] 68 ITR 760. The other decisions relied upon by the learned counsel for this proposition are as follows :
(1) P. M. Bharucha & Co. v. G. S. Venkatesan, ITO [1969] 74 ITR 513 (Guj.);
(2) Giridharilal Jhajharia v. CIT [1970] 78 ITR 133 (Cal.);
(3) Bihar State Road Transport Corpn. v. CIT [1986] 162 ITR 114 (Pat.).
From these decisions, the learned counsel asserted that it is clear that the word “assessment : is used in the Income-tax Act in a comprehensive sense and includes all proceedings starting with filing of the return or issue of notice therefor and ending with determination of tax payable by the assessee. In other words, the proceedings for rectification of assessment of tax are thus the proceedings of assessment. The learned counsel has also drawn our attention to the observations of the learned authors Chaturvedi and Pithisaria in Income-tax Law, Fourth Edition, Vol. 3, page 3730 and Sampath Iyengar’s Law of Income-tax, 8th Edition, Vol. 4, page 4481.
14. The learned counsel also pointed out that the assessee had already filed Forms 10CCAC. He took us through the various columns of the said form and pointed out that the information contained in Form 10CCAC is similar as the information contained in Form 10CCAB. The A. O. was also aware of the total exports sales through export houses and therefore, there should not have been any difficulty for him to allow the deduction under section 80HHC of the Act. In other words, from the full details on record and after verifying the details, the A. O. allowed the deduction under section 80HHC to the assessee and therefore, there was no warrant for the CIT to assume revisional jurisdiction under section 263 (1) of the Act.
15. Regarding the unpaid sales-tax and unpaid bonus, he pointed out that the unpaid sales-tax of Rs. 5,244 was paid on 4-6-1991 and unpaid bonus was paid on 11-1-1994, i.e., before filing of the return of income. Thus, the case of the assessee is covered by the decision of the Patna High Court in the case of Jamshedpur Motor Accessories Stores v. Union of India [1991] 189 ITR 70 and Calculate High Court in the case of CIT v. Jagannath Steel Corpn. [1991] 191 ITR 676. To this extent, there was no error in the order of the A. O. which needed revision under section 263 of the Act.
16. The learned counsel thus concluded that there was no error in the order of the A. O. which caused prejudice to the revenue so as to entitle the CIT to assume jurisdiction under section 263 (1) of the Act. He therefore, prayed that the order of the CIT should be set aside and the order of the ITO should be restored.
17. The learned Senior Departmental Representative Dr. Sunil Pathak on the other hand, strongly defended the order of the CIT. He took us through the sub-section (4A) of the section 80HHC of the Act and point out that according to the provisions of the Act, the deduction under the said section shall not be admissible to an assessee unless the prescribed forms were filed by the assessee along with the return of income. There is no ambiguity in the section which speaks on filing the certificates along with the return of income. In the case of the assessee, the certificates under Form 10CCAB were not filed along with the return of income.
Admittedly, the assessee had filed these certificates allegedly during the course of assessment proceedings. There is also no evidence with the assessment proceedings. He pleaded that the department’s case is that these certificates were not filed by the assessee even during the assessment proceedings. He vehemently contended that there is no evidence on record and even the assessee denies to have any evidence to support the contention that Forms 10CCAB were furnished during the course of assessment proceedings. Thus, in view of the facts of the case, it cannot be said that the assessee did file Forms 10CCAB during the course of assessment proceedings. In the absence of such forms, the assessee was not entitled to the deduction under section 80HHC of the Act. Since the A. O. had allowed such deduction, the order of the A. O. was erroneous and also prejudicial to the interest of revenue. The CIT was thus justified in assuming the jurisdiction under section 263 of the Act.
18. The learned department representative has also analysed the decision of the Bombay High Court in the case of Shivanand Electronics (supra). He conceded that the Bombay High Court has laid down that the forms could be filed before completion of assessment. He however, pointed out that in the said decision, it has also been laid down that if the forms could not be filed along with the return of income, the assessee has to explain the reasons for the delay in filing the Forms 10CCAB. So even if it is assumed that the assessee was entitled to file Forms 10CCAB during the course of assessment proceedings, the assessee should have good and sufficient reasons for such a delay. The reason for delay in furnishing these forms along with the return has not been explained by the assessee either before the revenue or even before the Tribunal. In the absence of good the sufficient cause to justify the delay the assessee is not entitled to the relief under section 80HHC of the Act. The learned departmental representative continued and pointed out that the A. O. had given deduction under section 80HHC without the fulfilment of legal requirements of filing Forms 10CCAB. The order of the A. O. was therefore, erroneous as well as prejudicial to the interest of the revenue.
19. For the purpose of assumption of jurisdiction under section 263 the learned departmental representative pointed out that the issue of notice is not a condition precedent. What the CIT has to do before assumption of jurisdiction under section 263 of the Act is to give an opportunity of being heard to the assessee. The CIT had issued the hearing notice on two occasions vide his letters dated 13-12-1993 and 11-11-1994. The learned departmental representative, urged that the provisions of section 263 were truly complied with and therefore, assumption of jurisdiction was justified. He has also drawn our attention to the decision of the Punjab and Haryana High Court in the case of CIT v. Jaideep Industries [1989] 180 ITR 81. He pointed out that at the time of assumption of jurisdiction by the CIT the said decision was available to him. According to the said decision, it was mandatory that the audit report under section 80J96A) was to be filed along with the return of income. In section 80HHC it has been clearly mentioned that Forms 10CCAB and 10CCAC were to be filed along with the return of income. The decision of the Bombay High Court in the case of Shivanand Electronics (supra) was not available at the time when the CIT had heard the assessee.
20. The learned departmental representative has also pointed out that in order to get the deduction under section 80HHC the assessee had to file forms in original and not the xerox copies thereof. In the case of the assessee, the xerox copies of forms were filed after the issue of notice under section 154. The original certificates were never filed by the assessee. He had also pleaded that the rectification under section 154/155 cannot be the part of assessment proceedings. The appeal or rectification are part of assessment machinery but these are not the part of assessment order. In the case of the assessee, the disclaimer certificates should have been filed before the completion of assessment and not after receipt of notice under section 154 of the Act. The learned departmental representative therefore, prayed that the order of the CIT should be maintained.
21. In reply, the learned counsel pleaded that the requirement of section is that the assessee should only obtained the certificates. Obtaining the certificate is sufficient compliance of the income-tax provision. As is evident from page 62 of the paper book, the assessee in fact, had obtained the certificates before filing of the return. The learned counsel, therefore, reiterated that the CIT was not justified in rejecting the claim of the assessee.
22. We have heard the rival submissions in the light of the judicial decisions relied upon by the parties. Under section 80HHC an Indian company or a person resident in India engaged in the business of exports deduction under the provisions of the Act. Under the sub-section (1A) of section 80HHC the supporting manufacturer is also entitled to certain benefits. However, this benefit is available to a direct exporter as well as supporting manufacturer after fulfilment of the conditions under the Income-tax Act, and the rule 18BBA. For claiming the deduction Forms 10CCAC and 10CCAB have to be filed. In sub-section (4) and sub-section (4A) of section 80HHC it has been mentioned that the required certificate is filed along with the return of income. In other words, on the face of it, it appears from the section that Forms 10CCAC and 10CCAB were required to be filed along with the return of income. Such a proposition was, in fact, supported by the decision of the Punjab and Haryana High Court in the case of Jaideep Industries (supra). However, the Bombay High Court in the case of Shivanand Electronics (supra) examined the provisions of section 80J (6A) of the Act. Under the said section also, it was laid down that two conditions should be fulfilled in order to get the benefit of deduction under the said section. The first condition is that the accounts should be audited by an Accountant. This condition has been held to be mandatory by the jurisdictional High Court. The second condition is that the assessee should furnish the ITO an audit report of the accountant in the prescribed form duly signed and verified by such an According and such report should be filed along with the return of income. The Hon’ble High Court has laid down that the requirement of filing report is mandatory. Failure to file the said report is held to be fatal, to the assessee. But the requirement of filing it along with the return is not mandatory. According to the Hon’ble Court, such a report can be filed along with the return of income or during the course of assessment proceedings but before completion of assessment. Thus, if such a report is filed before the completion of assessment, it would not be fatal to the claim of assessee and the Assessing Officer will have to accept the same. Thus, following the decision of the jurisdictional High Court, we hold that Forms 10CCAB should be filed by the assessee during the course of assessment proceedings. In other words, in the case of assessee before us, the assessee was not required to file the said forms along with the return of income. However, the fact remains that there is no evidence on record to show that the assessee had, in fact, filed the dis-claimer certificate in Form 10CCAB during the course of assessment proceedings. As already mentioned above, the assessment proceedings continued for about 10 days and during this period except filing certain details regarding the exports, no such forms were filed. The learned counsel for the assessee fairly conceded that the assessee had no evidence to prove that the disclaimer certificates in form 10CCAB were filed during the course of assessment proceedings. Thus, the admitted position is that (1) the disclaimer certificates were not filed along with return of income; and (2) there is not evidence that these were filed before the assessment was completed.
23. The assessee alleged to have filed these certificates during the course of assessment proceedings. The filing of disclaimer certificates therefore, was admittedly delayed. For delayed certificates the assessee is required to give the reasonable explanation for the delay. As a matter of fact, the jurisdictional High Court in the case of Shivanand Electronics (supra) has clearly laid down that the delay should be for good and sufficient reasons. It is also laid down that the assessee cannot delay the certificates as a matter right. We would consider it essential to reproduce the relevant observations of the Hon’ble High Court as under :
“It is well-settled that the question whether a statute is mandatory of directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The intent of Legislature has also to be gathered not merely from the words used by the Legislature but from a variety of other circumstances and conditions. One of the test often adopted is to ascertain whether the object of the Legislature will be defeated or furthered by holding it directory. If the object of the enactment will be defeated by holding it directory, it should be construed as mandatory whereas if by holding it mandatory, serious general inconvenience will be created to innocent persons without very much furthering the object of the enactment, it should be construed as directory. A balance has to be struck between the inconvenience of rigidly adhering to the requirements and the convenience of sometimes departing from its terms. Where two or more requirements are lumped together at one place in the same provisions, it would have to be decided which of the conditions is found to be mandatory and another directory strict compliance with the mandatory requirements would amount to compliance with the provision notwithstanding the non-compliance with the directory requirement in the particular manner or form or within the specified time, provided, however, that there is substantial compliance to decide such a controversy. It will to be decided in each case by looking at the subject-matter, the importance of the provisions that has not been strictly complied with and the relation of that provision to the general object intended to be secured by the Act (see p. 68A – F).
Whether 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 duty. He cannot be allowed to say that it was for the Income-tax Officer to ask him to do so. If the assessee does not do his part of the statutory duty, the ITO 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.
Sub-section (6A) of sec. 80J of the Act lays down two conditions which should be fulfilled in order to get the benefit of deduction under the section. The first condition is mandatory. The second condition is that the assessee should furnish to the ITO a report of the accountant who had audited the accounts, in the prescribed form duly signed and verified by such accountant and such report should be filed along with return of income. The requirement of filing the report is mandatory. 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, an assessee fails to file such report along with the return and files it subsequently but before completion of the assessment, it would not fatal to the claim of the assessee and the ITO 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. This, however, does not means that an assessee can, as a matter of right, submit such report at the time before the completion of assessment, and if it so submitted, the ITO is bound to accept the same. Therefore the requirement of filing the audit report ‘along with the return’ is not mandatory in the strict sense of the term but is only directory.
No duty is case on the ITO to ask an assessee, who has failed to file the report of the audit, to do so before rejecting his claim for relief under section 80J. It will amount to exonerating the assessee from the obligation cast on him by the statute and imposing a duty on the ITO which has not been imposed by the statute. The principles of natural justice cannot be stretched to lead to such absurd results.”
24. It therefore, emerges that the assessee did not give good and/or sufficient reasons for which the disclaimer certificates could not be filed in time. It is already held by the Hon’ble High Court that the assessee cannot delay the filing of the certificate as a matter of right. The assessee is required to file a condonation application for delay and if the A. O. finds the reasons are good and sufficient the delay may be condoned. However, there is no such condonation petition in the case of the assessee and as a matter of fact, the assessee neither pleaded before the revenue or before us the reasons for the delay in submitting the certificates.
25. Now, let us examine whether the proceedings for rectification are the proceedings for assessment as contended as contended by the learned counsel for the assessee. The process of assessment has been outlined in sections 143 (3) to 144 but this definition only clarifies that this expression would also include reassessment. Under sub-section (8) of section 2 the assessment has been defined as including that of reassessment. The word ‘assessment’ has been used in the Income-tax Act in so many sections. The said word is used sometimes meaning the computation of income, sometimes determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing the liability on the taxpayer. In some sections, it is used in a wide sense and in some section, s it is used in a restricted sense. The words ‘assessment’ has been used in section 147, section 265, section 173 (before amendment) and section 297 in a restricted sense. In some of the sections, for instance section 297 in a restricted sense. In some of the sections, for instance section 297 the expression “proceedings for assessment” has been used to include also the proceedings for rectification of an assessment already completed. The word ‘assessment’ therefore, has no any fixed connotation or meaning in all the cases. The words used, the assessment, reassessment, fresh assessment, etc., are all of variable import and may carry different meaning depending upon the context in which the words have been used. It therefore, emerges that one particular manner cannot be assigned to the word ‘assessment. The assessee’s contention that rectification proceeding is the assessment proceeding, in our view, does not apply to the completion of assessment under section 143 (1), 143 (3) or section 144. The judicial decisions cited by the assessee in this regard are distinguishable inasmuch as these decisions had dealt with section 297 of the Act. In these cases, the assessments were completed under the 1922 Act and the rectification was to be under the 1961 Act. In these circumstances, it was held that the rectification proceedings were the assessment proceedings. Such a ratio, in our view cannot be applied to the assessments completed under section 143 (3) for the purpose of obtaining the relief under section 80HHC of the Act. We are therefore, of the considered view that the rectification proceedings initiated by the ITO in the case before us was not the assessment proceeding for the purpose of filing the Forms 10CCAB and obtaining the relief under section 80HHC of the Act. There is thus, no merit in the case of the assessee in arguing that the requisite disclaimer forms were filed during the assessment proceedings. We are therefore, of the view that the assessee failed to file the forms and therefore, was not entitled to the relief under section 80HHC of the Act. Even assuming for the sake of argument that the assessee was entitled to file the certificate during the rectification proceedings, it was incumbent on the part of the assessee to explain the delay in filing the disclaimer certificates. No such explanation has been given by the assessee. The Bombay High Court has clearly laid down in the case of Shivanand Electronics (supra) that the delayed certificates could be accepted by the A. O. provided he was satisfied that the delay in filing the same was for good and sufficient reasons. Since the assessee failed to give any reasons for the delay, in our view, was not entitled to the deduction under section 80HHC of the Act. There was thus error in the order of the A. O. which caused prejudice to the revenue and hence, the Commissioner has rightly invoked the provisions of section 263 for this issue.
26. Regarding the unpaid sales-tax liability and unpaid bonus, we find from the facts of the case that the payments have been made by the assessee before the due date for filing the return of income. The issue is therefore, covered by the Patna High Court decision in the case of Jamshedpur Motor Accessories Stores (supra) and Calcutta High Court decision in the case of Sri Jagannath Steel Corpn. (supra). To this extent therefore, there was no error in the order of the Assessing Officer and hence, the rectification under section 263 on this issue was not justified. The assessee succeeds on this point.
27. With the result, the appeal is partly allowed.