2011 (11) TMI 638 - AT - Income Tax

Deduction u/s 80IB(10) - revision u/s 263 - Held that - The requirement of law u/s 80IB(10) for allowing a deduction under this section is only that the project should be commenced and completed within the period prescribed under clause (a) of this section 80IB(10) of the Act. To prove the completion of project within the specified period if the assessee is not able to file a completion certificate other evidence in this regard may be taken into account to determine the actual date of completion. Therefore, the filing of completion certificate is not a condition precedent for allowing a deduction u/s 80IB(10) of the Act. Moreover, we are dealing with the order of the CIT passed u/s 263 of the Act. It is a settled position of law that where the issue is debatable and the assessing officer has taken one of the plausible view, the assessment order cannot be revised u/s 263 of the Act. In the instant case, we are of the view that assessing officer has allowed the deduction u/s 80IB(10) after having examined the other evidence of completion of project which appears to be plausible view. Therefore, his order cannot be revised u/s 263 of the Act. We, therefore, find no merit in the order of the CIT in this regard. Interest on partners drawings - Held that - The withdrawals were made out of the interest free funds. Similar was the position in the assessment year 2007-08 in which the partners credit balance was at ₹ 61,17,712/- and the withdrawal by the partner were at ₹ 26,06,753/-. Since the withdrawals were made out of the interest free funds, no corresponding disallowance of interest paid on loans, can be made. The CIT has not brought out anything in his order that the interest bearing funds were withdrawn by the partners. Moreover, this aspect was duly examined by the assessing officer by making necessary queries. Therefore, we are of the view that without bringing out anything on record that interest bearing funds were diverted for a non-business purpose, the CIT is not justified in holding that the assessing officer ought to have disallowed the corresponding interest on the withdrawal made by the partners of the assessee firm. Thus, we are of the view that the CIT has wrongly exercised his jurisdiction u/s 263 of the Act and we accordingly set aside his order.

Summary

Issues Involved:
1. Deduction under Section 80IB(10) of the Income-tax Act.
2. Disallowance of interest on partners' drawings.

Detailed Analysis:

1. Deduction under Section 80IB(10) of the Income-tax Act:

Facts and Arguments:
The assessee, involved in real estate development, claimed deductions under Section 80IB(10) for the assessment years 2005-06 to 2007-08. The CIT observed that the housing project was approved on 10.6.2004 and completed by September 2008. However, the CIT noted that the completion certificate, a necessary condition for availing the deduction, was not furnished, rendering the assessment order erroneous and prejudicial to the revenue's interest. The assessee contended that in Vijayawada, completion certificates were not issued, and the date of levy of municipal tax should be considered as the completion date. The assessee provided municipal tax assessments of flat owners as evidence.

Tribunal's Findings:
The Tribunal examined the provisions of Section 80IB(10) and noted that while the completion certificate is generally used to determine the date of project completion, the Act does not explicitly state that the certificate is a condition precedent for the deduction. The Tribunal emphasized that other evidence could be considered to determine the completion date if completion certificates are not issued by local authorities. The Tribunal found that the assessing officer had taken a plausible view by accepting the municipal tax assessments as evidence of project completion. Therefore, the CIT's revision of the assessment order under Section 263 was unwarranted.

Conclusion:
The Tribunal concluded that the filing of a completion certificate is not a condition precedent for allowing a deduction under Section 80IB(10). The assessing officer's acceptance of other evidence was a plausible view, and thus, the CIT's order was set aside.

2. Disallowance of Interest on Partners' Drawings:

Facts and Arguments:
The CIT noted that partners of the assessee firm had made significant drawings without being charged interest, while the firm had claimed interest on loans. The assessee argued that the withdrawals were made from interest-free funds available with the firm, and the assessing officer had examined these facts before accepting the claim. For assessment years 2006-07 and 2007-08, the assessee demonstrated that the withdrawals were covered by interest-free funds, leaving no grounds for disallowance of interest.

Tribunal's Findings:
The Tribunal reviewed the details and found that the assessee had sufficient interest-free funds to cover the partners' withdrawals. The CIT did not dispute these facts in his order. The Tribunal noted that the assessing officer had made necessary inquiries and accepted the explanations provided by the assessee. Without evidence that interest-bearing funds were diverted for non-business purposes, the CIT's directive to disallow corresponding interest was unjustified.

Conclusion:
The Tribunal held that the CIT had wrongly exercised his jurisdiction under Section 263, as the assessing officer had duly examined the issue and found the withdrawals to be made from interest-free funds. The CIT's order was set aside.

Final Judgment:
The appeals of the assessee were allowed, and the orders of the CIT under Section 263 were set aside. The Tribunal found no merit in the CIT's revisions, affirming the assessing officer's original decisions on both the deduction under Section 80IB(10) and the non-disallowance of interest on partners' drawings.