2013 (10) TMI 1386 - AT - Income Tax

Eligibility to claim of deduction u/s 80IB - Held that - Amendment to Section 80IB(10) was brought by the Statute w.e.f. assessment year 2005-06, accordingly, assessee s claim for deduction, on the plea of for non-filing of completion certificate cannot be declined in the assessment year 2003-04, under consideration. No inirmity in the order of CIT(A) for allowing assessee s claim of deduction u/s 80IB(10). Reopening of assessment - withdrawal of claim - Held that - As per C.B.D.T. instructions, assessee is eligible to claim deduction u/s 80IB on the basis of progress of the project and without waiting for its completion and Assessing Officer is also required to consider assessee s claim while framing assessment u/s 143(3)/143(1). If the Assessing Officer finds that all the conditions of Section 80IB has been complied with except the completion certificate, which can be furnished only after completion of project within stipulated period, the Assessing Officer is required to allow the proportionate claim attributable to the completion of project by the end of relevant financial year. If subsequently, the Assessing Officer finds that after completion of statutory period the assessee has failed to furnish the completion certificate, the deduction so allowed knowingly is liable to be withdrawn. Accordingly, we do not find any infirmity in the order of CIT(A) for upholding the reopening of assessment for the purpose of withdrawal of deduction claimed and allowed u/s 80IB(10). No infirmity in the orders of lower authorities for withdrawal of claim of deduction allowed u/s 80IB(10)while framing assessment u/s 143(3), due to non-furnishing of completion certificate, after completion of stipulated period of four years which expired on 31.03.2008.

Summary

Issues Involved:
1. Disallowance of deduction claimed under Section 80IB(10) of the Income-tax Act, 1961.
2. Validity of reassessment proceedings initiated under Section 147 of the Income-tax Act, 1961.
3. Requirement of filing an audit report in Form 10CCB.
4. Requirement of completion certificate from the local authority for claiming deduction under Section 80IB(10).

Issue-wise Detailed Analysis:

1. Disallowance of Deduction Claimed Under Section 80IB(10):
The Revenue appealed against the CIT(A)'s order, which deleted the addition of Rs. 29,52,969 made by the Assessing Officer (AO) by disallowing the deduction claimed under Section 80IB(10). The AO disallowed the deduction due to the non-filing of the audit report in Form 10CCB with the return and the absence of a completion certificate from the Municipal Corporation. The CIT(A) allowed the deduction, citing that the audit report was filed during reassessment proceedings and that the requirement for a completion certificate was not applicable for the assessment year 2004-05. The Tribunal upheld the CIT(A)'s decision, stating that the audit report filed before the completion of the assessment is acceptable, and the requirement for a completion certificate was introduced prospectively from assessment year 2005-06.

2. Validity of Reassessment Proceedings Initiated Under Section 147:
The reassessment proceedings were initiated under Section 147 by issuing a notice under Section 148. The AO reopened the assessment on the grounds that the assessee did not file the audit report in Form 10CCB with the return and did not complete the housing project by 31.03.2008, as no completion certificate was issued by the local authority. The CIT(A) upheld the reassessment proceedings, stating that the AO had gathered fresh material indicating the assessee's failure to fulfill the conditions for deduction under Section 80IB(10). The Tribunal agreed with the CIT(A), noting that the reassessment was justified due to the failure to disclose fully and truly all material facts necessary for assessment.

3. Requirement of Filing an Audit Report in Form 10CCB:
The AO disallowed the deduction under Section 80IB(10) because the audit report in Form 10CCB was not filed with the return. The CIT(A) allowed the deduction, referencing the jurisdictional High Court's decision in CIT Vs Panama Chemical Works, which held that failing to file the audit report with the return but submitting it before the completion of the assessment is not fatal to the claim. The Tribunal upheld this view, stating that the audit report filed before the completion of the assessment is acceptable and does not justify the rejection of the deduction claim.

4. Requirement of Completion Certificate from the Local Authority:
The AO disallowed the deduction under Section 80IB(10) because the assessee did not furnish a completion certificate from the Municipal Corporation by 31.03.2008. The CIT(A) allowed the deduction, stating that the requirement for a completion certificate was introduced prospectively from assessment year 2005-06 and was not applicable for the assessment year 2004-05. The Tribunal upheld this view, noting that the law applicable is the law in force on 1st April of the assessment year, and the requirement for a completion certificate was not a condition for claiming deduction under Section 80IB(10) for the assessment year 2004-05.

Conclusion:
The Tribunal dismissed the Revenue's appeal and upheld the CIT(A)'s order allowing the assessee's claim for deduction under Section 80IB(10). The Tribunal also dismissed the assessee's appeal against the reassessment proceedings and upheld the withdrawal of the deduction for the assessment year 2005-06 due to non-furnishing of the completion certificate. The Tribunal's decisions were based on the interpretation of the relevant provisions of the Income-tax Act, 1961, and the applicable case laws.