2015 (6) TMI 803 - AT - Income Tax

Reopening of assessment - deduction u/s. 80IB(10) denied - contention of the later AO that since assessee has purchased the land as early as 1996, the project was to be deemed to have started then and the same was prior to 01-10-1998. Therefore, the assessee is not eligible for deduction - Held that - As far as reopening of assessments u/s. 147/148 are concerned, we agree with the Ld.CIT(A) that this is a mere change of opinion. In fact, the AO at the time of completion of assessment has indeed taken pains in examining the eligibility and also deputed his inspector and allowed the deduction after due verification. The project has started after 01-10-1998 and therefore, the contention of the AO that the project started before that date is not factually correct. Moreover, claim of assessee that assessee has entered into joint venture agreement and all the parties have started the project in their individual capacity. As per record, members contributed their land as capital, whereas the project was conceived and constructed by the AOP and the claim was accordingly made in the hands of the AOP. Since these aspects were examined by the AOs at the time of original assessment, the opinion of the subsequent AO that AOP continued the project cannot be accepted. Lastly, with reference to the project completion which was one of the reasons for reopening assessments and also for denying the deduction in AY. 2006-07 (which was upheld by the CIT(A)), this was on the basis of subsequent amendment to Sub-Section 10 of Section 80IB(10) w.e.f. 01-04-2005. Furnishing of Project Completion Certificate was not even stipulated in AYs. 2003-04 and 2004-05, therefore, that cannot be the basis for reopening the assessments. Therefore, AO s stand on this regard cannot be accepted. Assessee has completed its project by 31-03-2008 and has requested the local authorities for approving the final project. If the local authorities did not issue the Project Completion Certificate as requested by assessee, it is not possible to furnish the said certificate to the Revenue authorities. All the evidences on record do indicate that assessee has completed the project, therefore, just because assessee could not furnish the Project Completion Certificate , the deduction cannot be denied on that basis. the eligible deduction cannot be denied to the assessee. - Decided in favour of assessee

Summary

Issues Involved:
1. Eligibility for deduction under Section 80IB(10) of the Income Tax Act.
2. Validity of reopening assessments under Section 147.
3. Requirement and impact of 'Project Completion Certificate' on deduction claims.
4. Penalty under Section 271(1)(c) for disallowed claims.

Detailed Analysis:

1. Eligibility for Deduction under Section 80IB(10):
The assessee, an AOP formed by a joint venture agreement, claimed deductions under Section 80IB(10) for developing a housing project. The original assessments for AYs 2003-04 to 2005-06 allowed these claims after thorough verification by the AOs, including field inspections. However, for AY 2006-07, the AO disallowed the deduction due to the non-furnishing of a 'Project Completion Certificate'. The AO reopened earlier assessments based on this non-furnishing, arguing that the project started before the stipulated date (01-10-1998), was a continuation of individual projects, and was not completed within the specified limits (before 31-03-2008).

2. Validity of Reopening Assessments under Section 147:
The CIT(A) ruled that the reopening of assessments was invalid as it was based on a change of opinion, with no new information indicating income had escaped assessment. The original assessments had already verified the eligibility criteria under Section 80IB(10) in detail, including physical inspections and document verifications. The CIT(A) relied on legal precedents, including CIT Vs. Kelvinator of India Ltd., to support the decision that reopening was not justified.

3. Requirement and Impact of 'Project Completion Certificate':
The AO's insistence on a 'Project Completion Certificate' for AY 2006-07 was based on an amendment effective from 01-04-2005, which was not applicable to projects approved before this date. The CIT(A) and subsequently the Tribunal held that this requirement could not be retroactively applied to projects approved before the amendment. The Tribunal referenced the Supreme Court judgment in CIT-19, Mumbai Vs. M/s. Sarkar Builders, which clarified that new conditions could not be imposed on projects approved under previous rules. The Tribunal also noted that the project was indeed completed by 31-03-2008, and the failure to obtain a certificate due to local authority delays could not justify denial of the deduction.

4. Penalty under Section 271(1)(c):
The AO had levied penalties under Section 271(1)(c) for AYs 2003-04 and 2004-05 after disallowing the deduction claims. Since the Tribunal upheld the CIT(A)'s decision to set aside the reopening of assessments, the penalties were also invalidated. The Tribunal dismissed the Revenue's appeals against the cancellation of penalties and the cross objections as infructuous.

Conclusion:
The Tribunal upheld the CIT(A)'s orders setting aside the reassessment proceedings for AYs 2003-04, 2004-05, and 2005-06, and dismissed the Revenue's appeals. For AY 2006-07, the Tribunal directed the AO to allow the deduction under Section 80IB(10), as the assessee met all the conditions applicable at the time of project approval. The Tribunal also dismissed the Revenue's appeals against the cancellation of penalties and the cross objections as infructuous. The assessee's appeal for AY 2006-07 was allowed.