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2016 (12) TMI 865 - AT - Income TaxRevision u/s 263 - claim of deduction under section 80IB(10) wrongly allowed - Held that - We find that the findings as recorded by the Commissioner were contradictory and conflicting and there was no of application of mind to the facts on records and he proceeded to set aside the assessment for the reasons which were conflicting and based upon wrong appreciation of facts on record. On one hand the commissioner has observed that audit report in Form 10CCB was not filed whereas contradicting his own observation he further noted that AO failed to examine the audit report filed along with the return of income. According to the assessee the column no.26 of the audit report of form No.10CCB the column was marked as NIL as the assessee had not claimed any deduction u/s 80IB(3,4,5 and 7) whereas column No.29 and 30 were duly filled in and ₹ 4,12,60,224/- was mentioned as claim of deduction u/s 80IB(10) of the Act which appears to be correct. We also find that there was a certificate appended by the Auditor at the end of the said form in respect of the claim under section 80IB(10) of the Act . Thus the assessment framed by the AO was correct and was wrongly set aside by the Commissioner by exercising revisionary jurisdiction/powers u/s 263 of the Act. The case of the assessee is also supported and squarely covered by the decision in the case of Hindustan Samuh Awas Ltd (2015 (10) TMI 2306 - BOMBAY HIGH COURT ) in which the Hon ble Bombay High Court has held that even if the project is part completed and was granted completion certificate for the work completed, the assessee is entitled for claiming benefit u/s 80IB(10) of the Act - Decided in favour of assessee
Issues Involved:
1. Validity of the order passed under section 263 of the Income Tax Act, 1961. 2. Eligibility of the assessee for deduction under section 80IB(10) of the Income Tax Act, 1961. 3. Examination of the completion certificate and related documents. 4. Submission and verification of Form 10CCB. Detailed Analysis: 1. Validity of the Order Passed Under Section 263 of the Income Tax Act, 1961: The assessee challenged the order of the Commissioner of Income Tax (CIT) passed under section 263 of the Income Tax Act, 1961, claiming it violated the principle of natural justice. The CIT had set aside the assessment order passed by the Assessing Officer (AO) and directed a fresh assessment after examining the documents and conducting an inquiry. The CIT observed that the AO had failed to examine crucial requirements for the deduction under section 80IB(10), making the assessment order erroneous and prejudicial to the interest of the revenue. 2. Eligibility of the Assessee for Deduction Under Section 80IB(10) of the Income Tax Act, 1961: The assessee had claimed a deduction under section 80IB(10) amounting to ?4,12,68,224/-. The project "Hillscape" was approved on 20.4.2001, and the completion certificate was issued on 31.3.2008. The CIT noted that the AO had allowed the deduction without properly verifying the completion of the project and the issuance of the completion certificate. The CIT argued that the project was not completed as required under section 80IB(10), as only a partial completion certificate ("BHOGVATA PATRA") was issued for 72 flats out of 84. 3. Examination of the Completion Certificate and Related Documents: The CIT observed that the final completion certificate from Pune Municipal Corporation had not been issued for the entire project. The assessee argued that the delay in issuing the completion certificate was due to the Pune Municipal Corporation's failure to widen the road on the project land. The CIT concluded that the AO had not examined the issue of the completion of the project, leading to an erroneous assessment order. 4. Submission and Verification of Form 10CCB: The CIT noted that the assessee did not furnish Form 10CCB in the prescribed proforma, duly certified and signed by the Chartered Accountant (CA). The CIT observed that the AO failed to examine the audit report annexed with the return of income, which mentioned NIL in column 26 regarding details of deduction admissible under Chapter VIA. The assessee argued that the column was marked NIL because it was meant for deduction under section 80IB(4)(2), whereas the claim was mentioned in column 27. Conclusion: The Tribunal found merit in the assessee's contentions and held that the delay in issuing the completion certificate was attributable to the Pune Municipal Corporation. The Tribunal observed that the assessee had completed the construction and applied for the completion certificate before 31.3.2008, satisfying the conditions under section 80IB(10). The Tribunal also noted that the CIT's findings were contradictory and based on incorrect appreciation of facts. The Tribunal relied on the decision of the Bombay High Court in the case of Hindustan Samuh Awas Ltd, which held that an assessee is entitled to deduction under section 80IB(10) even if the project is part completed and a completion certificate is issued for the work completed. Consequently, the Tribunal set aside the order of the CIT and upheld the assessment framed by the AO, allowing the assessee's appeal.
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