9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (1) TMI 831 - AT - Income TaxRectification u/s 254 - Admission of additional evidence - HELD THAT - In view of the additional evidences filed by the assessee which were never produced before the lower authorities and were filed for the first time before the Tribunal, therefore, the additional evidences were admitted and the issue was restored to the file of the AO to examine the documents and allow the deduction as per law after verification of the completion of the project prior to 31st March, 2008. It is clearly and categorically stated that the Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. Therefore, in our opinion, the apprehension of the ld. Counsel for the assessee that the Assessing Officer may not decide the issue as per law is without any merit. The Assessing Officer is bound to follow the settled principle of law on this issue. We, therefore, do not find any infirmity in the order of the Tribunal so as to rectify the same as per provisions of section 254(2) of the Act. The Miscellaneous Application filed by the assessee is accordingly dismissed.
Issues Involved:
1. Rectification of mistakes apparent from the record. 2. Applicability of section 80IB(10) conditions to projects approved before 01.04.2005. 3. Requirement of completion certificate for availing deduction under section 80IB(10). Issue-wise Detailed Analysis: 1. Rectification of Mistakes Apparent from the Record: The assessee filed a Miscellaneous Application under section 254(2) of the Income Tax Act, 1961, requesting rectification of mistakes in the Tribunal's order dated 19.07.2021. The Tribunal had previously disposed of appeals filed by the Department for AY 2005-06 and 2006-07 and cross objections by the assessee involving common issues. The application was filed to rectify mistakes apparent from the record in the order dated 19.07.2021. 2. Applicability of Section 80IB(10) Conditions to Projects Approved Before 01.04.2005: The assessee, a cooperative society engaged in residential project development, claimed deductions under section 80IB(10) for AY 2005-06 and 2006-07. The Assessing Officer denied the deduction on grounds including non-compliance with the built-up area limit for commercial establishments and the requirement of a completion certificate by 31.03.2008. The CIT(A) allowed the deduction, stating that the conditions introduced by the Finance (No.2) Act, 2004, effective from 01.04.2005, were not applicable to projects approved before this date. The Tribunal upheld CIT(A)'s decision regarding the built-up area condition, citing the Supreme Court's decisions in CIT vs. Sarkar Builders and CIT vs. Vatika Township Pvt. Ltd., which supported the prospective nature of the amendment. 3. Requirement of Completion Certificate for Availing Deduction Under Section 80IB(10): The Tribunal initially restored the issue of the completion certificate to the Assessing Officer for fresh adjudication, admitting additional evidence submitted by the assessee. The assessee argued that the restrictive condition of obtaining a completion certificate by 31.03.2008 was not applicable to projects approved before 01.04.2005, supported by judicial precedents including CIT vs CHD Developers Ltd and PCIT vs Sahara States Gorakhpur. The assessee also cited the Supreme Court decision in PCIT vs. Majestic Developers, which held that a certificate from a registered architect was sufficient for proving project completion within the specified time. The Tribunal, however, restored the issue to the Assessing Officer for verification, despite the settled legal position. The assessee contended that this constituted a mistake apparent from the record, requiring rectification under section 254(2) as per the Supreme Court's decision in ACIT v. Saurashtra Kutch Stock Exchange Ltd. The Tribunal dismissed the Miscellaneous Application, stating that the Assessing Officer is bound to follow the settled legal principles and decide the issue as per law after giving due opportunity to the assessee. Conclusion: The Tribunal concluded that there was no merit in the assessee's apprehension regarding the Assessing Officer's adherence to the law and found no infirmity in its original order. Consequently, the Miscellaneous Application filed by the assessee was dismissed, and the order pronounced on 07th December 2021.
|
