2014 (8) TMI 789 - AT - Income Tax

Deduction u/s 80IB Real estate development business Completion certificate not furnished Held that - The project was approved before 01.04.2005 and the building was completed on 31.03.2008 - assessee has incurred losses in the next two years when assessee stated to have sold the finished apartments - assessee wanted those losses to be set off to the income assessed in the year, as can be seen from the statements before the AO and CIT(A) - prima facie a doubt arises whether the project was completed before 31.03.2008 or went on in later years also - even though on legal principles insistence of completion certificate is not required for the project which are approved before 01.04.2005, deduction cannot be allowed simply on legal principles without verifying the facts - Since the fact that project was completed before 31.03.2008 could not be verified, the AO is directed to examine the issue and allow deduction if assessee proves that it had completed the project before 31.03.2008 Decided in favour of Assessee.

Summary

Issues:
Appeal against disallowance of deduction under section 80IB.

Analysis:
The assessee, a real estate development company, filed an appeal against the disallowance of deduction under section 80IB by the Ld. CIT(A). The primary issue was the non-furnishing of a completion certificate for the project. The assessee claimed to have followed the percentage completion method and submitted evidence to support eligibility for the deduction. However, the Assessing Officer (A.O.) disallowed the claim due to the absence of a completion certificate from the authorities.

Before the Ld. CIT(A), the assessee argued that it had provided all relevant evidence, including an application to the local authority for the certificate of completion. The Ld. CIT(A) upheld the disallowance, citing discrepancies between the approved plan and sale deeds, and the absence of a completion certificate. The assessee contended that efforts were made to obtain the certificate, referencing directions from the Hon'ble High Court and a Coordinate Bench decision supporting the non-requirement of a completion certificate for projects approved before a certain date.

During the proceedings, the Departmental Representative (D.R.) highlighted the deviations in the project plan and the necessity of a completion certificate post-amendment to the Act. The Tribunal analyzed the legal position, citing precedents and observed that for projects approved before a specified date, the completion certificate was not mandatory. However, it raised concerns about the actual completion date of the project and the losses incurred by the assessee in subsequent years, indicating a need for further verification.

Ultimately, the Tribunal allowed the assessee's appeal for statistical purposes, directing the A.O. to re-examine the issue of deduction eligibility in light of the project completion date. The A.O. was instructed to consider additional evidence, including annual reports of subsequent years and any certificate issued by the local authority. The decision emphasized the importance of verifying facts in determining deduction eligibility, despite the legal principle exempting certain projects from the completion certificate requirement.

In conclusion, the judgment addressed the core issue of deduction disallowance under section 80IB, emphasizing the need for factual verification regarding project completion and deviations from approved plans, while also acknowledging the legal provisions exempting certain projects from the mandatory completion certificate requirement.