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TMI Blog2016 (10) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) as levied by the AO under section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act). 3. Facts of the case are that a search and seizure action u/s 132(1) of the Income Tax Act, 1961 was carried out on 22.9.2005. The assessment proceedings were completed u/s 143(3)(ii) of the Act determining the total income at ₹ 17,272/-. Thereafter, the Commissioner of Income Tax exercising the revisionary powers under section 263 of the Act set aside the assessment being erroneous and prejudicial to the interest of interest of Revenue directed the AO to pass assessment order denovo. The assessment u/s 143(3) r.w.s.263 of the Act completed on 31.12.2009 determining the total income of ₹ 14,88,910/-. The penalty proceedings under section 271(1)(c) of the Act were initialed for the disallowance of deduction claimed u/s 80IB(10) of ₹ 14,84,029/-. During the course of setting aside assessment proceedings, the AO observed that the approval in respect of the housing project was obtained more than once and in that case, when the project approved was taken more than once then the housing project would be deemed to have been approved on the date on which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has to be examined. In the instant case, the appellant claimed deduction under section 80IB (10) though it is crystal clear, from a plan reading of the provisions of the Act that it is not entitled to the claim. The AO has pointed out in the order of penalty that on verification of the return of income filed it was revealed that since the date of commencement of the project was before 1.10.1998, it was not eligible for the claim. The provisions of the Act are crystal clear and there is no ambiguity. Despite the clear provisions of law the appellant has made the claim and therefore as stated by the AO, it s submissions that it was a claim bonafide made, rings hollow, It is not as though two views were possible, in the instant case of the appellant, on facts there is only one view possible, the view that the appellant is not entitled to deduction under section 80IB(10). In the circumstances, the appellant cannot equate the claim with making a wrong claim; in fact in the appellant s case it is a false claim which has been made and but for verification on the part of the AO, the claim would have got allowed. As held by the Bombay High Court in the case of Jyoti Laxman Konkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order passed by the ld.CIT(A) was wrong as the assessee has not concealed its income or filed inaccurate particulars of income and has fully disclosed all the details /facts qua claiming deduction u/s 80IB(10) of the Act, in the return of income, and that in the original assessment proceedings, the claim of the assessee was duly accepted by the AO. It is only in the setting aside proceedings which were framed in consequence to the order passed by the Commissioner u/s 263 of the Act, the said disallowance was made and that too by wrong appreciation of facts of the assessee s case. The ld. AR submitted that the project in question was initially started in the year 1996 for which the commencement certificate was obtained on 10.1.1996 which was before the date 1.10.1998 and this was the sole reason for rejection of claim of the assessee u/s 80IB(10) of the Act by relying on the Rule 18BBB of the Rules that the conditions were not fulfilled for claiming deduction whereas as a matter of fact, the assessee acquired the development of right of the project vide agreement dated 28.4.1999 and obtained the fresh certificate of commencement on 11.07.2000 and thereafter the project was com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted. However, the Commissioner cancelled the assessment by exercising the powers under section 263 of the Act. The AO in the assessment order passed under section 143(3) r.w.r.263 order dated 31.12.2009 assessed the income of the assessee at ₹ 14,88,910/- by rejecting the claim of the assessee u/s 80IB(10) of the Act. Looking into the facts of the case in totality we find merit in the argument of the ld.AR that in case of certificate of commencement/approval was granted twice to the housing project then the later date or subsequent approval/commencement certificate shall be considered for the purpose of determining the claim of the assessee under section 80IB(10) of the Act. The another plea of the ld.AR that the claim was duly certified by the Chartered Account in Form No. 10CCB r.w.section 80IB(10) and rule 18BBB of the Rules. This argument of the assessee finds force from the decision rendered in the case of Ashray Premises (P.) Ltd.(supra) in which it has been held that if the approval of project is taken two times then subsequent and second approval shall be considered for the purpose of determining the claim u/s 80IB(10). 6. In our opinion, for mere making of claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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