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TMI Blog2017 (3) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... on of project as envisaged u/s. 80IB(10)(a)(iii) shall be computed from the date NA permission is granted. Accordingly, for claiming deduction u/s. 80IB(10) the due date of completion of assessee’s housing project is 31-03-2013. Thus, in view of our above findings ground raised in the appeal by the Department is dismissed. The housing project of the assessee was approved for total 128 flats. 72 flats in Building A (Wings A and B) and 56 flats in Building B (Wings C and D). Architect under whose supervision housing project is constructed, had certified that 36 flats in Wing A and equal numbers of flats in Wing B including lower and upper parking are complete. Thus, it is evident that the assessee had applied for issuance of occupancy certificate in respect of 72 flats of Building A, well before the due date. The PMC granted partial occupancy letter in respect of 40 flats, i.e. 26 flats in Wing A and 14 flats in Wing B on 27-07-2012. Again vide communication dated 27-12-2013 the PMC granted occupancy letter in respect of 19 flats, i.e. 3 flats in Wing A and 16 flats in Wing B. Thus, out of 128 flats, the assessee received completion/occupancy certificate in respect of 115 flats. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completed the housing project on or before 31-03-2012. Since, the assessee could not obtain final occupancy certificate from the local authority till 31-03-2012, the assessee is not entitled to the benefit of deduction u/s. 80IB(10) of the Act. ii. The provisions of section 80IB(10) does not allow for proportionate deduction, even if the assessee has obtained completion certificate in respect of some of the flats prior to 31- 03-2010 still the assessee is not eligible to claim deduction u/s. 80IB(10) of the Act as completion certificate in respect of remaining flats was not received by the assessee before due date. iii. The assessee has not obtained final occupancy certificate from the local authority i.e. PMC in respect of 32 flats out of total 128 flats in Buildings A and B, therefore, the assessee is not eligible to claim deduction u/s. 80IB(10) of the Act. Aggrieved by the assessment order dated 28-03-2013, the assessee filed an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) accepted the contentions of the assessee and granted deduction u/s. 80IB(10) of the Act in toto on the housing project developed by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued after the due date i.e. 31-03-2012. The Assessing Officer vide letter dated 21-03-2013 sought clarification from the office of PMC regarding the status of occupancy certificate in respect of housing project under question. The PMC vide letter dated 25-03-2013 informed that completion/occupancy certificate in respect of 32 flats (10 flats in Wing A and 12 flats in Wing B) have not been issued. Where occupancy /completion certificate has not been received before due date from the competent authority deduction u/s. 80IB(10) cannot be granted to the assessee. In support of his submissions the ld. DR placed reliance on the decision of Hon ble Madhya Pradesh High Court in the case of Commissioner of Income Tax Vs. Global Reality reported as 379 ITR 107 and the decision of Lucknow Bench of the Tribunal in the case of Fortuna Foundation Engineer Consultants Pvt. Ltd. Vs. ACIT in ITA No. 283/LKW/2012 for the assessment year 2006-07 decided on 22-08-2012. 5. On the other hand Shri Ramesh Rao appearing on behalf of the assessee vehemently supported the findings of Commissioner of Income Tax (Appeals) in allowing deduction u/s. 80IB(10) of the Act. The ld. AR submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion certificate issued by the assessee s Architect dated 20-03-2012 the PMC released 40 flats on 27-07-2012 and again on 27-12-2013 the PMC released 19 flats. Withholding of completion/occupancy certificate in respect of said flats by PMC to set up telephone exchange does not mean that the said flats are incomplete or that the project was not complete. The housing project is complete in every respect and the assessee has legitimately claimed deduction u/s. 80IB(10) of the Act. The assessee had applied for issuance of final completion certificate well within time. The delay in issuance of completion /occupancy certificate is beyond the control of assessee for which the assessee cannot be faulted. In support of his contentions the ld. AR of the assessee has placed reliance on the decision of Hon ble Gujarat High Court in the case of Commissioner of Income Tax Vs. Tarnetar Corporation reported as 362 ITR 174 and the decision of Pune Bench of the Tribunal in the case of Gera Developments Pvt. Ltd. Vs. JCIT reported as 169 TTJ 181. 6. We have heard the submissions made by the representatives of rival sides and have perused the orders of the authorities below. We have also considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose supervision housing project is constructed, had certified that 36 flats in Wing A and equal numbers of flats in Wing B including lower and upper parking are complete. Thus, it is evident that the assessee had applied for issuance of occupancy certificate in respect of 72 flats of Building A, well before the due date. The PMC granted partial occupancy letter in respect of 40 flats, i.e. 26 flats in Wing A and 14 flats in Wing B on 27-07-2012. Again vide communication dated 27-12-2013 the PMC granted occupancy letter in respect of 19 flats, i.e. 3 flats in Wing A and 16 flats in Wing B. Thus, out of 128 flats, the assessee received completion/occupancy certificate in respect of 115 flats. The final occupancy certificate in respect of 13 flats was withheld by the PMC for non-handing over of amenity space. There is no document on record to show that occupancy/completion certificate was not issued by the PMC on account of incomplete flats. 9. The assessee had applied for grant of completion/occupancy certificate in respect of entire 128 flats well before due date. Delay caused in issuance of completion/occupancy certificate by PMC cannot be attributed to the assessee. The Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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