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TMI Blog2017 (8) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 143(3) of the Income Tax Act, 1961(hereinafter 'the Act'). 2. The only common issue in all these three appeals of assessees is against the order of CIT(A) confirming the action of the AO in disallowing the claim of deduction under section 80IB(10) of the Act. The facts and circumstances and issue is exactly identical in all the three appeals except the quantum, hence, we will take the facts from ITA No. 2888 /Mum/2016 and also reproduced the ground, which reads as under: - "1. In the facts and circumstances of the case and in law, the assessing officer erred in disallowing deduction of Rs. 24,88,438 under section 80IB(1) on the basis of erroneous insufficient and incorrect reasoning which are contrary to the facts and evidence on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided the issue against assessee by observing in Para 5.0 (Vi) as under: - "(vi) In view of the above discussion and respectfully following the recent decision of the F-1on'ble M.P. High Court, (a) the appellant is not entitled for deduction u/s.80IB(10) of the Act, even if the Jurisdictional ITAT in appellant's own case has decided in favour of the appellant as the Hon'ble High Court of MP in the case of CIT vs. M/s. Global Reality in ITA Nos. 40/2012, 36/2012 & 35/2012 order dated 21.08.2015 has decided in favour of the Revenue on similar issue and facts of the case (b) In the appellant case, the commencement certificate was dated 17.07.2003 and as stated by the AR of the appellant that all conditions were compiled except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore October 2006 as issued by the architect M/s W N Associates dated 12-10-2006. 5. We find that the architect Shri W N Associates vide their letter dated 03-10-2007 has filed completion certificate for issuance of completion certificate to the associate planner East Siddiqui Limited. Vasai district Thane. The relevant letter reads as under: - "Sub: File No BP-3145(West) I hereby certify that the carrying out of development for proposed Residential with shopline building No1, 5(Type C1A, C1, A9) 6,7 in Section VII on Plot Nos. 1 to 8, 14 to 205, 214 to 218, 228 to 232, 240, 241, open space garden road in S. No. 56 to 58, 91P, 92 to 95, 98, 100, 102, 103, 104, 136, 137, 148 to 157, 165 to 171, 173, and S. No 90, S. No 178 located at v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdictional High Court concluded that upto 31st March, 2005, deduction under s. 80-IB(10) is allowable to housing projects approved by the local authority having residential units with commercial user to the extent permitted under the DC Rules/Regulations framed by the respective local authority irrespective of the fact that the project is approved as 'housing project' or 'residential plus commercial'; Tribunal was not justified in holding that upto 31st March, 2005, deduction under s. 80-IB(10) would be allowable to the projects approved by the local authority having residential building with commercial user upto 10 per cent of the total built-up area of the plot; cl. (d) inserted in s. 80-IB(10) w.e.f. 1st April, 2005 is prospective an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the ratio laid down in the case of CHD Developers by Delhi Bench of the Tribunal in ITA no.4694/Del/10 for A.Y. 2007-08, which was later on affirmed by Hon'ble' Delhi High Court (ITA No.298 of 2013) order dated 22/01/2014, we direct the Assessing Officer to grant the claimed deduction to the assessee." 7. We have also gone through the Judgment of Hon'ble Bombay High Court in the case of Hindustan Samuh Awas Ltd. (supra) wherein it is held as under: - "11. The question we raise here is whether the explanation introduced an element of harshness to such an extent that it rendered the main provision nugatory? In our view, the explanation is introduced recently to put an end to a controversy, which might arise before the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of Completion Certificate from their side, can it be said that such certificate would alone decide the date of completion of the project? The answer is in negative. 12. In the facts of this case, admittedly, the Architect of the project had given a certificate prior to 31.03.2008. The respondent submitted application to the Municipal authority along with such certificate well in time on 25.03.2008. It seems that the Municipal authorities directed the respondent to deposit certain amount for issuance of Completion Certificate on 27.03.2008 and the amount was accordingly deposited on 31.03.2008. Thereafter, the certificate was issued in October, 2008. This delay cannot be attributed to the respondent assessee." 8. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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