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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 ..... e issue is covered by the Tribunal decision in assessee’s own case in the immediate preceding year. - Decided in favour of assessee. - ITA No. 2887/Mum/2016, ITA No. 2889/Mum/2016 And ITA No. 2888/Mum/2016 - - - Dated:- 23-8-2017 - SRI MAHAVIR SINGH, JM For The Assessee : Shri Bhupendra Shah, AR For The Revenue : Shri T.A. Khan, DR ORDER PER MAHAVIR SINGH, JM: These three appeals by different assessees are arising out of the order of CIT(A)-3, Mumbai, in appeal Nos. 51, 47 127-THN/14-15 dated 18-01-2016. The Assessments were framed by ITO ward-4(1), Thane for the A.Y. 2011-12 2012-13 vide orders dated 03-03-2014, 03-12-2014 10-03-2015 under section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate was dated 17.07.2003 and as stated by the AR of the appellant that all conditions were compiled except could not obtain completion certificate from Local Authority before 31.03.2008 Inspite of the architect certificate that the project was completed before October 2006 issued by MIs. W. N. Associates dated 12.10.2006. Due to some technical reasons, the appellant was unable to obtain the Occupancy certificate from the Local Authority. (c) The appellant has not obtained the completion certificate or occupancy certificate from local authority before or on 31.03.2008 and even till date the appellant has not obtained the completion certificate or occupancy certificate. (d) As discussed in the above para (v), the appellant has not fulfilled the basic conditions to obtain the Occupancy certificate or completion certificate from Competent Authority. (e) In addition to the above, it is a precedent that the decision of the Superior Court over rules the decision of the lower court on similar issue and facts. Therefore, the decision in the case of National Textiles reported in 216 CTR 153 has held that the Lowe Court always bound by higher Court and cannot deviate from superior Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s own case for AY 2007-08 following the jurisdictional high court decision in the case of CIT vs. Hindustan Samuh Awas Ltd.(2015) 377 ITR 150 (Bom) has allowed the claim of the assessee by observing in Para 2.4 as under: - 2.4. In the aforesaid case, the Hon'ble 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 and not retrospective. The project of the present assessee commenced on 17/07/2003. The assessee applied for completion certificate on 06/07/2005 as is evident from cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption and not in the nature of charging. Sub-section (10) mentions that a housing project should be complete before 31.03.2008 so as to get the exemption. Completion of housing project is a physical act. It can be demonstrated on the spot and also through a certificate issued by an architect who is appointed for supervising the construction work. He is a professional who would declare that the project is complete. Unfortunately, Sub-section (10) and the explanation do not give any importance to the issuance of such Completion Certificate by the concerned architect. It gives importance only to the certificate of Municipal authority. It is common knowledge that an application for Completion Certificate submitted to the Municipal Authorities is accompanied by a Completion Certificate issued by the concerned architect. No doubt, the Municipal authorities then cause inspection of the site and verify the claim. Thereafter, they issue Completion Certificate. But, if a project is really complete before 31.03.2008 and an application is moved quite in time, for seeking Completion Certificate from the Municipal authorities, and if they do not take steps urgently and delay the issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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