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TMI Blog2017 (12) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... t owners nor the District Collector-cum-Asst. Director, Town Planning have any complaints on the issue of date of completion of the Housing Project. The flat buyers have already occupied the flats (copies of possession letters are placed in the paper book) without having any illegalities associated with the project qua the construction of the project are on records of the local authority or the District Collector. In these circumstances, we are of the opinion that these papers/additional evidences filed by the assessee before us are required to be admitted as the same are obtained by the assessee in the period subsequent in time under the Right to Information Act, 2005. Therefore, considering the principles of natural justice, we are of the opinion that these papers should be remanded to the file of the AO for considering the same and decide the issue based on the facts relating to the issue of completion certificate. AO shall grant reasonable opportunity of being heard to the assessee in accordance with set principles of natural justice - ITA Nos. 224 And 225/PUN/2014 - - - Dated:- 13-12-2017 - SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the business of purchase and sale of land and construction activity. Assessee filed the return of income on 31-10-2009 declaring total income of ₹ 1,01,49,170/-. The assessed income was determined u/s.143(3) of the Act at ₹ 2,41,08,930/-. During the course of assessment proceedings, allowability of deduction u/s.80IB(10) in respect of the profits derived from a housing project named Kirti Elegant at Mahalunge village, Mulshi Taluka, District, Pune. This project is located outside the municipal limits of Pune. The project is located in a Panchayat limits and therefore, the same was approved by the Collector, Pune vide the commencement letter dated 06-07-2005. As per the assessee, the project was completed by 31-03-2011 and the completion certificate of the Architect filed with the office of the Collector is relied. These authorities did not issue any certificate to the assessee. Therefore, there is a problem for the assessee in producing the requisite completion certificate from a local authority (LA) as required under the statute u/s.80IB(10) of the Act. During the assessment proceedings and in response to the show cause notice of the AO, the assessee submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IB(10) is held to be not allowable for both the years, i.e. A.Y. 2009-10 and A.Y. 2010-11. Ground of appeal No.1 raised by the assessee is dismissed for both the years under consideration. 5. Aggrieved with the above decision of the CIT(A) for both the assessment years, the assessee filed the present appeals before the Tribunal with the grounds extracted above. 6. The core issue raised in the grounds as can be seen in them, relates to correctness of disallowing the claim of deduction when there is a no system with the village local authority for issuing the completion certificate in respect of the projects located within their panchayat limits. In this regard, Ld. Counsel for the assessee filed various details about the project and other evidences in respect of the claim of completion of the project, sale of the units and possession by the flat buyers etc. He also brought our attention to the completion certificate issued by the Architect of the project and furnishing of the same to the Collector, Pune, Town Planning authorities, Village authorities etc., He also brought to our notice various judicial pronouncements in support of claim of the assessee. Finally, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are important and relevant to decide the appeals. 5. The appellant requests that in the interest of justice, the subject documents may kindly be admitted as additional evidence and considered while deciding the appeals. 8. During the proceedings, Shri Sunil Pathak, Ld. Counsel for the assessee brought our attention to the correspondence, the assessee had taken with the Collector, Pune, Town Planner etc. and informed that certain papers were obtained under the Right to Information Act, 2005 from the State Government authorities with regard to the completion certificate. Bringing our attention to these additional evidences, he submitted that the Gram Panchayat did not have right to grant completion certificate (Page No.1 of the paper book). He also submitted that the said Gram Panchayat, Mahalunge Village has never issued any completion certificate during the period from 01-04-2005 to 31-03-2010. Referring to Page No.3 of the paper book, Ld. Counsel for the assessee submitted that the commencement certificate was issued by the Collector vide letter dated 06-07-2005 and 26-03-2007. Copy of the application seeking completion certificate from the Gram Panchayat is also enclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such documents for issuing such completion certificates and the same is evident from the replies received from the said Assistant, Director, Town Planning, Pune by the assessee. The request letters for completion certificates were found forwarded to the Collector office who merely ignores the correspondence without saying Yes or No to the request of the assessee. 12. We heard both the parties on the limited issue of issuance of completion certificate by the local authority (LA) and the fate of the assessee s application for completion certificate addressed to the Assistant Director, Town Planning or/and to the Office of the District Collector, Pune. The statute is very clear that the LA/Village Gram Panchayat is entitled to issue such certificate and the same is authenticated by the order of the Tribunal in the case of M/s. Satish Bora and Associates Vs. ACIT in ITA Nos. 713 and 714/PN/2010 for A.Yrs. 2004-05 and 2005-06, order dated 07-01-2011. As per the correspondence of the assessee with the District Collector, Pune, it has gone on record of the District Collector that it is the Assistant Director, Town Planning, Pune who is authorized to issue the completion certificate in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es the following : 80IB(10) . . . . . Explanation For the purposes of this clause :- (i) . . . . . . . (ii) The date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority... The above provision is categorical in specifying the local authority as the issuing authority of the completion certificate in respect of a housing project. Whereas, in the instant case, the direction of the District Collector vide item No.17 (supra) to the assessee includes the Assistant Director, Town Planning, Pune shall issue the requisite completion certificate. This direction is not in tune with the said provisions of the Act. The decision of the Tribunal in the case of M/s. Satish Bora and Associates Vs. ACIT (supra) affirms the same. Therefore, there is requirement of bringing the direction of the District Collector in tune with the above provisions of the Income-tax Act. Unless necessary corrections are made in the procedures, the tax payers will continue to suffer due to the procedural hardships. Hence, Principal CIT/AO may consider tak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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