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TMI Blog2022 (1) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee is accordingly dismissed. - MA No.155/DEL/2021 (Arising out of ITA No.2482/DEL/2011) - - - Dated:- 7-1-2022 - Shri R.K. Panda, Accountant Member And Ms. Suchitra Kamble, Judicial Member For the Assessee : Sh. Ajay Vohra, Sr. Adv. For the Revenue : Sh. Gaurav Pundir, Sr. DR ORDER PER R.K. PANDA, AM, The assessee, through this Miscellaneous Application, has requested the Tribunal to rectify certain mistakes that have crept in the order of the Tribunal. 2. The ld. Counsel for the assessee drew the attention of the Bench to the contents of the Miscellaneous Application which reads as under:- Re: Miscellaneous Application under Section 254(2) of the Income Tax Act, 1961( the Act ) for rectification of mistakes apparent from the record in Order dated 19.07.2021 passed in ITA No(s). 2481 and 2482/Del/2011 for AY 2005-06 and 2006-07). In connection with the captioned matter, it is respectfully submitted as under: The impugned order dated 19.07.2021 was passed by the Hon ble Tribunal, disposing off the appeals filed by the Department for assessment years 2005- 06 and 2006-07 (ITA Nos. 2481 and 2482/Del/2011) along with Cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction works due to non-employment of capital and labour therefore. The aforesaid order passed by the assessing officer was overturned by the CIT(A) vide order dated 25.02.2011 wherein the deduction claimed under section 80IB(10) of the Act was allowed, inter alia, on the ground that conditions mentioned in (i) and (ii) above were not in existence on the date when the approval was granted by the Development authority and therefore, the said conditions could not be made applicable to the projects which were approved prior to 01.04.2005. On further appeal filed by the Revenue, the applicant / assessee filed, out of abundant caution, application for admission of additional evidence in terms of Rule 29 of the Income tax (Appellate Tribunal) Rules, 1963 ( the Rules ) by way of: a. Letter from M/s Sahara India Commercial Corporation Ltd to the applicant dated 14/03/2008 [Pg 5 of additional evidence compilation] b. Letter from the applicant to M/s Sahara India Commercial Corporation Ltd dated 18/03/2008 [Pg 6 of additional evidence compilation] c. Architect certificate dated 15/09/2.009 along with the official translation [Pg 7 and 8 of additional evidence compi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by local Authority as prescribed under Second Explanation to sub-clause (3) of subsection (10) of Section 80-IB of the Act cannot be accepted. However, if the contention of the revenue that the completion certificate referred to under sub-clause (3) of Sub-Section (10) of Section of 80-IB of the Act is to be accepted, then, in that event, Authorities under the Act cannot insist for a completion certificate to be issued by the Municipal Corporation, when, in fact the said certificate contemplated under the KMC Act and the Building Bye-laws is to be issued by registered architect/engineer/supervisor (emphasis supplied) Copy of the Apex Court decision was separately emailed to the Hon ble Tribunal under cover of mail dated 09.03.2021. Copy of the email is enclosed as Annexure 2. It was accordingly submitted that objection (ii) raised by the Revenue to deny the claim of deduction under section 80IB(10) of the Act was not merited, considering that - - the amended provision for issuance of completion certificate for availing benefit of section 80IB(10) of the Act was not applicable for projects approved before 01.04.2005, in view of the judicial precedents cited, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, not necessary to remand the issue to the assessing officer for consideration of the additional evidences, which were, in any case, furnished before the Hon ble Tribunal out of abundant caution to buttress the case of the applicant. In view of the above, the conclusion reached by the Hon ble Tribunal in para 25 of the impugned order, holding that since the additional evidences filed were not on record before the lower authorities, the issue should be remanded back to the assessing officer, runs contrary to the law declared by the jurisdictional High Court and the decisions of the co- ordinate Benches of Tribunal holding that the condition of obtaining completion certificate on or before 31.03.2008 was not applicable to projects approved before 01.04.2005. The same, therefore, constitutes mistake apparent from record which needs to be rectified under section 254(2) of the Act by modifying the said para 25 of the appellate order to uphold the order of the CIT(A) and reject the denial of deduction of deduction under section 80IB(10) of the Act on the said ground; alternatively, recalling the impugned order dated 19.07.2021 to the limited extent of dealing with the afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal) Rules 1963 and deem it proper to restore the issue relating to completion of the project prior to 31st March, 2008 to the file of the AO for adjudication of this issue i.e., completion of the project prior to 31st March, 2008. The AO shall examine the documents and any other details that he may require and decide the issue as per fact and law after giving due opportunity of being heard to the assessee. 6. From the above, it is clear that in view of the additional evidences filed by the assessee which were never produced before the lower authorities and were filed for the first time before the Tribunal, therefore, the additional evidences were admitted and the issue was restored to the file of the Assessing Officer to examine the documents and allow the deduction as per law after verification of the completion of the project prior to 31st March, 2008. It is clearly and categorically stated that the Assessing Officer shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. Therefore, in our opinion, the apprehension of the ld. Counsel for the assessee that the Assessing Officer may not decide the issue as per law is with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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