TMI Blog2024 (12) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... ate were filed in the shape of additional evidences only and the same were not produced before the Assessing Officer during the course of assessment proceedings. Although it was stated before the Ld. CIT(A), however, there was no occasion on the part of the Ld. CIT(A) also to verify the same. We deem it proper to restore the issue to the file of the AO with a direction to call for information from the office of the Collector, Pune i.e. the competent authority to find out as to whether the assessee has applied for completion certificate / occupancy certificate before the specified date or not and if so, whether there is any variation in the application filed earlier and subsequently on 30.08.2014. AO may also find out the reasons for the delay in issue of completion certificate i.e. as to whether there was any lapse on the part of the assessee in fulfilling the conditions prescribed for making the application for occupancy certificate. AO shall also decide the prorata deduction and the violation of provisions of section 80IB(10)(e) of the Act afresh - Assessee ground allowed for statistical purposes. - Shri R. K. Panda, Vice President And Shri Vinay Bhamore, Judicial Member For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ojects, the Assessing Officer held that the assessee has not completed the project before the specified date i.e. 31.03.2013 and therefore, the assessee is not entitled to the deduction u/s 80IB(10) of the Act. While doing so, he further noted that the Valuer in his report has stated that the assessee has sold more than one flat to the same family and therefore, has violated the provisions of section 80IB(10)(c) of the Act. He also rejected the claim of prorata deduction for eligible units. He accordingly, disallowed the claim of deduction of Rs. 1,02,32,288/-. 5. Before the Ld. CIT(A), the assessee filed certain additional evidences and requested the Ld. CIT(A) to accept the same. The Ld. CIT(A) forwarded those additional evidences to the Assessing Officer and called for a remand report from him. After considering the contents of the remand report and the rejoinder of the assessee to such remand report from the Assessing Officer, the Ld. CIT(A) upheld the action of the Assessing Officer by observing as under: 14. As discussed above, the appellant has claimed deduction u/s 80IB(10) for three projects which have been named as R-4, R-5 and R-22. Since, these three projects are separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions- M/s City Development Corporation ITA No. 1489/PUN/2009 and 1100/PUN/2010 (Pune Tribunal) dated 22/09/2012 M/s Gera Development Pvt. Ltd. ITA No. 768/PUN/2013 for A.Y. 2009-10 (Pune Tribunal) dated 31/12/2014. M/s Satish Bora Associates ITA No. 713 and 714/PUN/2010 A.Y. 2004- 05 and 2005-06 (Pune Tribunal) dated 07/01/2011. 17. In this connection, it may be stated that the issue of 'date of completion of residential project for the purposes of sec. 80IB(10)(a) has been discussed in detail by the jurisdictional ITAT in its latest decision in the case of ACIT vs Vijay Tukaram Raundal (2023) 147 taxmann.com 53 (Pune Tribunal) wherein the Hon. ITAT, Pune bench after following the decision of Constitutional Bench of Hon Supreme Court in the case of Commissioner of Customs (Import) v. Dilip Kumar and Co. [2018] 95 taxmann.com 327/69 GST 239/361 ELT 577/[2018] 9 SCC 1 has held that the assessee has to strictly satisfy the conditions as prescribed in the section 80IB(10) and in case of any doubt or ambiguity, the benefit of interpretation has to be given in favour of the Revenue. The relevant portion of the said decisions of Hon. Pune Tribunal is as under- 16. At this juncture, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub-clause) says- Within five years from the end of the financial year in which the housing project is approved by the local authority. This provision talks of completing the construction by such and such time Explanation (2) under section 80IB(10)(a) provides that the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate an respect of such housing project is issued by the local authority. We need to appreciate the logic behind the date of completion of construction de hors the Explanation and as definition wrt the issuance of completion certificate as per the Explanation. As there is an eligibility condition of completing the construction within a period of five years for getting the deduction, the legislature thought it prudent to thwart any attempt by the builders who erringly intimate the completion without actually completing it. With this object in mind the Parliament qualified the date of completion as the date of issuance of completion certificate. Though as per the strict language of section 80IB(10), the date of completion of construction of the housing project is the date on which the completion cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector. Pune only on 06/02/2015 and the said certificate was issued in connection with the application made by the appellant on 30/08/2014 (as mentioned in the said completion certificate). It is also mentioned in the said completion certificate that the spot verification of the project was carried out by the authorities on 10/09/2014. Thus, the completion certificate dated 06/02/2015 clearly suggests that the final Intimation about the completion of project namely R-5 was given by the appellant to the Collector Pune only on 30/08/2014. Accordingly, following the decision of Hon. ITAT, Pune bench in the case of Vijay Tukaram Raundal (supra), the date of completion of project for the purpose of sec. 80IB(10) is required to be taken as 30/08/2014. 20. There is no dispute regarding the date on which the project was first approved and as per the appellant, the project R-5 was first approved on 20/12/2007 Therefore, as per the provisions of sec. 80IB(10)(a)(iii) of the Act, the project was required to be completed before 31/03/2013. Since, the project R-5 was not completed within the stipulated time therefore it is held that the appellant is not eligible for deduction u/s 80IB(10) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate issued by the local authority and not appreciating the facts and legal position: - a) that the Construction of the project is completed and b) tenements were handed over before due date to customers and they are staying in said apartments c) Application for completion is made by assessee company to Town Planning Department And thereby denying the deduction to assessee firm u/s 80IB (10) of Income Tax Act, 1961. Ground No 3 5. Without prejudice to above Commissioner of Income Tax (Appeal) has erred on facts and in law in not allowing a pro-rata claim of section 80IB (10) with reference to the area constructed in housing project and eligible as per his opinion and interpretation of section. Ground No 4 6. The appellant prays for admission of Additional grounds/ Additional evidence if any required to support its case. 7. The appellant craves leave to amend or alter any of the ground or grounds of appeal or add to the same, if deemed necessary. 7. The Ld. Counsel for the assessee strongly challenged the order of the Ld. CIT(A) in confirming the action of the Assessing Officer in denying the claim of deduction u/s 80IB(10) of the Act. He submitted that the Assessing Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Town Planning Authority dated 06.02.2015 and that even the date of application mentioned is 30.08.2014 as per page 81 of the paper book-1, it is clearly evident that this application is made on 06.07.2012. Therefore, the inference drawn by the Ld. CIT(A) that the assessee has made application before the appropriate authorities after 31.03.2013 is incorrect and the date of completion as per the Architect is 15.08.2010. Referring to Rules No.7.6 and 7.7 of the DC Rules of PMC, he drew the attention of the Bench to the same and submitted that these are in respect of completion certificate and occupancy certificate. Referring to pages 114 and 115 of the paper book-1 and English translation of the same at pages 23 to 25 of the paper book-2, he submitted that it is categorically stated that the proper authority has verified 240 units and mentioned that all the buildings are completed as per approved commencement certificate. He submitted that the inference drawn by the lower authorities is legally not justified and therefore, the claim of deduction u/s 80IB(10) of the Act in respect of R-5 is not justified. 9. So far as the project R-22 is concerned, he submitted that the partial complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or, Pune either before the Assessing Officer or before him. Referring to pages 120 and 121 of the paper book-1 and the English translation of the same at pages 31 to 34 of the paper book-2, he drew the attention of the Bench to the occupancy certificate dated 15.10.2016 in respect of Tower No.15, 16, and 17 consisting of 70 flats each (i.e. total 210 flats). Referring to page 101 of the paper book-1, he drew the attention of the Bench to the same and submitted that this is an application made to the Collector, Pune on 04.07.2012 for issue of occupancy certificate. Referring to Rules No.7.6 and 7.7 of the DC Rules of PMC, he submitted that occupancy certificate is issued by the appropriate authority only on receipt of completion certificate. Referring to page 138 of the paper book-1, he drew the attention of the Bench to the same which is the valuation report of the Registered Valuer Mr. Nitin Lele, wherein he has reported in respect of project R-4 that no completion certificate acquired however buildings are complete and possessed. Therefore, the inference drawn by the Ld. CIT(A) that the assessee has not filed any evidences in respect of the completion of the project from the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Tax-5 V. G.K. Developers (2024) TaxCorp (DT) 92998 (HC-Bombay) 7. CIT v. Tarnetar Corporation (2014) 362 ITR 174 (Guj.)(HC) (362 ITR 174) 8. The Commissioner of Income Tax -I Versus M/s. Abad Constructions Pvt. Ltd. (2014) 8 TaxCorp (DT) 56998 (Kerala) 9. Commissioner of Income-tax v. Hindustan Samuh Awas Ltd. (2015) 377 ITR 150 (HC- Bombay) 10. Principal Commissioner of Income Tax-1 Vs M/s Ashtavinayak Developers TaxCorp (DT) 79108 (HC-Bombay) (2019) 15. The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the Ld. CIT(A). He submitted that the Ld. CIT(A) has categorically given a finding that the completion certificate in respect of project R-22 was given by the Collector, Pune dated 06.02.2015 on the basis of the application filed by the assessee on 30.08.2014. Similarly, in respect of project R-5, the Collector had given the completion certificate on 06.02.2015 on the basis of an application dated 30.08.2014. Thus, the applications for issue of completion certificates were made after the cutoff date and therefore, the assessee has violated the conditions prescribed in section 80IB(10) of the Act. So far as the violation of the provisions of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to the cut off date of 31.03.2013. It is his argument that the application for the project R-5 was made on 06.07.2012 (page 81 of paper book), for R-22 was on 26.06.2012 (page 89 of paper book) and for Rs-4 was on 04.07.2012 (page 101 of paper book). It is also his submission that the assessee has no control over the Collector, Pune for issue of completion certificate. According to him, after multiple applications, the Collector, Pune has issued the completion certificate / occupancy certificate on the basis of last application dated 30.08.2014. He submitted that there is no change in the contents of the application and at best it can be said that it is a kind of reminder only. It is also his submission that there is no violation on the part of the assessee regarding completion of the project. 18. In our opinion, if the assessee completes the project in all respects and makes necessary applications before the competent authority on or before the specified date and on receipt of such applications, the competent authority sits over the applications, then the assessee cannot be faulted with. In our opinion, if the competent authority gives the completion certificate / occupancy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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