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TMI Blog2024 (12) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1961 (hereinafter referred to as "the Act"). The case was selected for scrutiny and accordingly, statutory notices u/s 143(2) and 142(1) of the Act were issued and served on the assessee, in response to which the AR of the assessee appeared before the Assessing Officer from time to time and filed the requisite details. 3. During the course of assessment proceedings the Assessing Officer noted that the construction of first phase of residential portion around 20 lac sq. ft. in four sectors named as R-2, R-4, R-5 and R-22 was started in 2007-08. He noted that Sector R-4, R-5 and R-22 are claimed as eligible for deduction u/s 80IB(10) of the Act and Sector R-2 is non 80IB(10) of the Act in progress in the year under assessment and booking was also in progress for these sectors of residential projects. 4. In order to verify the eligibility of the project of the assessee to claim deduction u/s 80IB(10) of the Act, he issued a Commission u/s 133(1)(d) of the Act to Mr. Nitin Lele, Govt. Registered Valuer, who submitted his report on 19.03.2014. The Assessing Officer provided a copy of the same to the assessee and asked the assessee to justify the claim of deduction u/s 80IB(10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was issued on 06/02/2015. There is no dispute on the date of issuance of completion certificate as well. 16. The appellant has contended that as per the certificate given by the architect project R-5 was completed on 15/08/2010 and on the basis of this certificate, it made an application for issue of completion certificate on 06/07/2012 with the Collectorate, Pune. A copy of said application made on 06/07/2012 has also been filed by the appellant. The appellant has contended that once it has filed an application for issuance of completion certificate with the government authorities, it has little control over the date of issuance of completion certificate as the government authorities take their own time in issuing the completion certificate The appellant has claimed that since the copy of Architect certificate was submitted to the Assessing Officer as well as to the government valuer, it should be considered that the project was completed before the stipulated date of 31/03/2013 The appellant has also contended that similar issue has been dealt by jurisdictional ITAT Pune bench wherein it has been held that once the application for issuance of Completion Certificate has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )/(2005) 4 SCC 272 in which it was held that the principle that in the event a provision of fiscal statute is obscure such construction which favours the assessee may be adopted, and held in the Constitution Bench judgment that such principle would have no application to construction of an exemption notification. It went on to hold that in such a case it is for the assessee to show that he comes within the purview of exemption After considering the issue in detail the Bench held that exemption notification should be interpreted strictly and "the burden of proving the applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification It further held that When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed extended to the subject/assessee and it must be interpreted in favour of the Revenue". Going with the ratio decidendi of this Constitution Bench judgment, it is manifested that the assessee has to strictly satisfy the conditions as given in the section for availing the deduction and in case of any doubt or ambiguity, the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of intimation by the assessee will disqualify to be the date of completion of construction. In such a panorama, the assessee will have to make good the deficiencies and again intimate the completion. The crux is that when the authority, on final intimation from the assessee in writing about the completion of construction, finds the construction as having been actually completed, the date of issuance of the completion certificate shall be construed as the date on which the assessee finally intimated the factum of completion of construction. 18. Thus, the ratio of the above decision of Hon. Jurisdictional Tribunal is that merely filing an application with the government authority cannot be considered as the date of issuance of completion certificate because after receiving the application, the local authority may find certain deficiencies in the claim of the assessee regarding the completion of project and may ask the assessee to remove these deficiencies. The Hon. Pune Tribunal has held that only when the local authority after receiving the final intimation about the completion of construction finds that the construction has been actually completed, the date of such final intima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in the grounds of appeal relates to violation of section 80IB(10)(e) and 80IB(10)(f) of the Act as pointed out by the Registered valuer and claim of pro-rata deduction u/s 80IB(10) of the Act. Since, it has been held that the appellant is not eligible for deduction u/s 80IB(10) of the Act, this issue becomes of academic nature and is not being adjudicated upon 30. To sum-up, the action of the assessing officer of disallowing the claim of deduction u/s 80IB(10) amounting to Rs. 1,02,32,288/- is upheld. The appeal for AY 2011-12 is DISMISSED." 6. Aggrieved with such order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds: The Appellant would like to object to the impugned appellate order on the following grounds of appeal, which are raised without prejudice to each other on the facts and in law Ground No 1 1. The Learned Commissioner of Income Tax (Appeal) has erred in confirming disallowance of deduction u/s 80IB (10) of Income Tax Act, 1961 of Rs. 1,02,32,288/-. Ground No 2 2. The Learned Commissioner of Income Tax (Appeal) has erred in wrongly Interpreting the provisions of section 80 IB (10) (c) and thereby re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer on account of non submission of the completion certificate, however, he has not adjudicated the issue regarding the disallowance in terms of section 80IB(10)(e) and 80IB(10)(f) of the Act. On a pointed query by the Bench as to whether the application dated 06.07.2012 for project R-5, application dated 26.06.2012 for project R-22 and application dated 04.07.2012 for R-4 were filed before the Assessing Officer or not, the Ld. Counsel for the assessee fairly conceded that these are all additional evidences and were not filed before the lower authorities. Referring to the application filed before the Tribunal for acceptance of the additional evidences under rule 29 of Income Tax Appellate Tribunal Rules, 1963, he submitted that these additional evidences go to the root of the matter and should be admitted for adjudication. 8. So far as the project R-5 is concerned, referring to pages 105 to 107 of the paper book-1, the Ld. Counsel for the assessee submitted that the Architect Kakati and Associates have issued a Certificate giving details of the entire project, date of commencement and date of completion which is 15.08.2010. Referring to page 81 of the paper book-1, he drew the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015 and submitted that in this certificate completion in respect of Tower 25 consisting of 336 flats has been given. He accordingly submitted that the inference drawn by the Ld. CIT(A) that the completion certificate dated 06.02.2015 is also issued only for these two towers which means that the Collector, Pune is not satisfied about the claim for Tower 25 is incorrect and legally not justified. Referring to pages 108 to 110 of the paper book-1, he drew the attention of the Bench to the certificate given by the Architect about the date of commencement and date of completion which is 15.03.2011. Referring to page 89 of the paper book-1, he submitted that the same is the application dated 26.06.2012 made by the assessee to the Collector for issue of completion certificate. Referring to pages 127 to 131 of the paper book-1 which is the Valuation Report of the registered valuer Mr. Nitin Lele, he submitted that in the valuation report it is mentioned that "No completion certificate acquired however buildings are complete and occupied. Architect have issued the completion certificate". He accordingly submitted that the order of the Ld. CIT(A) holding that no documentary evidence has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23) 147 taxmann.com 53 (Pune-Trib.) relied on by the Ld. CIT(A) is concerned, he submitted that the same is not applicable to the facts of the present case since in that case the applications were filed after the specified date whereas the assessee in the instant case has filed all the relevant details in the office of the Collector, Pune before the cutoff date. Therefore, the said decision is not applicable to the facts of the present case. The Ld. Counsel for the assessee filed the following table: Project Architect Certificate Application for Completion Certificate / Occupancy Certificate to Collector, Pune Completion Certificate / Occupancy Certificate date Commencement date Completion date R5 20.12.2007 15.08.2010 06.07.2012 06.02.2015 R22 20.12.2007 15.03.2011 26.06.2012 06.02.2015 R4 16.01.2008 15.03.2011 04.07.2012 15.10.2016 14. He further submitted that the issue of claim of deduction u/s 80IB(10) of the Act in respect of projects R-5, R-22 and R-4 are covered in favour of the assessee by the following decisions: 1. M/s. City Development Corporation vs. Addl.CIT vide ITA Nos.1489/PN/2009 and 1100/PN/2010, order dated 22.09.2012 2. M/s Gera De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 04.07.2012 for project R-4 and application dated 06.07.2012 for project R-5. He submitted that the assessee has fulfilled all the conditions. So far as the denial of deduction by the Assessing Officer on account of violation of the provisions of section 80IB(10)(e) and 80IB(10)(f) of the Act are concerned, he submitted that the Act was amended w.e.f. 01.04.2010 and accordingly applicable from assessment year 2010-11 onwards and therefore, the same is not applicable, being prospective in nature. He accordingly submitted that the grounds raised by the assessee should be allowed. 17. We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and Ld. CIT(A) and the paper book filed on behalf of both sides. We have also considered the various decisions cited before us by both sides. We find the Assessing Officer in the instant case denied the claim of deduction u/s 80IB(10) of the Act made by the assessee on the ground that (a) completion certificate issued by the local authority in respect of all the three projects are after the statutory deadline i.e. 31.03.2013 and (b) certain flats in the projects were sold to the same buyers in violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 19. So far as the decision relied on by the Ld. CIT(A) in the case of ACIT vs Vijay Tukaram Raundal (supra) is concerned, in our opinion, the same is distinguishable and not applicable to the facts of the present case. In that case, undisputedly, the project was completed well beyond the prescribed time whereas in the instant case, the project was completed before the specified date but the completion certificate was issued after the specified date. Therefore, the said decision in our opinion, is not applicable to the facts of the present case. 20. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer 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 earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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