TMI Blog2013 (1) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... MC took only 14 months to issue the certificate and if there are any deviations from the approved plans by the assessee. One must examine, if the relevant Municipal Laws / Rules / Guidelines specify any time limitation for processing the certificate filed by the Architect / Structural Engineer as the case may be and issue of the final completion certificate. AO must also examine, if there is any provision in local laws for deemed acceptance of the Completion Certificate filed by the Structural Engineer of the project in local laws. All these issue requires the explanation of the assessee with the supportive evidence of law rules. The minor deviation if any ought not to disentitle the assessee for availing deduction. For fresh adjudication remand back to AO - ITA Nos.103/HYD/2012 and 262/Hyd/2011 - - - Dated:- 30-10-2012 - Asha Vijayaraghavan and D. Karunakara Rao, JJ. Appellants Rep by: Shri Ganapathi Sharma and Shri Paul D J Ratnam Respondent Rep by: Smt Amisha S Gupt ORDER Per: Asha Vijayaraghavan: Both these appeals filed by the assessee are directed against the respective orders of CIT(A)-IV, Hyderabad for the assessment years 2007-08 and 2008-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evised Building rules, 2006. The AR submitted that since the issue of Occupancy Certificate was being delayed, the assessee approached the Local Authority vide letter dated 19/03/2009, informing that the construction had been completed and possession had also been given to all the flat owners and property tax had been completed in most cases, and therefore a completion certificate may be provided for the purpose of IT Act, 1961. 5. The AR of the assessee submitted that after considering the completion certificate issued by the Structural Engineer and the Registered Architect, as also the representation of the assessee, the Zonal Commissioner, GHMC West Zone issued a Completion/Occupancy Certificate on 30/11/2009, inter alia confirming that the construction had been completed on 15/09/2008 in all respects and it was fit for occupation'. 6. After considering the submissions of the assessee, the CIT(A) held as follows:- "On going through the facts of the case of the present appellant, however, it is seen that even though the "occupancy Certificate' dated 12/11/2009 or the Completion/Occupancy Certificate' dt. 30/11/2009 submitted by the appellant, make a reference to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B(10)(A) is to be allowed if the undertaking completes the construction of housing project within four years from the end of the financial year in which the housing project is approved by the local authority. For this purpose, the date of completion of construction of 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. In the present case, the assessee has got a certificate from the Municipality well within the time the assessee has completed the construction of the housing project even before 15.9.2008, as is evidenced by the certificate of licensed Architect and Structural Engineer issued on 15.9.08. The assessee has also applied for the issue of necessary certificate to the Zonal Commissioner, West Zone, GHMC, vide letter filed before the Zonal Commissioner on 19.3.09 but the Zonal Commissioner has issued the certificate only on 30.11.09. Thus the delay in obtaining the certificate is not attributable to the assessee at all. 10. The Ld Counsel further submitted that the Supreme Court in the case of K.P.Varghese Vs Income tax Officer and another (131 ITR 597) observed while dealin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment in new machinery or plant, such provisions have to be liberally construed.". The counsel also relied on the Supreme Court decision in the case of CIT vs. Gwalior Rayon Silk Manufacturing Co Ltd (196 ITR 149) wherein it has been called as follows: "It is settled law that the expression used in taxing statute would ordinarily be understood in the sense in which it is harmonious with the object of the statute to effectuate the legislative animation." "Tax laws have to be interpreted reasonably and in consonance with justice adopting a purposive approach. The contextual meaning has to be ascertained and given effect to. A provision for deduction, exemption or relief should be construed reasonably and in favor the assessee". 11. The Ld Counsel relied on the decision in the case of Sanghvi Doshi Enterprise Vs. Income Tax Officer (ITA 259 and 260/M/2010 dt.17.6.2011) and submitted that the facts of the case are almost similar as in the present case and the issue involved is identical. In the case of Sanghvi Doshi Enterprise (supra) the assessment involved was 2005-06 and 2006-07, the project was completed by 13.3.2006. The project was completed by the due date and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame could not be equated with the completion certificate' contemplated under the Act. Also, even the certificates issued by the Municipal approved Structural Engineer or the licensed Architects could not be considered as a substitute for Completion Certificate' contemplated under the Act. 16. The question before us is whether in the absence of any completion certification showing completion of project before 31/03/2009 by the local authority, the assessee is entitled for claim of deduction u/s 80IB(10). In this context we refer to the Departmental Circular No. 5 of 2005 dt. 15/07/2005, emphasize this issue as under: " for this purpose the date of approval shall be the date on which the building plan is first approved by the local authority and the date of completion of the housing project, shall be the date on which the completion certificate is issued by such authority." 17. The local authority in this case is the Zonal Commissioner, West Zone, GHMC, Serlingampally, R.R. Dist., Hyderabad. 18. Further, we find that before the CIT(A), the AR of the assessee had submitted that after considering the completion certificate issued by the Structural Engineer and the Registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / Structural Engineer as the case may be and issue of the final completion certificate. AO must also examine, if there is any provision in local laws for deemed acceptance of the Completion Certificate filed by the Structural Engineer of the project in local laws. All these issue requires the explanation of the assessee with the supportive evidence of law rules. It is the proposition of said decision in the case of Satish Bora (supra) that the minor deviation if any ought not to disentitles the assessee for availing deduction. Thus, this issue requires attention of the AO for fresh adjudication in the light of the said decision of Pune Bench in the case of Satish Bora (supra) with special reference to the local Municipal Laws of Hyderabad Municipal Corporation and the language used in the context of the "Completion Certificate". Accordingly, the issue is set aside. ITA 262/HYD/2011 for assessment year 2007-08 21. As the facts and grounds of appeal raised in this appeal are materially identical to that of AY 2008-09 being ITA No. 103/Hyd/2012 (supra), respectfully following the conclusions drawn therein, we set aside the order of the CIT(A) and restore the issue to the file ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
