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2018 (10) TMI 1881 - AT - Income TaxRevision u/s 263 - assessee was not entitled for deduction u/s.80IB - As assessee failed to fulfill the conditions laid down as per the provisions of the Act in respect of its claim of deduction u/s. 80IB of the Act, the assessment order was erroneous and prejudicial to the interests of Revenue - HELD THAT:- From the certificate issued by the local authority, which is on the subject of amalgamation and amended approved plan of the housing project,. referring to various commencement certificates and amended plan with the earliest date back to 19.11.1998. If the project was approved in the year 1990, here is no question of deduction 80IB(10) and if the project was under taken in the year 1998 whether the said project had been completed within the stipulated four years period. As observed that the construction of the project was not completed within four years from the end of the financial year in which the housing project was first approved - assessee was not eligible to claim deduction u/s 80IB(10). The deduction u/s 80IB(10) is to be allowed if the assessee fulfills at the conditions as laid down in the provisions of the income Tax Act. In the said case the assessee had failed to fulfill the conditions required to claim deduction u/s 80IB{10). However, the Assessing Officer had not examined the said issue and allowed the claim of the said deduction thereby rendering the assessment order to be erroneous & prejudicial to the interest of revenue. Neither the project was approved by the assessee nor any enquiry has been made by the AO as to how the eligibility condition u/s.80IB(10) has been complied with by the assessee who has been given development rights in respect of certain portion of the project approved in the name of M/s. Unitech Limited - out of the deduction claimed, the AO has reduced the amount pertaining to the profit earned on this project in the earlier two years, but no enquiry has been made by the AO as to why in respect of the very same project, profit of earlier years was to be reduced from the profit of eligible project. We also observe that audit report in form No.10CCB filed by the assessee at Column 4(a), the assessee has claimed the project to be fully owned by it, whereas the actual fact is that assessee has no ownership rights in the project. No enquiry has been made by the AO so as to ascertain correctness of the assessee’s claim when the project itself was not approved in the name of assessee and he has only got developmental right in respect of part of the project. It is also not clear as to what is the size of the plot of land on which project has been approved. It is also not clear whether approval was prior to 01/04/2004 or subsequent to it. No infirmity in the order of CIT for invoking provisions of Section 263 holding the order passed by AO was erroneous in so far as prejudicial to the interest of revenue, on the plea that no enquiry having been made by the AO regarding assessee’s eligibility to claim deduction u/s.80IB(10). CIT has passed order also considering the issue raised in the show-cause notice dated 31/01/2012. Accordingly, we upheld the order passed by CIT passed u/s.263 and matter is restored back to the file of AO for making enquiry - Decided against assessee.
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