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2018 (10) TMI 1945 - AT - Income TaxDeduction u/s 80IB (10) - Denial of deduction as assessee did not meet one of the most critical condition i.e. completion of the project within five years as per section 80IB(10)(a)(iii) - HELD THAT:- As competent authority did not reject the application of the assessee seeking completion certificate but pointed out some deficiencies, which were required to be eliminated or cured before the authority grants permission to live in the building constructed by the assessee. Therefore, adverse view taken by the AO on the basis of said letter is not correct and justified as the deficiencies pointed by the competent authority were with regard to unauthorized construction of COP; putting instruction board for entrance and exit way, car parking, visitors parking, scooter parking etc; for making provision for percolated borewell and signature of site supervisor in Form- 8 of living application/permission to live application and no deficiency has been pointed out in tower 2, 5 & 7 and therefore, even in existence of above noted deficiencies, which are rectifiable and curable, it cannot be denied that the building was completed on 17.03.2012 and application for issuance of completion certificate was submitted on 23.03.2012. Unauthorized/additional construction and was not regarding noncompliance of building and this deficiency does not establish in any manner that the building was not completed on the date of application i.e., 23.03.2012 and thus, we safely presume that some addition construction was made in contravention or beyond the scope of construction permission, which was required to be removed and it cannot be interpretated as an allegation of incomplete construction. The Gujarat Development and Construction Rules (GDCR) provides certain other requirement to be fulfilled before issuance of building completion certification such as certificates of competent technical expert/authority regarding the structural stability, completion of building under stipulated supervision, existence of certain facilities such as lift, provision of proper marked parking, lift and fire safety, and certain other provisions for environmental protection in the form of tree planation and rain water harvesting and as we have noted above, the assessee along with application seeking building completion certificate filed certificates/letters showing above mandatory compliances. Lack of marking of entrance & exit way, visitors parking, car parking and scooter parking etc. which are required to be completed by way of putting some marking boards and the same is not substantially related to the deficiency in the construction of building but the same are related with the lack of indication/marking boards/displays. It is not a case of the AO that the assessee did not provide entrance & exit way and parking places for residents & visitors therefore, in absence of certain indication or marking boards, it cannot be hold that the building was not completed on the date of application seeking certificate of construction as on 23.03.2012. Provision for percolated borewell is concerned, this is also relating to rain water harvesting system as the SMC Inspector reported that the water flow to borewell was not ok, which shows that the construction was percolated borewell, as required by the GDCR was made but the flow of water was not up to required mark and this deficiency does not establish that the building was not completed but only shows that the water flow in the percolated borewell was not proper functioning and the same was not up to required standard or mark. In our considered opinion on the basis of said deficiency also it cannot be presumed that the building was not completed on the date of application as on 23.03.2012. Missing signature of Supervision of Form No.8 and the ld. CIT(A) noted that the copy of Form- 8 dated 17.03.2012 was signed by the owner of project and structural Engineer Shri Jalil A sheikh, which certifies that the building has been constructed according to sanctioned plan, and structural design under supervision of qualified engineer. In our considered opinion, this deficiency is not attributable to the allegation of the AO regarding incompleteness in the building but the same was merely related to a deficiency in the papers submitted along with application seeking building completion certificate and this shortcoming does not establish that the construction of tower No.2, 5 & 7 was not completed as on 17.03.2012 and on 23.03.2012 i.e., the date on which said application was submitted before the competent authority of SMC. We are inclined to hold that the ld. First appellate authority was right in concluding and holding that the BUC has been granted by the competent authority of SMC on the basis of completion certificates of March, 2012 on the basis of supporting evidences filed by the assessee establishing and showing completion of building viz. completion certificate of Govt. approved Charted Engineer, stability certification of Structure Engineer, license to use the lift certificate & existence of required fire fighting equipments and possession letter issued to the allottees and the construction of project including tower no. 2, 5 & 7 was completed on 17.03.2012 and application seeking building completion certificate before the competent authority in the prescribed form along with supporting documents and certificates was filed before the competent authority/Asst. Engineer of SMC on 23.03.2012 i.e., before the required date i.e., 31.03.2012, which supports the factum that the project qualifies the conditions for eligibility of deduction u/s. 80-IB(10) of the Act. Thus we reach to a logical conclusion that the ld. CIT(A) was right in allowing claim of the assessee for deduction u/s. 80IB(10) - Decided in favour of assessee.
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