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2022 (1) TMI 34 - ITAT NAGPURDisallowance made u/s 80IB - Claim of the assessee was rejected by the A.O. on two reasons as return filled beyond due date of filing of return of income and assessee failed to submit the completion certificate - HELD THAT:- Although there was delay of 27 days on the part of assessee for filing the return of income but audit report was filed by the assessee in time and this fact has not been disputed by the ld. DR. We have further noticed that delayed filing of return of income was within the time limit prescribed u/s 139(4) of the Act which according to us is a sufficient compliance for the purpose of Section 80AC of the Act - See case of Trustee of Tulsidas Gopalji Charitable and Chaleshwar Temple Trust [1993 (9) TMI 75 - BOMBAY HIGH COURT]. The submission of return within time as specified under sub-section (4) of Section 139 has to be taken as sufficient compliance in the provisions of the Act as it was expounded that sub-section (1) and sub-section (4) of Section 139 have to be read together. Thus, keeping in view the above settled provisions of law, we reach to an inevitable conclusion that the return of income so filed by the assessee in the present case within the time specified in sub-section (4) of Section 139 of the Act has to be considered as filed within the time prescribed in sub-section (1) of Section 139 of the Act. Thus, on this ground, no disallowance U/s 80IB of the Act was warranted. Thus, the assessee succeeds on this account. Non-submissions of completion certificate - We found from the record that the approval of the construction of the said project was granted in favour of the assessee on 31/01/2006 i.e. in A.Y. 2006-07 and thus, in this way, the construction ought to have been completed till A.Y. 2011-12. Since the assessee could not place on record the completion certificate, therefore, in absence of the said completion certificate, the claim of the assessee was denied u/s 80IB We found that the ld. CIT(A) under the identical facts and circumstances on the basis of completion certificate of the architect and other circumstantial evidences, allowed the appeal of the assessee by relying upon the decision of case of New High Rise Construction 2017 (3) TMI 1329 - ITAT NAGPUR]. Thus, in our view, as far as the completion of projection is concerned, the issue is no more resintgra as the Revenue in the subsequent assessment year have thus admitted that the project of the assessee in question was completed in 2011 and the assessee had complied with all the conditions of Section 80IB. Thus, considering the totality of facts and circumstances of the case, we restore this issue back to the file of the A.O. with direction to consider architect’s certificate and other circumstantial and indirect evidences put forth by the assessee and in case, the assessee fulfills the conditions as laid down by the Coordinate Bench of the Tribunal in the case of New High Rise Construction Vs. ITO (supra) then the A.O. is directed to allow deduction U/s 80IB(10) of the Act. We direct accordingly.
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