TMI Blog2010 (7) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue inasmuch as the rightful deduction has been granted u/s. 80-IB(10) when seen in the light of actual date of commencement being after 01.10.1998 - view taken by the learned CIT to revise the order u/s 263 not acceptable – decided in favor of assessee. - IT APPEAL NOS. 3385 & 3386(MUM) OF 2009 - - - Dated:- 2-7-2010 - R.S. SYAL, ACCOUNTANT MEMBER AND V. DURGA RAO, JUDICIAL MEMBER R.C. Jain for the Appellant. Hemant J. Lal for the Respondent. ORDER Per R.S. Syal, AM. These two appeals by the assessee arise out of the order passed by the Commissioner of Income-tax u/s.263 on 24.3.2009 in relation to the assessment years 2005-2006 and 2006-2007. 2. Briefly stated the facts of the case are that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of business and it was for the Assessing Officer to examine in detail all the relevant documents to come to the conclusion regarding the actual date of commencement of business. He, therefore, held both the assessment orders erroneous and prejudicial to the interest of the Revenue. These were set aside and the AO was directed to redo the assessments in accordance with law with regard to the claim u/s.80-IB vis-a-vis date of commencement of business. 3. We have heard the rival submissions and perused the relevant material on record. It is obvious from the impugned order that the deduction in the opinion of the learned CIT was not properly granted by the Assessing Officer for the reason that the development and construction of housi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year 2001-2002 onwards have been placed on record in which such claim for deduction u/s.80-IB has been duly accepted in assessments made u/s 143(3) of the Act. The learned A.R. was fair enough to concede that the assessment orders passed from assessment year 2003-2004 have been subjected to reassessment after passing of the impugned order. We have perused the order for assessment year 2001 -2002 passed by the A.O. u/s. 143(3), a copy of which is placed at page 20 of the paper book. It indicates that there was no dispute on the date of commencement of the construction. In this order, it has been mentioned in para 7 that the assessee also states it received N.A. order for assessment year 2000-2001 . This factual assertion of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment or rectification proceedings. 4. Be that as it may the assessee argued before the learned CIT that the commencement certificate issued by CIDCO on 7.4.1998 was only approval letter for commencing the construction whereas the actual commencement was done only after receiving certificate from District Collector of Thane on 19.5.1999. We have perused the copy of certificate issued by CIDCO dated 7.4.1998, which is available at page 6 onwards of the paper book. The very first page indicates that the permission was granted by CIDCO subject to certain conditions for the development work. Clause no. 16 of this certificate states that the grant of this permission is subject to the provisions of any other law for the time being in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriate to deal with the permission granted by the District Collector, Thane, which was a pre-condition to take up the development and construction work. From these facts it clearly emerges that the date of commencement by the assessee was after 1.10.1998 and the learned CIT was not justified in substituting it with 7.4.1998. When this condition of commencing the construction activity before 1.10.1998 is satisfied, there remains to doubt that the deduction was rightly allowed to the assessee and as such the assessment order cannot be held as prejudicial to the interest of Revenue. Even if the Assessing Officer passed the order without application of mind but the rightful claim was allowed, the jurisdiction of the CIT u/s. 263 was ousted as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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