TMI Blog2016 (5) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... dent : Shri Hitendra Ninawe ORDER PER SUSHMA CHOWLA, JM: This bunch of three appeals filed by the assessee are against consolidated order of CIT(A)-III, Pune, dated 28.07.2011 relating to assessment years 2005-06 to 2007-08 against respective orders passed under section 143(3) / 143(3) r.w.s. 147 of the Income-tax Act, 1961 (in short the Act ). 2. This bunch of three appeals filed by the assessee relating to similar issue were heard together and are being disposed of by this consolidated order for the sake of convenience. However, reference is being made to the facts and issues in assessment year 2007-08 by the learned Authorized Representative for the assessee and hence, we proceed to adjudicate the issue by referring to the orders of authorities below relating to assessment year 2007-08. 3. The assessee in ITA No. 2240/PN/2012 has raised the following ground of appeal:- 1] The learned CIT(A) erred in holding that the reasst. u/s 147 was valid in law. He failed to appreciate that the appellant had complied with all the conditions of section 80IB(10) and thus, there was no warrant for reopening the asst. 1.1] The appellant submits that the reasst. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority i.e. Solapur Municipal Corporation. The Assessing Officer was of the view that since no completion certificate was issued by the local authority in respect of the said housing project, the assessee was not deemed to have completed construction before 31.03.2008, hence the assessee was not entitled to the claim of deduction under section 80IB(10) of the Act. Accordingly, reasons were recorded for reopening assessment under section 147 of the Act and in response to notice under section 148 of the Act, the assessee furnished a letter stating that the original return of income filed by it should be treated as reply to notice under section 148 of the Act. The reasons for reopening of the assessment were supplied to the assessee in this regard and after considering the submissions of assessee, the Assessing Officer vide paras 6 and 7 observed as under:- 6. The assessee s submission has duly been considered. During course of survey it was seen that there was no construction activity going on. Photographs and video recording was taken during course of survey and same are placed on records. Further, in response to question 14 and 15 of the statement recorded during survey as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the assessee was not eligible for claiming deduction under section 80IB(10) of the Act and the said deduction was not allowed to the assessee. 8. The CIT(A) upheld the order of Assessing Officer in denying the deduction claimed under section 80IB(10) of the Act for non-receipt of completion certificate by 31.03.2008 with regard to assessment years 2005-06 to 2007-08. However, with regard to assessment year 2004-05, it was observed by the CIT(A) that the said provisions of receipt of completion certificate were brought into Statute on 01.04.2004 and hence, were not application to assessment year 2004-05. Accordingly, the claim of deduction under section 80IB(10) of the Act was allowed to the assessee. 9. The learned Authorized Representative for the assessee after referring to the factual aspects of the case and statement recorded during the course of survey, pointed out that the construction of all the units totaling 27 flats were completed by the assessee before the end of March, 2008 and persons had occupied the flats and also received notices for payment of municipal taxes and even electricity bills and since the said units were occupied by the respective owners of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee is in appeal before us. 12. We find that similar issue of claim of deduction under section 80IB(10) of the Act in respect of project which had commenced on 12.12.2003 and which was to be completed on or before 31.03.2008 and in the absence of any completion certificate being issued by the local authority, the issue of claim of deduction under section 80IB(10) of the Act in such circumstances was deliberated upon by the Pune Bench of Tribunal in Runwal Developers Vs. ACIT (supra). The facts as referred to by the Tribunal in paras 4 and 5 were as under:- 4. The project of the assessee commenced on 12.12.2003. The Assessing Officer was of the view that the project of the assessee did not comply with the conditions prescribed in clause (a) to section 80-IB(10) of the Act read with Explanation (ii) thereof. As per the Assessing Officer, the construction of the project was to be completed by 31.03.2008 and in terms of Explanation (ii) of clause (a) to section 80-IB(10) of the Act, the date on which the completion certificate is issued by the local authority is to be taken as the date of completion. In the present case, according to the Assessing Officer, assessee did not obtai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-clause (i) of clause (a) to section 80-IB(10) of the Act read with Explanation (ii) thereof. As per the Revenue, having regard to sub-clause (i) of clause (a) to section 80- IB(10) of the Act, the construction of the housing project was to be completed on or before 31.03.2008. Sub-clause (i) of clause (a) to section 80-IB(10) of the Act prescribes that where a housing project is approved on or before 01.04.2004 then the development and construction of such housing project shall be completed on or before 31.03.2008. Explanation (ii) below clause (a) of section 80-IB(10) of the Act provides that the date of completion of construction of the 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. 8. In the present case, it is an admitted position that the housing project of the assessee known as Runwal Daffodils commenced with effect from 12.12.2003 and therefore construction of such a housing project was required to be completed on or before 31.03.2008 as stipulated in sub-clause (i) of clause (a) to section 80-IB(10) of the Act. It is also not denied by the assessee that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved by the local authority on or after the 1st day of April, 2004 but not later than the 31st day of March, 2005, within four years from the end of the financial year in which the housing project is approved by the local authority. (iii) In a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation- For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the 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; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anvassed before the lower authorities as well as before us that the construction of the project was complete in all respects by 31.03.2008. In-fact, before the CIT(A) assessee also pointed out that it had made an application to the PMC for issuance of completion certificate before 31.03.2008. It was, thus, contended that the construction of the project was complete within the stipulated period and the same should be taken as a due compliance with the requirements of clause (a) to section 80-IB(10) of the Act. We find that the lower authorities have reproduced the submissions of the assessee in this regard in their respective orders. The Assessing Officer has reproduced the submissions of the assessee in para 4 of the assessment order. The Assessing Officer has also noted that assessee furnished the copy of electricity bills and possession documents in respect of the flat owners, which formed a part of written submissions. Assessee had asserted before the Assessing Officer that the PMC was levying municipal taxes in respect of each of the flat in the project and such levies were in the name of the respective owners. The MSEB receipts and possession documents were also furnished to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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