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2016 (6) TMI 548 - ITAT MUMBAI

2016 (6) TMI 548 - ITAT MUMBAI - TMI - Deduction under section 80IB(10) - Held that:- In the year under consideration, i.e. A.Y. 2008-09, we find that the learned CIT(A) had examined and found from the report of the Inspector of Income Tax dated 02.03.2007 that with respect to the claim for deduction in respect of the four buildings in Vijay Garden, all requisite documents including the commencement and completion certificates are obtained and placed on record. The learned CIT(A) has also observ .....

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e assessee’s return for the year under consideration has been e-filed, the original documents/ annexures, Audit Report, etc. are to be produced before the AO in the coruse of assessment proceedings; which has been done in this case. Before us, except for raising the grounds (supra), the learned D.R. for Revenue has not been able to bring on record any material evidence to contradict the findings of facts rendered by the learned CIT(A) that the assessee has fulfilled the conditions laid down for .....

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enue : Shri Bhumika V. Vora ORDER Per Jason P. Boaz, A.M. These appeals by Revenue are directed against the orders of the CIT(A)- 39, Mumbai dated 30.11.2012 for A.Y. 2002-03; dated 18.01.2013 for A.Y. 2004-05 and 2005-06; dated 31.01.2013 for A.Y. 2006-07; dated 30.01.2013 for A.Y. 2007-08 and dated 18.02.2013 for assessment years 2008-09 & 2009- 10. These appeals having interconnected issues and being heard together are being disposed off by way of this consolidated order in seriatum. 2. R .....

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The appellant, therefore, prays that on the grounds stated above, the order of the CIT(A)-39, Mumbai may be set aside and that of the Assessing Officer restored. 2.2 From a perusal of the grounds raised (supra) it is seen that the single issue raised therein is with regard to the learned CIT(A) allowing the assessee s claim for deduction under section 80IB(10) of the Act by following the decision of the Coordinate Bench of this Tribunal in the assessee s own case for assessment years 2000-01 to .....

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idered the assessee s claim for deduction under section 80IB(10) of the Act and allowed the same considering the facts of the case and by following the decision of the Coordinate Bench of this Tribunal in ITA Nos. 3514 to 3520/Mum/2009 dated 24.08.2011 in the assessee s own case for assessment years 2000-01 to 2006-07. It is prayed that in view of the above, Revenue s appeal was liable to be dismissed. 2.4.1 We have heard the rival contentions of both the parties and perused and carefully consid .....

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tion 263 of the Act held the order of assessment passed by the Assessing Officer (AO) to be erroneous and prejudicial to the interest of the Revenue and set aside the order of assessment. The AO then passed order under section 143(3) r.w.s. 153! & 263 of the Act disallowing the assessee s claim for deduction under section 80IB(10) of the Act. Subsequently, the Coordinate Bench of this Tribunal vide its order in ITA Nos. 3514 to 3520/Mum/2009 dated 24.08.2011 quashed the order passed by the l .....

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that the A.O has originally granted deduction under s. 8-IB(10) of the Act. However, while completing the impugned assessment the A.O declined to grant deduction for the following reasons: (a) Building no. 1 to 13 commencement certificate no. 97064/TMC/TDD/ 1687 was issued on 04.10.1997 by the Thane Municipal Corporation for buildings constructed on survey no. 136,137 and 138. Since the date of commencement of Build Nos. 1 to 13 is before 1.10.1998 deduction u/s. 80IB(10) is not allowable to the .....

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provisions of s. 263 for the A.Y. 2000-01 to 2006-07 on the ground that on examination of these orders, it was observed that the same were erroneous and prejudicial to the interest of Revenue mainly because deduction under s. 801B(10) has been allowed, whereas assessee had not fulfilled all the conditions. 8.3 The appellant had filed appeal against the order passed under s. 263 and the Hon'ble ITAT vide orders in ITA No. 3515 to 3520/Mum/2009 dated 24.8.2011 had quashed the orders under s. 2 .....

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refore, commencement should be reckoned on 04/10/1997. As per section 801B (10) the first condition for claiming deduction is that the project must have commenced on or after 1st date of October, 1998. However, as pointed out by the Ld. Counsel of the assessee the work could not start because of hindrances and the same started only after 17/10/1998, which becomes clear from the letter of the architect addressed to the TMC which is available at page 111 of the paper book. It was further pointed o .....

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and date of completion of this project was 17/10/1998 and 13/10/2001, 13/12/2001 & 06/02/2002 respectively. The documentary proof of municipal approved plan, architect, certificate, and completion certificate etc, are obtained and placed on record." 8.5 Thus it is observed that on the basis of enquiry by the A.O it had been ascertained that actual construction had commenced only after 17.10.1998. Thus, although the appellant had received commencement certificate prior to 1.10.1998, actu .....

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in A. Y. 2000-01." 8.6 Thus the said objection is also not tenable. The amendment introduced by the Finance Act, 2002 is applicable w.e.f. 1.4.2003 i.e. A.Y. 2003-04 and onwards. Hence it is held that the claim for deduction under s. 80IB(10) is allowable and hence to be allowed, it is directed accordingly. 2.4.3 On an appreciation of the facts of the case for the year under consideration, i.e. A.Y. 2002-03 in respect of the assessee s claim for deduction under section 80IB(10) of the Act w .....

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nds at S.Nos. 1 to 3 raised by the Revenue are dismissed. 3. In the result, Revenue s appeal for A.Y. 2002-03 is dismissed. 4. Revenue s appeal in ITA Nos. 2879 & 2880/Mum/2013 for assessment years 2004-05 & 2005-06 4.1 In the appeals for both assessment years 2004-05 and 2005-06, the revenue has preferred the following identical grounds: - 1. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in holding that the assessee has fulfilled the conditions laid .....

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which violated the condition precedent for allowing deduction u/s. 801B(10). 3. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in allowing the claim of the assessee u/s. 80IB(10) despite noting that the assessee had filed only consolidated audit report and not separate audit report in respect of each project as mandatory under Rule 18BBB. 4. The Appellant craves to leave to add, to amend and / or to alter any of the grounds of appeal, if need be. 5. The appel .....

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s. 5315 to 5320/Mum/2009 dated 24.08.2011 in the assessee s own case for assessment years 2000-01 to 2006- 07. The learned D.R. for Revenue was heard in support of the grounds raised and submitted that the learned CIT(A) ought not to have followed the aforesaid order of the Coordinate Bench of this Tribunal (supra) since the Department had not accepted this order and had preferred appeals against the same before the Hon'ble High Court. 4.3 Per contra, the learned A.R. for the assessee submit .....

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4.4.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record; including the judicial pronouncement cited. The facts of the matter are that the AO completed the orders of assessment for assessment years 2004-05 and 2005-06 under section 143(3) r.w.s. 153A of the Act vide orders dated 30.03.2007 allowing the assessee s claim for deduction under section 80IB(10) of the Act. Subsequently, the CIT, Central-II, Mumbai invoking the provisions .....

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de its orders in ITA Nos. 3514 to 3520/Mum/2009 dated 24.08.2011 quashed the orders passed by the learned CIT under section 263 of the Act for assessment year 2000-01 to 2006-07. 4.4.2 We find that the learned CIT(A), considering the facts of the case for the years under consideration and following the aforesaid decision of the Coordinate Bench of this Tribunal dated 24.08.2011 in the assessee s own case for assessment year 2000-01 to 2006-07, at paras 5.1 to 5.5 of the impugned orders for asses .....

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tion has allowed deduction u/s 80IB(10) in. the assessment order date 30.03.2007 passed under s.143(3) r.w. 153A. Subsequently the Commissioner invoked the provisions of section 263 and set aside the assessment order dated 30.3.2007 mainly for the purpose of withdrawing the deduction allowed by the Assessing Officer in the order dated 303.2007. The Hon'ble ITAT quashed the order passed by the CIT under s. 263. The Assessing Officer has in the impugned order disallowed the deduction under s. .....

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otherwise illegal, bad in law or otherwise void for want of jurisdiction. 5.3 On a reading of the assessment order, it is perceived that the Assessing officer had denied the claim citing the following reasons: (a) Phase-II Project "Vijay Nagari Annex- II (Building No. 14 to 18, Survey No. 138) commenced on 30.03.2001 as per Commencement Certificate No. 99/018/ TMC/TDD/2295 dt. 30.03.2007 of the Thane Municipal Corporation. For Building No. 14, 15, 77 & 18 Occupancy Certificate No. 99/01 .....

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Row House No. 1-12) commenced on 11.07.2002 vide commencement certificate No.2002/07TMC/TDD/837. Total super built up are for .fiats ranges from 380Sq.Ft. to 1015 Sq. Ft. and area for Row Houses is 2000 Sq.Ft. each. Since this project Contains row houses of 2000 Sq.Ft. area each., the deduction under s. 80IB of the assessee Act cannot be allowed. 5.4 The appellant has made further submission, as under, in this regard, which are extracted below: As regards point no(a) wherein the ld. A.O. has al .....

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/s 80IB(10) as well as from the completion certificate issued by the architect. It may be noted that the ld. A.O. during the course of assessment proceedings deputed two Inspectors at the sites of the housing projects constructed and developed by the appellant in order to verify the claim of the appellant u/s 80IB(10). The Inspectors accordingly submitted their report vide letter dated 2.3.2007. The relevant para of the Inspectors report is reproduced as under : "In this project the assesse .....

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ord." Therefore, it is submitted that the ld. A.O. in the order u s 143(3) r.w.s.153A has correctly & legitimately allowed the claim of deduction u/s 80IB(10). It is further submitted that during the course of search at the premises of the third parties no incriminating document relating to the claim of deduction u s 801B(10) was found. In the absence of any incriminating material the ld. A.O. is not empowered to disallow the claim of deduction u/s.80IB(10) in the impugned order passed .....

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rejudicial to the interest of revenue and set-aside the assessment order. After considering the submission made by the authorized representative the ld. A.O. passed order u/s 143(3) r.w.s. 153A & 263 and disallowed the deduction u/s 80IB(1) claimed by the appellant, which are allowed by the ld. A.O. in the order passed u/s 143(3) r.w.s. 153A. IN The appellant filed appeals before the Hon'ble ITAT against the ld. CIT's order passed u/s 263. The Hon'ble ITAT vide order dated 24.08. .....

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e objection as raised by the Assessing Officer are not factually correct, as stated in paragraph 13 of its order. In these circumstances, and especially in the light of the fact that the consequential order passed by the Assessing Officer under s. 143(3) r.w.s. 263/-153A no longer survive, the Assessing Officer is not correct in disallowing the claim under s. 80IB(10). However, it has to be considered that no separate audit report was furnished as mandated by Rule 18BB, the appellant had furnish .....

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sing Officer and subject to filing and due verification, the claim stands allowed. 4.4.3 On an appreciation of the facts of the case for the two assessment years 2004-05 and 2005-06 on the issue of the assessee claim for deduction under section 80IB(10) of the Act for assessment years 2004-05 and 2005-06 we find that no material has been brought on record by Revenue to controvert the factual findings of the learned CIT(A) (supra) and therefore find no requirement to interfere with or deviate the .....

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. 1 to 5 raised by Revenue in the appeals for both the assessment years 2004-05 and 2005-06 are dismissed. 5. In the Result, Revenue s appeals for assessment years 2004-05 and 2005-06 are dismissed. 6. Revenue s Appeal in ITA No. 2881/Mum/2013 for A.Y. 2006-07 6.1 In this appeal, Revenue has raised the following grounds: - 1. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in holding that the assessee has fulfilled the conditions laid down u/s 80IB(10) without .....

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ion precedent for allowing deduction u/s. 801B(10). 3. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in allowing the claim of the assessee u/s. 80IB(10) despite noting that the assessee had filed only consolidated audit report and not separate audit report in respect of each project as mandatory under Rule 18BBB. 4. The Appellant craves to leave to add, to amend and / or to alter any of the grounds of appeal, if need be. 5. The appellant, therefore, prays tha .....

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assessee s own case for assessment years 2000-01 to 2006-07. The learned D.R. for Revenue was heard in support of the grounds raised and submitted that the learned CIT(A) ought not to have followed the aforesaid order of the Coordinate Bench of this Tribunal (supra) since the Department had not accepted the order and had preferred appeal against the same before the Hon'ble High Court. 6.3 Per contra, the learned A.R. for the assessee submitted that the learned CIT(A) has considered the asses .....

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the material on record; including the judicial pronouncement cited. The facts of the matter are that the AO completed the order of assessment for A.Y. 2006-07 under section 143(3) r.w.s. 153A of the Act vide orders dated 30.03.2007 allowing the assessee s claim for deduction under section 80IB(10) of the Act. Subsequently, the CIT, Central-II, Mumbai invoking the provisions of section 263 of the Act held that the aforesaid orders of assessment for A.Y. 2006-07 to be erroneous and prejudicial to .....

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the learned CIT(A), considering the facts of the case for the year under consideration and following the aforesaid decision of the Coordinate Bench dated 24.08.2011 in the assessee s own case for assessment year 2000- 01 to 2006-07, partly allowed the assessee s claim for deduction under section 80IB(10) of the Act, subject to verification of Audit Report/Certificates, by holding as under at paras 6.1 to 6.4: - 6.1 The Assessing Officer disallowed the claim on account of various reasons, which .....

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No. 1-13 and Row House No. 1- 12) commenced on 11.07.2002 vide commencement certificate No.2002/07TMC/TDD/837. Total super built up are for .fiats ranges from 380Sq.Ft. to 1015 Sq. Ft. and area for Row Houses is 2000 Sq.Ft. each. Since this project Contains row houses of 2000 Sq.Ft. area each., the deduction under s. 80IB of the assessee Act cannot be allowed. (c) As per Rule 18BBB it is mandatory to file separate audit report for each undertaking or enterprise for which deduction is claimed an .....

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of assessment proceedings, the Assessing Officer had deputed two inspectors at the site of the housing project in order to verify the claim of the appellant under s. 80IB(10). The relevant paragraph of the Inspectors report is reproduced as under: II(ii) Vijay Nagri Annexure Phase-Il - In this project the assessee had constructed five buildings. The area of land utilized for this project is 3.16 acres and the built-up area of flats constructed on each of these building are ranging from 539 to 79 .....

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only in respect of Bldg. Nos. 10 to 13, and the same is evident from para 2 of the Inspectors report which is reproduced below: "2. Vijay Garden- In this project the assessee had constructed 13 buildings in Survey no.234, ,Hissa No.2, Kavesar, Godbunder Road, Thane(W) under the name Vijay Garden. Out of the 13 buildings assessee had claimed deduction u/s 80-III in respect of 4 buildings. The area of the land utilized for this project is 2.05 acres and the builtup area of flats constructed .....

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t in Form 10CCB for each undertaking or enterprise for which the deduction had been claimed. In this regard it is submitted that the consolidated Audit Report was already furnished alongwith the return of income and therefore the claim of the appellant cannot he denied. The non-furnishing of separate Audit Report alongwith the return will render the return defective and therefore the defect is clearable. iii) It is further submitted that during the course of search no incriminating documents rel .....

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sidering the assessment order as erroneous and prejudicial to the interest of revenue and set aside the assessment order. The Assessing Officer thereafter passed order under s. 143(3) r.w.s. 153A and 263 after disallowing the deduction under s. 80IB(10) claimed by the appellant. However, the Hon'ble ITAT vide order dt.24.8.2011 quashed the order passed by the CIT(C)-II, Mumbai, under s. 263. The Hon.ble ITAT in para 13 of its order has held as under: "13. The first objection raised by t .....

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tober, 1998. However, as pointed out by the Ld. Counsel of the assessee the work could not start because of hindrances and the same started only after 17.10.1997, which becomes clear from the letter of the architect addressed to the TMC which is available at page 111 of the paper book. It was further pointed out that an enquiry was made by A.O. himself through the Inspector and the Inspector has categorically stated that actual construction started on 17.10.1998. The relevant para of the Inspect .....

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letion certificate etc, are obtained and placed on record." We further find that a detailed reply in this regard was filed before the CIT and, therefore, Ld. Commissioner should have determined the exact objection found by him and if nothing was found wrong, then he should have dropped the proceedings. We further find this proposition has been confirmed by Delhi Bench of the Tribunal in the case of Institute of Chartered Accountants of India vs. DIT(Exemption) [supra] wherein at page 561 it .....

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stating that assessee has not filed certain documents on record at the time of assessment, it does not justify the conclusion arrived at by the CIT that A.O. has shirked his responsibility of investigating the case. It was further observed that in view of the .fact that assessee has explained the capital investment made by the partners, which had been called into question by the CIT, during the course of proceedings before him, the CIT was held to be not justified in passing order u/s 263. In vi .....

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t the order of CIT u/s 263 was bad in law. Accordingly, it was held that where the CIT has stated in his order that A.O. has not examined certain items, assuming this to be so, the order will only be erroneous, but it cannot be said to be prejudicial to the interest of the revenue till the CIT deals with the explanation given by the assessee with regard to the items alleged by him in the course of proceedings u/s 263. Meaning thereby the CIT should have appreciated the reply filed by the assesse .....

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is adopted, then no fault can be found with the action of the A.O. because the Hon'ble Supreme Court in the case of Malbar Industrial Commissioner Ltd. vs. CIT [243 ITR 83] has held as under : "A bare reading of this provision makes it clear that the perquisite to the exercise of jurisdiction by the Commissioner suo motto under it, is that the order of the Income Tax Officer is erroneous in so far as it is prejudicial to the interest of the Revenue. The Commissioner has to be satisfied .....

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n will be attracted. An incorrect assumption of facts or an incorrect application of law will satisfy the requirement of the order being erroneous. In the same category full orders passed without applying the principles of natural justice or without application of mind. The phrase "prejudicial to the interest of the Revenue" is not an expression of the art and is not defined in the Act. Understood in its ordinary meaning it is of vide import and is not confined to loss of tax. The sche .....

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course permissible in law and it has resulted in loss of Revenue; or where two views are possible and the income Tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interest of the Revenue, unless the view taken by the Income Tax Officer is sustainable in law." In view of the above, we are of the view that this objection cannot be sustained." On the basis of the above submissions it is prayed that ded .....

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on allowed by the Assessing Officer. The Hon'ble ITAT quashed the order passed by the CIT under s 263. The Assessing Officer, in the impugned order has disallowed the deduction under s. 80IB(10) reckoning that the deduction has been disallowed in the order passed under s. 143(3) r.w.s. 263/153A. It has to be held that since the order passed by the CIT under s.263 has been quashed by the Hon'ble Tribunal, the consequential order passed by the Assessing Officer under S. 143(3) r.w.s. 263/1 .....

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Report in Form 10CCB, which condition has not been met for the reason that only a consolidated Audit Report was furnished. The appellant is indeed bound to furnish separate Audit Report for each undertaking or enterprise for which the deduction is claimed. At this juncture, if the view held by the judiciary is taken into account, then it follows that the provisions of section 80IB(13) are directory and that the defect of not furnishing the requisite Audit Report is curable. Accordingly, the app .....

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opportunity to the appellant with regard to examination of the project wise Audit Reports, 6.5 This ground is treated as allowed in part. 6.4.3 On an appreciation of the facts of the case, on the assessee s claim for deduction under section 80IB(10) of the Act for A.Y. 2006-07, we find that Revenue has failed to bring on record any material to controvert the findings of the learned CIT(A) (supra) and therefore find no requirement to interfere with or deviate therefrom. In this factual matrix of .....

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ult, Revenue s appeal for A.Y. 2006-07 is dismissed. 8. Revenue s appeal in ITA No. 2882/Mum/2013 for A.Y. 2007-08 8.1 In this appeal, Revenue has raised the following grounds: - 1. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in holding that the assessee has fulfilled the conditions laid down u/s 80IB(10) without appreciating the fact that the assessee failed to obtain Completion Certificate issued by the Local Authority in respect of all the projects on wh .....

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ing the claim of the assessee u/s. 80IB(10) despite noting that the assessee had filed only consolidated audit report and not separate audit report in respect of each project as mandatory under Rule 18BBB. 4. The Appellant craves to leave to add, to amend and / or to alter any of the grounds of appeal, if need be. 5. The appellant, therefore, prays that on the grounds stated above, the order of the CIT(A)-39, Mumbai may be set aside and that of the Assessing Officer restored. 8.2 From a perusal .....

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80IB(10) of the Act and allowed the same considering the facts of the case for the relevant year under consideration and by following the decision of the Coordinate Bench of this Tribunal in ITA Nos. 3514 to 3520/Mum/2009 dated 24.08.2011 for assessment years 2000-01 to 2006-07. It is prayed that in view of the above, Revenue s appeals for A.Y. 2006-07 is liable to be dismissed. 8.4.1 We have heard the rival contentions and perused and carefully considered the material on record. The facts of t .....

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oordinate Bench of this Tribunal vide its orders in ITA Nos. 3514 to 3520/Mum/2009 dated 24.08.2011 wherein the Coordinate Bench had quashed the order under section 263 of the Act for assessment year 2000-01 to 2006-07 denying the assessee deduction under section 80IB(10) of the Act. At paras 7.1 to 7.5 of the impugned order the learned CIT(A) has considered and allowed the assessee s claim for deduction under section 80IB(10) of the Act holding as under: - 7.1 The appellant had claimed deductio .....

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30,384 Vijay Vatika 11.08.2003 27.10.2007 1.78 Acres 1,14,46,927 Vijay Vilas (1-6) 14.12.2004 14.04.2007 2.78 acres 67,96,871 Vijay Park-II (1-3) 11.07.2000 March 2002 1.39 Acres 2,12,350 Vijay Park-II (8- 13, 17,21) 11.07.2000 March 2002 4.67 Acres 13,34,230 Vijay Park-II (14- 16, 22-23) 11.07.2000 March 2003 3.36 Acres 4,21,620 Total 5,47,17,622 7.3 The A.O. has disallowed the claim on account of various reasons, summarized as hereunder: (a) Phase-II Project "Vijay Nagari Annex- II (Build .....

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ate No.2002/07TMC/TDD/837. Total super built up are for .fiats ranges from 380Sq.Ft. to 1015 Sq. Ft. and area for Row Houses is 2000 Sq.Ft. each. Since this project Contains row houses of 2000 Sq.Ft. area each., the deduction under s. 80IB of the assessee Act cannot be allowed. (c) Project Vijay Nagari Ananex-II (Building No. 26,27), Vijay Park II (1-3), Vijay Park -II (8-13), 17 to 21) Vijay Park II (14-16, 22-23), the appellant has received occupancy certificate and completion certificate not .....

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tirely frivolous on the ground that this allegation has not found place in the assessment order passed u/s 143(3) r.w.s. 153A, show cause notice issued by CIT u/s 263, order passed by CIT u/s 263, consequential order passed by the A.O. u/s 143(3) R.W.S. 263/153a. It is submitted that the building has been completed which is evident from audit report u/s 80IB(10) as well as from the completion certificate issued by the architect which is placed at pages nos. 11-13 of the paperbook. It may be note .....

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d for this project is 3.16 acres and the built-up area of flats constructed on each of these building are ranging from 539 to 792 sq. feet. The date of commencement and date of completion of this project was 31.03.2001 and March 2004 respectively. The documentary proof of municipal approved plan, architect certificate, commencement certificate and completion certificate, etc. are obtained a rid placed on record." (b) As regards the project Vijay garden (1-13), the A.O's objection is tha .....

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Kavesar, Godbunder Road, Thane(W) under the name Vijay Garden. Out of the 13 buildings assessee had claimed deduction u/s 80-III in respect of 4 buildings. The area of the land utilized for this project is 2.05 acres and the builtup area of flats constructed on each of these building are ranging from 315 to 784 per sq. feet. The date of commencement and date of completion of this project was 07.11.2002 and January 2006 respectively. The documentary proof of municipal approved plan, architect cer .....

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ate is issued by the competent authority on receipt of completion certificate from the architect. d) Further, the A.O. has erroneously held that the appellant is not entitled to deduction u/s 80IB(10) on the ground that the appellant failed to file separate report along with the return of income in Form No. 10CCA for each undertaking or enterprise for which deduction has been claimed. In this respect it is submitted as under: The objective of the A.O. is frivolous as the appellant has filed the .....

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proceedings, the A.O. had deputed two Inspectors for on-site verification, who had clearly stated that project Vijay Nagari Phase II commenced on 31.3.2011 and was completed in March 2003; that with regard to Vijay Garden, the deduction had been claimed in respect of Building Nos. 10 to 13, and not in respect of Row houses being Building nos. 1-9, The copy of the Inspector's Report is available at page nos. 85-86 of the paper book filed. As regards Project "Vijay Nagari Annex-II, that o .....

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/2008 dated 18.7.2008, it was clarified that no documents were to be attached with the returns filed on electronic mode. The original documents and certificates were to be produced when called for by the A.O. The appellant has filed copy of the Audit Report under s. 80IB(10), project wise, which were furnished to the A.O., at pages 5 to 84 of the Paper Book furnished. Moreover, it is noted that the CIT, Central-II, Mumbai had invoked the provision of S. 263 on the ground that the assessment orde .....

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tled to the claim under s. 80IB(10). 8.4.2 On an appreciation of the facts of the case on assessee s claim for deduction under section 80IB(10) of the Act for A.Y. 2007-08, we find that, except for raising grounds in this regard, Revenue has failed to bring on record any material to controvert the findings of the learned CIT(A) supra and therefore find no requirement to interfere with or deviate therefrom. In this factual matrix of the case as discussed above and following the ratio of the decis .....

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Revenue s appeal in ITA No. 3497/Mum/2013 for A.Y. 2008-09 10.1 In this appeal, Revenue has raised the following grounds: - 1. On the facts and in the circumstances of the case and in law, the CIT(A) has erred in holding that the assessee has fulfilled the conditions laid down u/s 80IB(10) without appreciating the fact that the assessee failed to obtain Completion Certificate issued by the Local Authority in respect of all the projects on which it has claimed deduction u/s. 801B(10) of the IT Ac .....

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ing that the assessee had filed only consolidated audit report and not separate audit report in respect of each project as mandatory under Rule 18BBB. 4. The Appellant craves to leave to add, to amend and / or to alter any of the grounds of appeal, if need be. 5. The appellant, therefore, prays that on the grounds stated above, the order of the CIT(A)-39, Mumbai may be set aside and that of the Assessing Officer restored. 10.2 From a perusal of the grounds raised (supra), it is seen that the iss .....

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nsidering the various facts of the case for the year under consideration in this regard and satisfying himself that all stipulated conditions are fulfilled in claiming deduction under section 80IB(10) of the Act. It is submitted that even in the earlier years, i.e. 2000-01 to 2006-07, the Coordinate Bench of this Tribunal has held that the assessee is entitled for deduction under section 80IB(10) of the Act (supra). 10.4.1 We have heard the rival contentions of both the parties and perused and c .....

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owed the assessee s claim for deduction under section 80IB (10) of the Act holding as under at para 7 thereof that the assessee had fulfilled all the stipulated conditions for being allowed the said deduction: - 7. I have considered the matter and examined the material as placed in the Paper Book submitted. The appellant has placed on record a copy of, lie Inspector's report dated 02.03.2007(Pages 82 to 83 of Paper Book). From the said report, it is seen it has been reported therein that wit .....

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contain the copies of the completion certificates given by the Architect to enable the Municipal authorities to issue the Occupancy Certificate. Thus it is found that there is merit in the contention that without completion certificate from the Architect, the Occupancy Certificate cannot he obtained. Also, it is clear from the order of the AO himself that no claim was made for deduction in respect of row houses being building numbers 1-9 of Vijay Garden. It is clear from the chart as prepared b .....

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e Audit Reports in Form 10CCB, project wise, were produced during the course of assessment proceedings, and is part of the record of the A.O. Hence the conditions precedent for being eligible to the claim for deduction under s. 80IB(10) stand fulfilled. In these circumstances, it is held that appellant is entitled to deduction claimed under s. 80IB(10). It is accordingly held so. 10.4.2 On an appreciation of the facts of the case on the issue of the assessee s claim for deduction under section 8 .....

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riginally allowed to the assessee by the AO. In the year under consideration, i.e. A.Y. 2008-09, we find that the learned CIT(A) had examined and found from the report of the Inspector of Income Tax dated 02.03.2007 that with respect to the claim for deduction in respect of the four buildings in Vijay Garden, all requisite documents including the commencement and completion certificates are obtained and placed on record. The learned CIT(A) has also observed that the Occupancy Certificate is issu .....

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nsideration has been e-filed, the original documents/ annexures, Audit Report, etc. are to be produced before the AO in the coruse of assessment proceedings; which has been done in this case. Before us, except for raising the grounds (supra), the learned D.R. for Revenue has not been able to bring on record any material evidence to contradict the findings of facts rendered by the learned CIT(A) that the assessee has fulfilled the conditions laid down for being allowed deduction under section 80I .....

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the following grounds: - 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the assessee has fulfilled the conditions laid down u/s. 80IB(10) without appreciating the fact that the assessee failed to obtain a Completion Certificate issued by the Local Authority in order to claim deduction u/s. 80IB(10) of the I.T. Act, 1961. 2. The Appellant craves to leave to add, to amend and/or alter any of the grounds of appeal, if need be. 3. The appellant, .....

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m the local authority. The learned D.R. was heard in support of the ground raised. 12.3 Per contra, the learned A.R. for the assessee submitted that in the impugned order, the learned CIT(A) has considered all the various facts of the case and allowed the assessee s claim for deduction under section 80IB (10) only after satisfying himself that the assessee fulfilled all the conditions stipulated therein. It is submitted that the fact that the assessee is legally entitled to deduction under secti .....

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ind from a perusal of the impugned order that the CIT(A) after considering all the contentions/objections of the AO and the facts of the case on this issue in the year under consideration, allowed the assessee s claim for deduction under section 80IB (10) of the Act holding as under at para 7 thereof that the assessee had fulfilled all the stipulated conditions for being allowed the said deduction. 7. I have considered the findings of the A.O. and the contentions as raised by the appellant. It i .....

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ngs. From a perusal of the said documents it is observed that the occupancy certificate for the various projects have been issued by the Municipal Corporation and the same are addressed to M/s Archetype Consultants (I) Pvt. Ltd., who in turn have submitted the completion certificates, which is referred to in the said certificate of occupancy. Hence the claim cannot be denied for the reason that completion certificates haves not been obtained for the reason that it is after receipt of the complet .....

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the assessee s eligibility for being allowed the deduction under section 80IB(10) of the Act has been upheld by the decision of the Coordinate Bench of this Tribunal in the assessee s own case in ITA Nos. 3514 to 3520/Mum/2009 dated 24.08.2011 wherein the Coordinate Bench had quashed the orders under section 263 of the Act for assessment years 2000-01 to 2006-07 whereby by the learned CIT had withdrawn the said deduction originally allowed by the AO. In the year under consideration, the assesse .....

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