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2016 (11) TMI 1306 - ITAT PUNE

2016 (11) TMI 1306 - ITAT PUNE - TMI - Deduction u/s. 80IB(10) - Held that:- In the present case, the project has been approved by the local authority before 01.04.2005 within the meaning of clause (a) of section 80-IB(10) of the Act and therefore the ratio of the judgement of the Hon’ble High Court in the case of CIT vs. CHD Developers Ltd. (2014 (1) TMI 1542 - DELHI HIGH COURT ) squarely applies. However, it would be required to establish by the assessee that the construction of the project as .....

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perty tax assessment of some individual flat owners, electricity bills showing occupation of the flats, etc. have been referred to in the course of hearing. We find that the said material was placed before the lower authorities and the same has not been repudiated at all. The denial of deduction has been solely on non-obtaining of completion certificate, which in the present case is not a requirement to be insisted upon in view of the judgement of the Hon’ble Delhi High Court in the case of CIT .....

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spectively. Since, identical issues are involved in both the appeals, the appeals are taken up together for adjudication and are decided by this common order. 2. The appeals have been filed with the delay of 1224 days. The ld. AR of the assessee has filed an application for condonation of delay supported by an affidavit citing reasons for delay in filing of appeal. The ld. AR submitted that ex-party orders passed by the Commissioner of Income Tax (Appeals) were received by the office peon of the .....

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ee had filed appeal against the order of Commissioner of Income Tax (Appeals) for assessment year 2006-07 before the Tribunal in ITA No. 607/PN/2011. During the proceedings before the Tribunal, a query was raised by the Bench regarding the fate of appeal for assessment year 2005-06 pending before the Commissioner of Income Tax (Appeals). The assessee was under bonafide impression that the first appeal before the Commissioner of Income Tax (Appeals) for assessment years 2005-06 and 2007-08 are st .....

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g the orders, the assessee filed appeals for the respective assessment years before the Tribunal. By the time the assessee filed appeals before the Tribunal, they were already time barred by 1224 days. The ld. AR submitted that the delay in filing of appeals was not intentional or willful but was caused due to negligence of the office peon who failed to communicate the receipt of orders passed by the Commissioner of Income Tax (Appeals). 2.1 The ld. AR of the assessee further submitted that the .....

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iven liberal construction. The requirement that every day s delay should be explained should not be stressed by taking pedantic approach. The ld. AR submitted that on merits the assessee has prima facie good case as the Commissioner of Income Tax (Appeals) has dismissed both the appeals of the assessee for non-prosecution. The Tribunal in various decisions has held that the Commissioner of Income Tax (Appeals) has no power to dismiss the appeals for nonprosecution. The assessee had filed appeal .....

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ent vehemently opposed the applications for condoning the delay in filing of the appeals. The ld. DR submitted that there has been inordinate delay of 1224 days in filing of appeals. The assessee has been negligent in pursuing his case before the Commissioner of Income Tax (Appeals). The explanation furnished by the assessee for delay in filing of the appeals does not show sufficient cause as envisaged under the provisions of Limitation Act for condoning the day. 4. Both sides heard. The appeals .....

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e staff. The assessee learnt about the orders of Commissioner of Income Tax (Appeals) when in pursuance to a query raised by the Tribunal in appeal of the assessee for assessment year 2006-07 the assessee approached the office of Commissioner of Income Tax (Appeals) to know the status of its appeal for assessment year 2005-06 wherein identical issue was involved. On enquiry it came to the knowledge of the assessee that the appeals pending before the Commissioner of Income Tax (Appeals) have been .....

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the principles to be followed while considering the delay applications. The same are reproduced here-in-under : 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Every day's delay must .....

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is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. 6. It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 5. The Hon'ble Supreme Court of India in the case of N. Balakrishnan Vs. M. Krishnamurthy (supra) while dealin .....

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very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be .....

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to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal reme .....

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ry tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substa .....

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itor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses" 6. The Hon'ble Supreme Court of India in the case of Ram Nath Sao @ Ram Nath Sahu And Others reported as 2002 .....

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y. In a particular case whether explanation furnished would constitute "sufficient cause" or not will depend on facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. The courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refus .....

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right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way . Thus, in view of the facts and circumstances of the present case, the sufficient cause shown by the assessee causing delay in filing of appeals and law laid down by the Hon'ble Apex Court, the delay of 1224 days in filing the appeals by the assessee is condoned. The appeals are admitted to b .....

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-inunder : (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. Thus, from a bare perusal of the aforesaid provision it is amply clear that there is no power vested in the Commissioner of Income Tax (Appeals) to dismiss the appeal of assessee for non-prosecution. The Commissioner of Income Tax (Appeals) being a quasi judicial authority is duty bound to decide the .....

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n merits. Similar view has been taken by the Chennai Bench of the Tribunal in the case of M/s. Questnet Enterprises India Private Limited Vs. The Assistant Commissioner of Income Tax in ITA Nos. 1821 & 1822/Mds/2011 for assessment years 2006-07 and 2007- 08 decided on 18-01-2012. 9. The ld. AR of the assessee has pointed that on merits the grounds raised in the present set of appeals are identical to the grounds raised by the assessee in appeal for assessment year 2006-07 in ITA No. 607/PN/2 .....

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) may be set aside and they be directed to accept the return of income claiming relief under sec 80IB(10). 4) The appellant pleads for directions allowing his appeal and craves leave to add to, alter, amend, modify or withdraw any or all grounds of appeal. Identical grounds have been raised by the assessee in appeal for assessment year 2007-08. 10. We find that the Co-ordinate Bench of the Tribunal in assessee s appeal for assessment year 2006-07 under identical set of facts and grounds have dec .....

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ens. The building plans for the said project were first sanctioned by the Pune Municipal Corporation in January, 2001 and subsequently in March, 2003 and July, 2004. The assessee had claimed the deduction under section 80-IB(10) of the Act for the first time for A.Y. 2004-05 and thereof A.Ys. 2005-06 and 2007-08. The assessments relating to A.Ys. 2004-05 and 2005-06 were completed by passing order under section 143(3) of the Act and the claim of the assessee was accepted. The claim of the assess .....

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he building had been occupied and was being used by the occupies which established the claim of the assessee as to completion of the project within the stipulated period. Though the completion certificate was not received from the Pune Municipal Corporation. However, the Architect s certificate along with the ancillary certificates received from the various Department to establish the completion of the project were filed before the Assessing Officer and the CIT(A). But the Assessing Officer in t .....

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act that all the ancillary certificates from the various Departments had been received, copies of which are available at pages 20 to 24 of the Paper Book. The completion certificate was also received from Architect which is placed at page 19 of the Paper Book. In addition, the corporation tax notice had been issued to the owners which are placed at pages 37 to 41 of the Paper Book. All the above said evidences established that the construction of the building is completed and is fully occupied. .....

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poration. The said order was issued on the basis of a complaint filed by one Shri Vasant Mahadev Deshpande, who was the land owner of another site. Against the said, the assessee filed a Suit with the Court of Civil Judge, Senior Division, Pune on 21.06.2006 against the Pune Municipal Corporation and the relief claimed in the said Suit was that if the work had to be stopped on the complaint of Shri Vasant Mahadev Deshpande then it should be related to the site of Shri Vasant Mahadev Deshpande on .....

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assessee is that consequent to the said order of the Civil Judge, Senior Division, Pune the construction of all the sites except the site connected with Shri Vasant Mahadev Deshpande were started and was later completed. However, the Pune Municipal Corporation did not issue the completion certificate in respect of the properties constructed by the assessee. In the above said circumstances, the application for obtaining completion certificate prepared by the assessee was not accepted by the Pune .....

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. The Hon ble Delhi High Court in the case of CIT vs. CHD Developers Ltd., (2014) 362 ITR 177 (Delhi) noted the provisions of section 80-IB(10) of the Act and the pre-amended provisions which were amended by Finance Act, 2000 w.e.f. 01.04.2001 and also the substitution by the Finance (No.2) Act, 2004 w.e.f. 01.04.2005 and held that in the pre-amended provisions when the plan was sanctioned/approved, there was no condition of production of completion certificate. The Hon ble High Court held that .....

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ed to complete the project on or before 31.03.2009. The issue arising before the Hon ble High Court was whether the project was completed by the assessee within time. The High Court noted that assessee had vide letter dated 05.11.2008 informed the authorities that the construction have been completed and further request was made for grant of completion certificate. However, no completion certificate was issued to the assessee and it was held by the Hon ble High Court non-obtaining of completion .....

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