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2014 (10) TMI 921 - ITAT PUNE

2014 (10) TMI 921 - ITAT PUNE - TMI - Claim relief under section 80 IB(10) - non-obtaining of completion certificate - 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 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 co .....

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ers. Other document viz. property 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 Honíble Delhi Hi .....

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assessee has raised the following grounds of appeal: 1. The Hon. CIT erred in holding assessee is not entitled to claim relief under section 80 IB(10)even though assessee satisfies all the requirement for grant of relief. 2. It may be held CIT(A) and A.O.'s orders are bad in law as they have failed to interpret provisions of sec.80 IB(10) correctly in accordance with law and decided cases. 3. Orders passed by A.O. and CIT (A) may be set aside and they be directed to accept the return of inco .....

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e assessee had claimed deduction under section 80IB(10) of the Act on the profits arising from the said project. During the course of assessment proceedings, the Assessing Officer requisitioned the assessee to submit the Completion Certificate of the project. In reply, the assessee furnished copy of the sanctioned plan and the architect certificate regarding completion of wings A, B, C and D of building Ujjwal Garden . The assessee was show caused by the Assessing Officer to explain as to why th .....

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pleted within the stipulated time. The assessee further made a reference to the Certificate of Architect, which in turn proved that the project was completed. With regard to the Completion Certificate, it was pointed out by the assessee that though the application had been submitted, but the Pune Municipal Corporation had not issued the Completion Certificate, against which the application had been made to the appropriate court. The Assessing Officer after considering the explanation filed by th .....

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e assessee had failed to complete the project within the stipulated time limit laid down in section 80IB(10) of the Act i.e. before 31.03.2008 and consequently, the deduction claimed at ₹ 7,79,060/- was denied to the assessee. 5. The CIT(A) upheld the order of the Assessing Officer observing as under: 3.3.4. On careful consideration of the facts as well as the documents placed on record, it is observed that the appellant has been claiming that the project is complete and the Assessing Offi .....

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out prejudice to the requirement of the law. It is observed from the documents submitted that the appellant is incorrect in claiming the project to be complete. Only because certain departments of the municipal authorities have certified that the relevant aspect of the project has been completed and also may be the flat owners have started living in the premise, but from that it cannot be said that the project is complete unless it could be shown that the project was really complete as required .....

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eing constructed w.e.f. different dates which are relevant for A.Y. 2006-07 and thereafter, the relevant portion is quoted below for ready reference : 2…. 3….. 4….. 5….. 6….. From the perusal of the above it is clear that the project was stopped from time to time during the previous year under consideration and therefore, the claim of the appellant that the project is complete is not factually correct. In view of the above, the finding given by the Assessing Of .....

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years 2005-06, 2006- 07 and 2007-08. The claim of the assessee was accepted by the Assessing Officer for assessment years 2004-05 and 2005-06 and the assessment order was passed under section 143(3) of the Act relating to assessment year 2005-06. However, the claim of the assessee under section 80IB(10) of the Act was for the first time rejected during the assessment year 2006-07 on the ground that the Completion Certificate from Pune Municipal Corporation had not been received within the prescr .....

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ng was fully occupied and corporation tax notice had been issued to the owners. Further, all the ancillary certificates from various departments had been received and even the Completion Certificate from the Architect was received. The learned Authorized Representative for the assessee explained the reasons as to why the Completion Certificate from the Pune Municipal Corporation was still pending. Reference was made to the civil suit filed in the case and our attention was drawn to the copies of .....

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ted out that in the absence of any Completion Certificate and also because the assessee had failed to file any application for the Completion Certificate, the assessee was not entitled to the claim of deduction under section 80IB(10) of the Act. In respect of letters received from the ancillary department, the learned Departmental Representative for the Revenue pointed out that the same were only recommendations and reliance was placed on the orders of the authorities below. 8. We have heard the .....

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see 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 assessee was accepted vis-àvis the deduction claimed under section 80-IB(10) of the Act. However, during the assessment proceedings, taken up for the year under appeal i.e. A .....

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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 the absence of any certificate from the Pune Municipal Corporation observed that the assessee failed to complete the project within the stipulated time prescribed in section 80-I .....

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ate 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. In respect of the completion certificate to be issued by the Pune Municipal Corporation, the learned Authorized Representative by the assessee admitted that no such certificate h .....

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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 only and work at all the other sites should not be stopped. The Civil Judge, Senior Division, Pune vide order dated 01.07.2006 lifted the restrain order passed by the Pune Municipa .....

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ande 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 Municipal Corporation and consequent thereto the completion certificate has not been issued to the assessee till date. 10. The issue arising in the present appeal is that where t .....

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ovisions 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 the it was a settled proposition of law that the law existing at the particular time would be applicable, unless and until it was specifically made retrospective by the legislat .....

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ourt 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 nonobtaining of completion certificate was not requirement to the projects which were approved prior to 01.04.205 when the amendment by the Finance Act, 2004 was made effective. 12. In the present case, th .....

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