TMI Blog2016 (12) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act . Thus the assessment framed by the AO was correct and was wrongly set aside by the Commissioner by exercising revisionary jurisdiction/powers u/s 263 of the Act. The case of the assessee is also supported and squarely covered by the decision in the case of Hindustan Samuh Awas Ltd (2015 (10) TMI 2306 - BOMBAY HIGH COURT ) in which the Hon’ble Bombay High Court has held that even if the project is part completed and was granted completion certificate for the work completed, the assessee is entitled for claiming benefit u/s 80IB(10) of the Act - Decided in favour of assessee - I. T.A. No. 3631/Mum/2014 - - - Dated:- 15-12-2016 - Shri Amit Shukla, JM And Shri Rajesh Kumar, AM Assessee by : Shri Vipul Joshi Revenue by : Shri Deepkant Prasad ORDER Per Rajesh Kumar, AM This is an appeal filed by the assessee challenging the order of Commissioner of Income Tax-15, dated 21.3.2014 passed under section 263 of the Income Tax Act, 1961 (hereinafter called the Act) in violation of principle of natural justice. 2. Brief facts of the case are that the assessee filed its return of income on 31.07.2009 declaring a total income at NIL by claiming deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B (a) is as under : (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; 4. As Sec 801B(10) is a provision for deduction/exemption, it has to be construed strictly. It is the duty of the assessee to make a claim for exemption and place relevant materials before the AO in support thereof and to prove that his case falls within the exemption (87 ITR 556) (Cal). 5. It is seen that in this case, the local authority has issued a commencement certificate for the project in Pune at Neco Hillscape survey No.62/2 and 62/4, Kondhwa Khurd, Behind Sheetal Petrol Pump, Mumbai-400048 on 24.12.2000 and 5.7.2006. Thus it is case covered by explanation (ii) of the section 80IB quoted above. This aspect has not been examined at all by the AO during the assessment proceedings f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment proceedings of the assessee, I consider that the assessment order passed by the ITO ward 15(1)( 4), Mumbai is erroneous in so far as it is prejudicial to the interest of revenue in the assessment year 2009-10. You are hereby given an opportunity of being heard to state as to why order u/s 263 (1) may not be passed in the circumstances of the case. You may, therefore, appear either through authorized representative or otherwise at my office on 15.1.2013 at 3.00 pm and state your case Sd/- ( PRADEEP SHARMA) Commissioner of Income tax-15, Murnbai. 3. In reply to the above notice, the assessee submitted that the plan was approved by the Pune Municipal Corporation on 29.11.2001 for a construction of three buildings with ground floor plus four floors has granted to M/s Badshah Enterprises for 50 flats. However, due to some reasons, the project was abandoned by the said firm and the assessee- firm after coming into being re-submitted fresh plan on 15.4.2006 that 50 flats comprising of three buildings and commencement certificate was given to the assessee by Pune Municipal Corporation on 5.7.2006. Thereafter the assessee further revised the plan to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-application of mind on the part of the assessing officer. Thereafter, the ld.CIT after relying on various decisions as recorded in para 12 to 27 of the appeal order came to the conclusion that the order passed by the AO was erroneous and prejudicial to the interest of the revenue and therefore the same was required to be set aside and accordingly set aside with a direction to pass fresh assessment order. 5. The ld.AR vehemently submitted before us that the assessee had rightly claimed deduction u/s 80IB of the Act qua the profit earned by the assessee from housing project as the assessee had fulfilled all the conditions as envisaged u/s 80IB(10) of the Act. The ld.AR submitted that the assessee moved a revised plan for 84 flats in three buildings with seven floors which was approved by the Pune Municipal Corporation and completion was granted vide letter No.DPO/SEC 6/0231/07/203 dated 31.3.2008. However, the Pune Municipal Corporation granted completion partially thereby withholding the completion certification ( BHOGVATA PATRA ) in respect of 12 flats on the 7th floor for the reasons that the proposed road widening on the project land which was yet to be done by Pune Munic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned department placed at pages 46 to 67 of the paper book which corroborated the averments of the assessee that the construction was completed before 31.3.2008. The observations of the Commissioner that the assessment order was erroneous and prejudicial to the interest of the revenue on the ground that the claim of deduction u/s 80IB(10) amounting to Rs. ₹ 3,97,68,224/- was wrongly allowed to the assessee was altogether misconceived and based upon incorrect appreciation of facts on records. 6. In para 7 of the notice , the Commissioner observed that assessee did not furnish form no. 10CCB in the prescribed proforma, duly certified and signed by the CA which was one of the basic conditions for claiming deduction u/s 80IB(10). The commissioner of income tax had also observed and noted that column No.26 in form 10CCB was mentioned as NIL with regard to details of deduction admissible under chapter VIA. The ld counsel for the assessee submitted that the column was marked as NIL because it was meant for deduction u/s 80IB(a)(4)(2) of the Act whereas the claim of the assessee was duly mentioned in column 27 which reflected the amount of deduction claimed u/s 80IB(10). The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partments like Fire Department dated 21.1.2008, Water supply department dated 31.1.2008, authority for tree growth dated 12.3.2008, Accompanied letter dated 13.3.2008, Health care dated 24.3.2008, Letter for lift permission dated 26.3.2006 and final certificate from Fire Department dated 29.3.2008. All these NOC s were obtained prior to 31.3.2008 and submitted to Pune Municipal Corporation for issuing final completion certificate qua 84 flats. Thereafter Pune Municipal Corporation issued Bhogvatapatra dated 31.3.2008 which was a completion certificate in respect of 72 flats only up to 6th floors. According to the CIT only part completion of the project was granted thereby withholding the completion qua 12 flats on the 7th floor of all the three buildings on the ground that road widening on the side of the project was yet to take place which was to be done by the Municipality. We find merit in the submissions of the ld.AR that the delay in issue of completion certificate qua development of flats was on the part of the Pune Municipal Corporation who failed to take possession of the land for widening the road and consequently withheld the NOC for 12 flats on the 7th floor. A perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audit report of form No.10CCB the column was marked as NIL as the assessee had not claimed any deduction u/s 80IB(3,4,5 and 7) whereas column No.29 and 30 were duly filled in and ₹ 4,12,60,224/- was mentioned as claim of deduction u/s 80IB(10) of the Act which appears to be correct. We also find that there was a certificate appended by the Auditor at the end of the said form in respect of the claim under section 80IB(10) of the Act . In view of the facts and circumstances, hereinabove, we are of the considered view that the assessment framed by the AO was correct and was wrongly set aside by the Commissioner by exercising revisionary jurisdiction/powers u/s 263 of the Act. Besides the case of the assessee is also supported and squarely covered by the decision in the case of Hindustan Samuh Awas Ltd(supra) in which the Hon ble Bombay High Court has held that even if the project is part completed and was granted completion certificate for the work completed, the assessee is entitled for claiming benefit u/s 80IB(10) of the Act. The relevant portion of the judgment of the Jurisdictional High Court in the case of Hindustan Samuh Awas Ltd (supra) is reproduced below: 10. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal authority along with such certificate well in time on 25.03.2008. It seems that the Municipal authorities directed the respondent to deposit certain amount for issuance of Completion Certificate on 27.03.2008 and the amount was accordingly deposited on 31.03.2008. Thereafter, the certificate was issued in October, 2008. This delay cannot be attributed to the respondent assessee. 13. In view of this, we are inclined to hold that the project, for which exemption is sought, was completed prior to 31.03.2008 and therefore, we are inclined to record our answer in affirmative to the substantial question of law referred to above. Both the appeals are accordingly dismissed. In the case of the assessee also the construction of flats was completed before 31.3.2008 and the assessee applied for issue of completion certificate after obtaining necessary NOCs from various Govt authorities and therefore the case of the assessee is squarely covered by the ratio laid down in the above decision. Accordingly we are inclined set aside the order of CIT and uphold he assessment framed by the AO. 9. In the result, the appeal of the assessee is allowed. Order pronounced in the open co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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