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TMI Blog2017 (3) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... t certificate from Pune Municipal Corporation (PMC) in respect of housing project in question on 27-07-2006. Permission for use of land for Non- Agriculture (NA) purpose was received by assessee on 11-06- 2007. The assessee took 11-06-2007 as date of commencement. For claiming deduction u/s. 80IB(10) the project was to be completed within 5 years from the end of the financial year in which the housing project was approved. Thus, according to the assessee the due date for completion of project to be eligible to claim deduction was before 31-03-2013. The Assessing Officer rejected the plea of assessee on the ground that since Pune Municipal Corporation had granted commencement certificate to the assessee on 27-07-2006, therefore, to be eligible to claim deduction u/s. 80IB(10) the assessee should have completed the housing project on or before 31-03-2012. Since, the assessee could not obtain final occupancy certificate from the local authority till 31-03-2012, the assessee is not entitled to the benefit of deduction u/s. 80IB(10) of the Act. ii. The provisions of section 80IB(10) does not allow for proportionate deduction, even if the assessee has obtained completion certificate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee without appreciating that the claim of deduction u/s. 80(IB) was liable to be withdrawn even as per the circular of the CBOT dated 30th June 2009 as the project was not completed before 31- 03-2012. 6. The appellant craves leave to add, alter or amend any or all the grounds of appeal." 4. Shri Hitendra Ninawe representing the Department submitted that the assessee is not eligible to claim deduction u/s. 80IB(10) of the Act in respect of housing project as the assessee has not received completion certificate in respect of entire 128 flats comprising in Buildings A and B of the housing project. The completion/occupancy certificate has been granted in parts to the assessee and in some of the instances the completion/occupancy certificate for the flats has been issued after the due date i.e. 31-03-2012. The Assessing Officer vide letter dated 21-03-2013 sought clarification from the office of PMC regarding the status of occupancy certificate in respect of housing project under question. The PMC vide letter dated 25-03-2013 informed that completion/occupancy certificate in respect of 32 flats (10 flats in Wing A and 12 flats in Wing B) have not been issued. Where occupa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te in respect of remaining flats. The PMC vide occupancy letter dated 27-12-2013 issued occupancy certificate in respect of 3 flats in Wing A and 16 flats in Wing B (total 19 flats). Occupancy certificate in respect of 13 flats is still pending. The PMC withheld issuing of completion certificate in respect of these 13 flats for providing space for amenity i.e. setting up of telephone exchange. The assessee has offered another area for relocating telephone exchange and release of 13 flats. The PMC has neither declined the offer nor has it accepted it. Except for reserving the designated space for amenities, there is no other reason for withholding completion / occupancy certificate of these 13 flats. Initially, 72 flats were withheld. Subsequently, based on the completion certificate issued by the assessee's Architect dated 20-03-2012 the PMC released 40 flats on 27-07-2012 and again on 27-12-2013 the PMC released 19 flats. Withholding of completion/occupancy certificate in respect of said flats by PMC to set up telephone exchange does not mean that the said flats are incomplete or that the project was not complete. The housing project is complete in every respect and the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -03-2013. Thus, in view of our above findings the ground No. 2 raised in the appeal by the Department is dismissed. 8. The housing project of the assessee was approved for total 128 flats. 72 flats in Building A (Wings A and B) and 56 flats in Building B (Wings C and D). Undisputedly, the assessee completed 56 flats in Building B and obtained occupancy certificate in respect of said flats on 31-03-2010. The dispute is with respect to the date of completion of 72 flats in Building A (36 flats each in Wings A and B). The ld. AR of the assessee has drawn our attention to the completion certificate dated 20-03-2012 issued by the Architect of the project at pages 68 and 69 of the paper book. A perusal of the said completion certificate shows that the Architect under whose supervision housing project is constructed, had certified that 36 flats in Wing A and equal numbers of flats in Wing B including lower and upper parking are complete. Thus, it is evident that the assessee had applied for issuance of occupancy certificate in respect of 72 flats of Building A, well before the due date. The PMC granted partial occupancy letter in respect of 40 flats, i.e. 26 flats in Wing A and 14 flats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected on the ground that construction was not complete but on some other technical ground the benefit of deduction u/s. 80IB(10) should not be denied to the assessee. 11. The Hon'ble Gujarat High Court in the case of Income Tax Officer Vs. Saket Corporation reported as 234 Taxman 435 has taken a similar view. The Hon'ble Court held, that where the assessee had completed its entire housing project and applied for building houses/completion certificate within prescribed time limit, it would be entitled to deduction u/s. 80IB(10) not-with-standing the fact that it could not receive permission for its entire project. 12. The decision of Lucknow Bench of the Tribunal on which the ld. DR has placed reliance is distinguishable on facts. In the said case the Tribunal disallowed the benefit of deduction u/s. 80IB(10) to the assessee as no inference could be drawn from the completion certificate with respect to completion of housing project before the due date. In so far as the ratio laid down in the case of Commissioner of Income Tax Vs. Global Reality (supra) is concerned, the same would not be applicable in view of the decision of Hon'ble Jurisdictional High Court in the case of Commis ..... 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