TMI Blog2017 (3) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... s not applicable. Further more learned counsel has contended that the payments for the said flats were duly received prior to the applicability of the concerned provision. Alternatively learned counsel of the assessee has placed reliance upon the decision of Hon’ble High Courts where it has been held that in all fairness the claim of the assessee with regard to proportionate relief has to be read into the provisions so that deduction provisions are sustained and denial of the entire claim on the basis of some units which had not complied with the conditions is not justified. Direct the AO to examine the contentions of the assessee and if required, disallow the exemption qua the sale of flat which is attracted by the concerned provisions. - Decided in favour of assessee for statistical purposes. - I.T.A. No. 285/Nag/2015 - - - Dated:- 18-1-2017 - Shri Shamim Yahya, Accountant Member Appellant by : Shri Manoj Moryani Respondent by : Shri A.R. Ninawe ORDER This appeal by the assessee is directed against the order of learned CIT(Appeals)-I, Nagpur dated 30-07-2015 and pertains to assessment year 2012-13. The ground of appeal reads as under : The learned C.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents in the form of Gram-panchayat tax receipts, NOC for electrical connection, valuation certificate issued by the architect for financing loans, possession letter etc. as a proof of the project having been completed before 31-03-2011. The AO in this regard also contended that the appellant could not make application of completion of housing project within time due to absence of appropriate authority. The AR thus, contended that there is no violation of section 80IB(10) of the Act. 5.0 I have carefully considered the submissions of the AR of the appellant, the order of the AO and the material on record. It is not disputed that the appellant has not furnished the completion certificate in respect of the housing project in question. The furnishing of information in Form No. 10CCB in respect of the housing project is mandatory to claim the deduction u/s 80IB(10). However, the form submitted by the appellant was incomplete and did not provide any information as regards to the date of completion of the housing project. The appellant has commenced the housing project after obtaining necessary approval from the Gram-panchayat on 02,03.2006 and accordingly, the housing proje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s incomplete during the FY 2010-11 by which the project had to be completed. The above expenses indicated that the major works were still contained in the FY 2011-12 and the project was incomplete within the period by which the assessee had to completed its housing project and therefore no completion certificate was issued by the local authority and hence the firm was not eligible for benefit of provisions of section 80IB(10) of the Income Tax Act. 5.4 It is quite manifest from the above finding recorded by the AO that the housing project was not completed by the prescribed due date of 31.03.2011. It is thus seen that the conditions stipulated u/s 80IB(10) does not sustain. I therefore, decline to interfere with the order of the AO and the disallowance made of ₹ 42,20,301/- is confirmed. 4. Against the above order the assessee is in appeal before the ITAT. 5. Learned counsel of the assessee submitted that the concerned housing project was approved by the Gram Pnchayat on 02-03-2006. He further submitted that the assessee has submitted that the housing project was completed on 15-02-2011 but the authorities below have drawn adverse inference that the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 98 to 106 Valuation report for Union Bank for Mahendra Karemore dated 04-12-2011 PB 107 to 113. Valuation Report fior Union /Bank of India for Vinod Wankhede dated 29-11-2011. PB 114 to 122 Copy of paper cutting of Nav Bharat dated 05-07-2010. PB Page 123. Copies of Sale Deed alongwith Valuation Report Of Bungalow No. 9 alongwith NOC, Photographs PB Page 124 to 163. Copy of Sale Deed alongwith Valuation Report of Bungalow No. 17 alongwith NOC, Photographs. PB Page 164 to 206. Further more learned counsel placed reliance upon several case laws as under : 1. Judgement of ITAT, Nagpur Bench fsyrf 24-11-2015 in ITA No. 35 36/Nag/2014 in the case of ITO vs. M/s Swapnashilp Developers. 2. Judgement of Hon ble High Court at Bombay, Nagpur Bench, Nagpur dated 24-10-2016 vide Income Tax Appeal No. 25 26 of 2016 in case of Pr. CIT vs. M/s Swanashilp Developers. 3. CIT vs. Cajetano Mario Pereira (2014) 88 CCH 152 (HC Mumbai). 4. Judgement of ITAT, Pune Bench dated 27-05-2014 in ITA No. 667/PN/2013 in the case of Hiraman Nivrutti Bhujbal vs. ITO. 5. Vertex Home P. Ltd. vs. DCIT (2015) 43 ITR (Trib) 340 (Hyd.) 6. Patel J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction was granted and the Gram Panchayat tax had also been deposited. The assessee has also placed on record a detailed map of the plots which were developed and informed that the said development plan was also sanctioned by the authority. Our attention has also been drawn on The Bombay Village Panchayat Act, 1958 which has provided that sanction of construction of building within the limits of village has to be granted by the Panchayat. So, the argument before us is that the village Panchayat is a local authority, therefore, competent to approve a housing project. On this issue, a judgement has been passed by ITAT Nagpur Bench, Nagpur in the case of ACIT vs. M/s Chintamoni Builders, order dated 30-10-2015 wherein a discussion of The Bombay Village Panchayat Act, 1958 was made and it was found that the sanction of the construction of a building being situated within the limits of village, the approval has to be granted by the Panchayat. Because of that reason, it was held that the Village Panchayat is a local authority. Relevant portion of the said order is reproduced below: 6. As far as the issue whether the Gram Panchayat is local authority or not, the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant Revenue that in similar matters in respect of other development projects, this Court has admitted the appeals on two substantial questions of law and, therefore, these appeals should be admitted is not well founded. We have perused Income Tax Appeals Nos. 16/2016, 17/2016 and 20/2010. In the said appeals, it was the case of the Revenue that there was no permission from the Loal Authority for the development of one acre of plot and separate permissions were secured for construction of houses of individual plot owners. Also, in those appeals it was the case of the Revenue that the housing project was not completed within the time prescribed under Section 80IB(10) of the Act. Such is not the case here. In the present matters, both the Authorities have concurrently recorded a finding of fact that the development of the housing project was completed within the time prescribed under Section 80IB(10) of the Act. In the admitted appeals, though it was sought to be canvassed on behalf of the Revenue that Grmm Panchyat, Besa was not the local authority , a substantial question of law was not framed in that regard. We further find from a reading of the judgment in the cse of Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
