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2014 (4) TMI 1175 - ITAT LUCKNOW

2014 (4) TMI 1175 - ITAT LUCKNOW - TMI - Claim for exemption under section 80IB(10) - requisite "completion certificate" had not been obtained and submitted - Held that:- The assessee could not establish that it has made application to the concerned authority for completion of project on 14/03/2008. In fact, we have noted that as per the documents available on page No. 109, it appears that this application dated 14/03/2008 was in respect of construction of project to be done and not for any comp .....

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tment has not accepted this Tribunal order and filed an appeal before Hon'ble High Court, this ground has been raised by the Revenue. Since the issue involved in the Revenue’s appeal is covered against the Revenue, we, decline to interfere in the order of learned CIT(A) on this aspect. In the result, the appeal of the Revenue is dismissed. - ITA No. 319/LKW/2013, C.O. No. 18/Lkw/2013 (in ITA No. 319/LKW/2013) - Dated:- 11-4-2014 - Sunil Kumar Yadav (Judicial Member) And A. K. Garodia (Accountant .....

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ble ITAT in assessment years 2005-06, 2006-07 and 2007-08 for holding that the assessee fulfilled the condition laid down in section 80IB(10)(b) regarding area of the plot of land being minimum one acre without appreciating the fact that the assessee as a builder had undertaken three plots on which the housing project was started and that was not a single plot having a minimum area of one acre. 2. Appellant craves leave to add or amend the ground of appeal, as stated above as and when need of do .....

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isputed facts of the case, as have been so noted also by the CIT(A), to the effect that:- (a) the housing project in the name of Fortuna Apartment, had duly been completed/executed by 31.03.2008, which was the stipulated date for completion of the project in the instant case; (b) such completion stood fully proved, besides others, by the fact that the site plan of the project (which contained certain deviations), had duly been submitted before the Lucknow Development Authority the designated aut .....

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at essence of the requirement of section 80IB(10) had duly been complied with and the respondent/assessee had become eligible for exemption there under. 3. BECAUSE the certificate dated 23.10.2009 as had been issued by Lucknow Development Authority, after complying with the provisions as laid down in section 15A of Uttar Pradesh Urban (Planning & Development) Act 1973 related back to the completion of project on 14.03.2008 and in any case to the date on which formal application for obtaining .....

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me, while upholding ''denial" of respondent/assessee's claim for exemption under section 80IB(10). 5. BECAUSE "denial" of respondent/assessee's claim under section 80IB(10) was not in accordance with letter and spirit of the said provision of law, as had come to be interpreted in large number of case laws, and on a due consideration of the same, the respondent/assessee's claim deserves to be allowed. 4. It was submitted by learned A.R. of the assessee that the .....

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ch is available on page Nos. 113 to 141 of the paper book, he submitted that it is noted by the Tribunal in this order also that as per the Tribunal decision in assessee s own case for earlier years i.e. assessment year 2005-06 and subsequent year i.e. assessment year 2007-08, the issue under dispute was decided by the Tribunal in favour of the assessee and it was held that the project was completed prior to 31/03/2008. In this regard, he drawn our attention to Para 14 and 15 of the Tribunal ord .....

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igh Court that when the assessee has applied for due permission prior to 31/03/2008, the assessee is eligible for deduction u/s 80IB(10) of the Act. He submitted that in the present case, application was made by the assessee on 14/03/2008 as per the copy available on page No. 108 & 109 of the paper book and therefore, by following this judgment of Hon'ble Gujarat High Court, deduction should be allowed to the assessee. He also submitted a copy of the judgment of Hon ble Delhi High Court .....

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ent order. 6. We have considered the rival submissions, perused the material available on record and the judgment cited by Learned A.R. of the assessee. First of all we reproduce the relevant paras of the Tribunal order for assessment year 2006-07 (supra). These paras are Para No. 16 to 21 and the same are reproduced from page No. 134 to 139 of the paper book: 16. Therefore, whatever findings are given by the Tribunal in assessment years 2005-06 and 2007-08 with regard to the completion of proje .....

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project is issued by the local authority i.e. LDA. The ld. CIT(A) has also given a finding that the completion certificate was sought the assessee in the name of Shri Karuna Shanker Dubey, who was expired long back and the certificate was also issued in his name. Therefore, the certificate has no evidential value and cannot be relied upon for the purpose of determining the date of completion of the housing project. In the light of these facts, the issue with regard to the date of completion of .....

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year, but the rule of consistency should be followed, if a particular view is taken by the Tribunal in a particular year with respect to certain facts, the same view should be followed in succeeding years unless and until the facts are changed. In the instant case, the earlier view of the Tribunal is based on assumption of facts whereas in the instant assessment year, the relevant facts are placed before the Tribunal. Therefore, the Tribunal is not supposed to follow its orders of earlier years .....

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utedly completion certificate was issued by the local authority, though in the name of a dead person, on 23.10.2009. For claiming deduction under section 80IB(10) of the Act, the housing project should have been completed before 31.3.2008 as per provisions of section 80IB(10)(a)(i) of the Act. The relevant clause 80IB(10) and Explanation are extracted hereunder for the sake of reference:- [(10) The amount of deduction in the case of an undertaking developing and building housing projects approve .....

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1st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004, [but not later than the 31st day of March, 2005] within four years from the end of the financial year in which the housing project is approved by the local authority; (iii) in a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in whic .....

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respect of such housing project is issued by the local authority; 19. For claiming deduction under section 80IB(10) of the Act, the assessee is required to fulfill basic requisite conditions that the housing project should have been approved before 1st April 2004 and should have been completed before 31.3.2008. If any of the condition is not fulfilled, the assessee would not be entitled for deduction under section 80IB(10) of the Act. With respect to the approval of the housing project, there i .....

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mission that on 14.3.2008 an application was filed for seeking permission for compounding with regard to the additional construction and on this application the assessee was asked to deposit Rs. 75,000 by the LDA. There is one more letter of the LDA on the same date, available at page No.24 of the compilation of the assessee, from which it is evident that some map approval of design was received and through this letter it was informed to the assessee that the assessee has to contact the competen .....

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ng at page 26 of the compilation of the assessee. In this certificate, a reference was made to a permit No.24939, dated 6.11.2008. Though this letter may be issued to a dead person, but it has its own evidentiary value with regard to the completion of the project. In this certificate, a reference was made to a permit No.24939, dated 6.11.2008, meaning thereby the process of completion of the project was not finalized till 6.11.2008 and some permit number was issued. From a careful perusal of thi .....

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t and through its Explanation (i) it has been made clear that the date of completion of construction of housing project shall be taken to be date on which completion certificate in respect of such housing project is issued by the local authority. Therefore, there is no iota of doubt in the interpretation of Explanation below section 80IB(10) of the Act and according to the said Explanation, the date of completion of the project in the instant case shall be taken to be the date of issuance of com .....

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sessee s own case for assessment year 2005-06 and 2007-08, it was held by the Tribunal that these Tribunal orders are distinguishable and therefore, cannot be followed and thereafter, the Tribunal has decided the issue against the assessee after examining the factual position and all the judgments available upto that time. Hence, in the present case, the issue regarding allowability of deduction to the assessee u/s 80IB(10) is covered against the assessee by this Tribunal order rendered in asses .....

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jected on 01/07/2006. On the basis of these facts, it is observed by Hon'ble High Court that such permission was not rejected on the ground that the construction was not completed but it was rejected on some other technical ground. Thereafter, it was held that in this view of the matter, granting benefit of deduction cannot be held to be illegal. In the present case, the facts are different. In the present case, it is the claim of the assessee that application for B.U. was made by the assess .....

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4/2008 between 12 to 2 P.M. for receiving objections u/s 15(3), if any, or further information in this regard, failing which, this application may get rejected. He also specified that in case the application is found to be fit for construction, the assessee will be required to deposit Malba Charges, water charges etc. by a specified date which will be prior to 08/04/2008. These notings on page No. 109 goes to show that this application submitted by the assessee on 14/03/2008 is not for B.U./ com .....

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s prior to 31/03/2008 on a different basis as in the case of CIT vs. Tarnetar Corporation (supra). Therefore, in the facts of the present case, this judgment of Hon'ble Gujarat High Court is not rendering any help to the assessee. 6.3 Now we examine the applicability of judgment of Hon'ble Delhi High Court cited by learned A.R. of the assessee. As per Para 10 of this judgment, we find that it is noted that approval for the project was given by Mathura & Brindavan Development Authorit .....

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and Hon'ble Karnataka High Court. The judgment of Hon'ble Gujarat High Court referred to by Hon'ble Delhi High Court is the judgment rendered in the case of Manan Corporation, 29 Taxman 15. In that case, the issue in dispute before Hon'ble Gujarat High Court was regarding restriction of commercial construction to the extent of 3% of the total built up area or 5,000 sq. ft., whichever is higher. In respect of this restriction, it was held that the same has to be applied prospecti .....

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High Court is not applicable in the present case. The judgment of Hon'ble Karnataka High Court referred to by Hon'ble Delhi High Court is the judgment rendered in the case of COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE vs. ANRIYA PROJECT MANAGEMENT SERVICES (P.) LTD. [2012] 209 Taxman 0001. In this case also, the dispute before the Hon'ble Court was regarding calculating the area of residential unit i.e. 1,500 sq. ft. and not regarding the completion of the project before 31/03/2008 .....

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