TMI Blog2019 (7) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. Condonation of delay - delay of 92 days in filing the appeal and the CIT(A) dismissed the appeal in limine without giving opportunity to the assessee to explain the reasons - HELD THAT:- CIT(A) ought to have given opportunity to the assessee to explain the reasons for filing the appeal beyond the due date and decided the issue of condonation of delay. Therefore, we are of the considered opinion that it is against the principles of natural justice and hence, the issue should be remitted back to the file of the ld.CIT(A) to examine the reasons for delay in filing the appeal and to decide the issue of condonation of the delay and decide the appeal on merits depending on the outcome of condonation of delay. Thus, the appeal filed by the assessee is allowed for statistical purposes. Exparte appeal decided by CIT-A - HELD THAT:- In the instant case, appeal was decided exparte without giving opportunity of being heard to the assessee. AR stated that the said notice dated 10/03/2018 was not served on the assessee. For a query from the Bench, ld.DR did not place any evidence to show that the notice dated 10/03/2018 was served on the assessee. Therefore, in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions stipulated u/s.801B(10) of the I.T.Act have been fulfilled, the claim has to be allowed and it cannot be rejected for mere technical issues, if any. 6. The Learned CIT(A) ought not to have disallowed the deduction u/s.801B(10) of the IT Act merely considering that assessee could not produce completion certificate of the project when the CIT(A) was otherwise satisfied about the completion of the project. 7. The Ld.CIT(A) could not to have formed an adverse belief and reject the claim of deduction u/s.801B of the I.T.Act relying on the letter filed before A.O, wherein there appears to be a mistake of the year mentioned, when the evidences substantiate that the project was completed in the impugned Asst.Year, this way the assessee was entitled for the claim 8. For these and other reasons that are to be urged at the time of hearing of the case the appellant prays that the orders passed by the learned CIT(A) are against the facts of the case and provisions of law and therefore the same needs to be quashed in the interest of justice and fair play. 3. The assessee has raised total eight grounds in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derived from the project has to be brought to tax. The Assessing Officer found that the assessee did not file the returns of income for the A.Ys. 2008-09 onwards, thus, violated the conditions of section 80IB(10). Therefore, case was reopened u/sec.147 by issuing notice u/sec.148 on 04/11/2011 and called for explanation of the assessee as to why the deduction claimed u/sec. 80IB should not be disallowed. The assessee filed explanation objecting for reopening of assessment stating the project was completed within four years period as specified in the act and after verification of the fact of completion of the project, the Assessing Officer had allowed the deduction u/sec. 80IB in the original assessment, thus, objected for reopening of the assessment which was rejected by the Assessing Officer. The Assessing Officer examined the explanation furnished by the assessee during the original assessment proceedings and found that the assessee explained before the Assessing Officer at the time of original assessment that it was following percentage of completion method and claimed the deduction relying on the CBDT Instruction No. 04/2009 dated 30/06/2009. Accordingly the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not issue the completion certificate. As per clause (21) of Municipal Administration and Urban Development Rules, occupancy certificate is mandatory before occupying any person to such building. Since flats are occupied by the owners of the building, the building is deemed to be completed in all respects. The ld.AR further submitted that for obtaining occupancy certificate, sanctioning authority shall examine the number of floors constructed etc. and they are in accordance with rules or not? There was no provision in the Municipal Administration and Urban Development Rules for issuing completion certificate other than occupancy certificate, therefore, municipal authorities did not respond when a letter addressed to them for issue of completion certificate. Ld.AR further submitted that the Hon'ble ITAT, Visakhapatnam Bench in the case of M/s. Vishnu Builders Vs. ACIT in ITA No.178/VIZ/2011, dated 27/07/2011 has noted that there is no practice of issuing project completion certificate and considered the evidence of municipal tax assessments for date of completion of construction. The ld.AR heavily placed reliance on the decision of the Hon'ble ITAT, Visakhapatnam in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Visakhapatnam. To The Commissioner, GVMC, Visakhapatnam. Respected Sir, Sub:- Requisition for completion certificate of apartment buildings. We are requesting you to issue the completion certificate of our apartment buildings located in Survey No. 23/1 2 at Pothina Mallayya Palem, Visakhapatnam our accounts finalisation purpose. Sl.No. Name of the Buildings RC Nos. Survey No. 1 Aswini Arcade 427/99 23/1 2 2 Bhawana Arcade 422/99 23/1 2 3 Amritha Arcade 160/04 23/1 2 4 Keerthana Arcade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the site registers, containing inspection reports of Site Engineer, Structural Engineer Architect. The assessee did not place copy of building completion certificate issued by the Architect, structural stability certificate issued by the Structural Engineer, insurance policy for the completed building for a minimum period of 3 years, which are the conditions stipulated by the VUDA for issue of occupancy certificate. Apart from the above, the assessee also required to submit fire safety certificate from the Fire Department. Unless the assessee satisfies all the conditions imposed at page No.6, GVMC need not issue completion certificate. Letter dated 25/11/2008 annexed at page No.7 does not indicate having completed the project as per the plan according to the conditions. Completion certificate is not a formality but it is mandatory. Project completion certificate only shows whether project is completed in accordance with the plan issued by the local authority, whether all the conditions imposed in the sanctioned letter are completed or not? Unless the assessee complies with all the conditions required and furnish the check list, we are of the view that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the assessee s case. The assessee also relied on the decision of the Hon'ble Gujarat High Court in the case of CIT vs Tarnetar Corporation (26 taxmann.com 180) and the facts of the case are that The assessee had completed the construction two years before the final date and had applied for BU permission. Such BU permission was not rejected on the ground that construction was not completed, but some other technical ground. In that view of the matter, granting benefit of deduction cannot be held to be illegal.In the case of the assessee the assessee has not submitted any evidence to show that the assessee had complied with the terms and conditions imposed by the VUDA in the sanctioned plan dated 17/11/2005. The assessee not even filed an evidence to show that it had applied for completion certificate for granting the deduction u/s 80IB which is a mandatory requirement. Therefore, the case-law relied on by the assessee is no way helpful to the assessee. The other contention of the Ld.AR is that there is no rule to issue completion certificate in the Municipal Administration and Urban Development Rules and the revenue cannot e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within four years 4 years or on completion of the project. The coordinate bench relying the CBDT circular held that in percentage completion method of accounting it is not mandatory to submit the completion certificate every year and it is sufficient to submit the completion certificate within the specified time as per the act. For the sake of convenience, we extract the relevant part of the order of the ITAT, Hyderabad [(2013) 37 CCH 94 (Hyd-Trib.)] the case cited (supra):- 16. The meaning of date of completion has been given in Explanation (ii) to clause (a) to section 80IB(10). Date of completion of construction would mean date on which completion certificate in respect of housing project was issued by the local authority. To grant deduction u/s. 80IB(10) it is mandatory to furnish the completion certificate of the housing project but the persistent question here is whether for giving benefit of deduction u/s. 801 B(10), where an assessee is following the percentage completion method is it necessary to obtain such completion certificate for each year of assessee s claim or it is sufficient that certificate is obtained on the completion of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the project as a whole, there should be certification from the relevant authority proving the commencement and completion, and not that a completion certificate should be there in every year of the project span. The certifications are for ensuring that the project span does not exceed the prescribed period and nothing more. Of course if such period exceeded the prescribed limit, Revenue would be well within its rights to withdraw the claims already allowed, following the procedure prescribed under the Act. Thus, the Assessing Officer cannot insist on the completion certificate in the impugned year. This view has also been taken by CBDT in its Instruction No. 4 of 2009 dt. 30.6.2009, paras 2 to 4 of which are reproduced hereunder: 2. Clarifications have been sought by various Chief CITs on the issue whether the deduction under s. 801B(10) would be available on a year-to- year basis where an assessee is showing profit on partial completion or if it would be available only in the year of completion of the project under s. 80 IB( 10). 3. The above issue has been considered by the Board and it is clarified as under: (a) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e held to be completed in all respects and the project completion certificate is mandatory. Accordingly, we uphold the order of the ld. CIT(A) and dismiss the appeal of the assessee. ITA No. 108/VIZ/2019 12. There was a delay of 92 days in this case. The appeal is related to the order passed by the Assessing Officer u/sec. 115WE (3) r.w.s. 115WG of the Act. The AO assessed the total fringe benefits of ₹ 7,23,853/- and determined the tax payable of ₹ 6,22,470/-. 13. The assessee went on appeal before the ld. CIT(A) and the ld. CIT(A) dismissed the appeal of the assessee in limine without giving opportunity to the assessee, hence, assessee is in appeal before this Tribunal. 14. During the appeal hearing, ld.AR argued that the ld. CIT(A) taken a decision to dismiss the appeal in limine without giving opportunity to the assessee. As per column 15 of Form No.35, the assessee had attached the reasons for delay in filing the appeal, which was not considered by the ld. CIT(A). Therefore, ld.AR requested to remit the matter back to file of the ld. CIT(A) to condone the delay and to decide the appeal on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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