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TMI Blog2019 (11) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, the date of approval was amended to 03.10.2005. Noticing the above, the Assessing Officer called upon the assessee to justify its claim of deduction, since according to him, only if the housing project is approved and is commenced after 1.10.1998, it will be eligible for deduction under section 80IB(10). In response, it was submitted by the assessee, though, the approval by the CIDCO was vide commencement certificate dated 06.09.1991 however, subsequently, it was revalidated on 03.10.2005. Thus, it was submitted, since, the approval for housing project was granted on or after 01.10.1998, it would be eligible to claim deduction under section 80IB(10). The Assessing Officer, however was not convinced with the submissions of the assessee. Referring to explanation(i) to section 80IB(10) he observed, the date of first approval of the housing project has to be reckoned as the date of approval in respect of housing project where there is more than one approval. Based on the aforesaid reasoning the Assessing Officer ultimately held that since, the housing project was approved by the local authority prior to 01.10.1998, the assessee would not be eligible for claiming deduction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowing assessee's claim of deduction under section 80IB(10) of the Act. Thus, he held that the assessment order is erroneous and prejudicial to the interest of the revenue. As regards the merits of assessee's claim of deduction under section 80IB(10) of the Act, he observed that the commencement certificate from the local authority for the housing project was obtained on 06/09/1991 and later on the land owner received further commencement certificate from the local authority on 25.08.1992. He observed, the local authority, while granting amended approval on 03.10.2005 did not issue any separate commencement certificate. Thus, he observed, the housing project having commenced before 01.04.2004, as per the provision of section 80IB(10), the project should have been completed on or before 31.03.2008 to entitle the assessee to claim deduction. Learned PCIT observed, since, the basic conditions of section 80IB(10) were not fulfilled in respect of the housing project, it would not qualify for benefit under section 80IB(10) of the Act. Based on the aforesaid reasoning, learned PCIT proceeded to cancel/set aside the impugned assessment order in exercise of power under section 263 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Departmental Representative strongly relying upon the observations of learned PCIT in the order passed under section 263 of the Act submitted, in spite of specific direction by the Tribunal, the Assessing Officer did not conduct proper enquiry to verify correctness of assessee's claim of deduction under section 80IB(10) of the Act. She submitted, the issues which the Assessing Officer was required to examining were purely factual and required proper enquiry by the Assessing Officer to ascertain the correct facts. Drawing our attention to the assessment order she submitted, the Assessing Officer has not even mentioned a single word with regard to assessee's claim of deduction under section 80IB(10) of the Act. He submitted, the Assessing Officer has passed the assessment order allowing assessee's claim of deduction mechanically without making any enquiry and without application of mind. Thus, she submitted, the allowance of assessee's claim of deduction under section 80IB(10) of the Act without verifying whether the basic conditions of the provision were fulfilled or not has made the assessment order erroneous and prejudicial to the interest of the revenue. Therefore, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate in respect of the housing project is issued by the local authority. The authorities below have proceeded with the matter on a wrong presumption and incorrect basis. The condition for commencement is a primary condition and if the project is found commenced prior to 1.10.1998, it would not be entitled for deduction under section u/s 80-IB(10), at the threshold without going into the other condition prescribed under the other clauses of section u/s 80IB(10). We note that there was some dispute at the time of original approval granted by the CIDCO on 6.9.1991 on the point of development charges as well as theatre and shops in the development plan. Accordingly, the original owner of the land in question challenged the action of CIDCO rejecting the modified development proposal vide order dated 18.06.1998 by filing the appeal u/s 47 of the Maharashtra Regional and City Planning Act 1966. The appeal was decided by the appellate authority on 8.9.1999. In pursuant to the order of appellate authority, the amended approval certificate dated 3.10.2005 was issued by the CIDCO. From the perusal of the order dated 8.9.1999, we find that there was some construction in the project prior to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the land which was rejected by CIDCO vide order dated 18/06/1998. The aforesaid observation of the Tribunal assumes considerable importance as the commencement of the housing project post or prior to 1/10/1998 will have a crucial bearing in deciding the legibility of the assessee in availing deduction under section 80IB(10) of the Act. Further, the actual date of completion of project is also very much relevant for fulfillment of the other condition of section 80IB(10) of the Act. Though, it is the say of the assessee that both the aforesaid conditions have been fulfilled, however, reading of the impugned assessment order does not throw any clarity on the assessee's claim as the Assessing Officer has not at all recorded any factual finding regarding fulfillment of basic conditions of section 80IB(10) of the Act. The assessment order passed is very cryptic and without any discussion. The Assessing Officer has passed the order in a summary manner allowing assessee's claim of deduction under section 80IB(10) of the Act. Though, the Assessing Officer has referred to certain submissions made by the assessee on different dates, however, he has not made any discussion about the enq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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