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TMI Blog2018 (12) TMI 1823X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-11 wherein ITAT has given a finding of fact that the project has been completed within the stipulated time limit of 31.03.2013 and there is no violation of any of the conditions mentioned in the proviso of section 801B(10) of the Act, which order has not been accepted by the department and appeal filed before the High Court on the ground that ITAT has not recorded reasons of satisfaction before admitting and allowing new additional documents produced by the assessee for the first time, as envisaged in Rule 29 of the ITAT Rule,1963. 3. For the above mentioned reason and any other reasons that may be urged at the time of hearing, it is requested that the order of the CIT(A) be quashed and that of the A.O. be restored. 4. The appellant craves leave to amend or alter any ground or add a new ground, which may be necessary." 2. Rival contentions have been heard and record perused. 3. Facts in brief are that the assessee firm e-filed its return of income for A.Y.2012-13 on 28,09.2012 declaring total income of Rs. 4,66,500/-. Subsequently, it filed a revised return on 5.8.2013 declaring total income of Rs. 6,08,02,250/- by withdrawing the deduction claimed in the original return u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee for two reasons i.e. (1) that the completion certificate was not produced before him and (2) that the L[ant had filed a revised return on 5.8.2013 for A.Y.2012-13 withdrawing the claim u/s.801B(10). He also made a mention that the assessee had re-revised his return on 3.3.2014 making a claim of deduction u/s.80IB. According to CIT(A), if this is true that the assessee received completion certification on 18.3,2013 after complying with all the condition, then the assessee could have claimed the deduction in its original return on 28.9.2012 for A.Y.2012-13. The AO on the basis of the enquiry conducted by him and the observation made by the CIT(A) while disallowing the claim made for A.Y.2011-12 disallowed the claim of Rs. 6,03,35,750/- made by the assessee in the instant assessment year i.e. A.Y.2012-13. 5. The genesis of this issue is in A.Y.2010-11 where the assessee made the first claim of deduction u/s.80IB(10). In this case, the AO while completing the assessment observed that the assessee has sold flats to one family i.e. Shri. Subhash D. Yadav, Shri. Desai U. Yadav and Smt. Neeta Anand Yadav and held that the assessee is not eligible for claiming of deduction in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Tribunal's order for the A.Ys. 2010-11 and 2011-12. 9. The Assessing Officer has also referred to the appellate order for earlier assessment year and has quoted the finding of the Commissioner of Income Tax (Appeals). The Assessing Officer has also referred to the statement recorded of the partner during the course of survey. The assessee has made detailed submission on allowability of deduction during the course of assessment proceedings. 10. From the record we found that in the statement recorded of a partner, partner has nowhere stated that the project was not complete before 31st March, 2013. The partner has emphasized and stated that the work which was going on at the time of survey was related to repair, beautification and correction of the said project. 11. From the record we also found that the office of the Deputy Chief Engineer, Brihan Mumbai Mahanagar Palika also in reply to a letter of the Income Tax Department has stated that the completion certificate has been granted following the procedure as laid down under the Act. It nowhere says that the construction of the building was not complete. 12. Moreover, in the letter dated 1st August, 2013 relating to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Milestone Real Estate Fund 172 ITD 370 held that in the absence of any allegation or action by the SEBI against the assessee towards violation of SEBI Regulations, the Ld. Principal Commissioner cannot make such allegation only fur purpose of denying assessee's claim of exemption under section 10(23FB) of the Act. 17. We had also carefully verified the copies of six photographs reproduced at page 4 of the assessment order. We had also gone through the statement of Shri Gopal Barasia of 10/04/2013, copy of occupation certificate dated 26/02/2013 issued by MMC for AB and C wing, copy of occupation certificate dated 04/03/2013 issued by MMC for D & E wing, occupation certificate dated 04/03/2013 issued by MMC for club house, copy of water connection dated 15/03/2016 for A,B,C,D & E, copy of water connection dated 15/03/2016 for club house, copy of application dated 14/03/2016 to Executive Engineer of MCGM for issue of completion certificate, copy of building completion certificate dated 18/03/2013 issued by MMC for A,B,C,D & E wing and copy of building completion certificated dated 18/03/2013 by MMC Club House. 18. We had also carefully analysed letter dated 12/04/2013 issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates have been granted after physically inspecting the fulfillment of the necessary conditions. 21. The assessee has been engaged in the business of developing and building of a housing project being Mayuresh Residency comprising of Blocks A, B, C, D and E and Bank and the Club House. The said housing project was first approved by MCGM on 10th September, 2007. Accordingly, as per section 80-IB(10)(a)(iii) of the Act, construction of the said project ought to have been completed by 31st March, 2013 i.e. within 5 years from the end of the financial year in which the housing project was first approved by the local authority. 22. From the record we found that MCGM had issued Occupation certificate for Blocks A, B and C on 26th February, 2013. Occupation certificates for Blocks D and E and bank and the Club House was issued on 4th March, 2013. Water connection was granted by the MCGM in respect of the said project on 14th March, 2013. After obtaining the Occupation certificates and the water connection, the Assessee filed an application with the Executive Engineer of MCGM for grant of Building completion certificate, which were granted on 18th March, 2013. Section 80-IB(10) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eegopal Barasia was recorded wherein he has confirmed in his reply to Question No. 7 that the work as identified by the Assessing Officer to be incomplete is related to repair, beautification and correction of the said project. In response to Questions 10 and 11 in the statement of the Executive Engineer recorded by the Assessing Officer on 17th March, 2015, he has specifically said that he is unable to comment on the status of the structure as per the photograph shown to him. He has also clarified that before granting the Occupation certificate and the Building completion certificate they would consider that the painting, plastering and construction of the entrance gate is completed. 25. In paragraph 6.1 at Page 5 of the assessment order, the Assessing Officer has observed that Club House forms a part of the housing project, which is shown to be incomplete based on the enquiry conducted by him under section 131 of the Act on 10th April, 2013. The Occupation certificate dated 4th March, 2013 in respect of the Club House is placed on record along with the Building completion certificate of the Club House dated 18th March, 2013. 26. In paragraph 7.1 at pages 5 to 7 of the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... replied "I would like to state that the certificate formed is a pre-printed form and the additions / alterations if any are made by the signing authority as he/she may deem fit as per the case. The phrase has been added to the proforma by the signing authority." 29. From the record, we also found that the Assessing Officer has referred to letter dated 14th October, 2013 from the Executive Engineer MCGM to him. Based on the said letter, he has concluded that the Building completion » certificate issued by the MCGM is a mere paper work and the , said certificate is irrelevant because the concerned Officer issuing the certificate has not understood the meaning of the expression "Project". 30. From the record we also observe that letter dated 14th October, 2013 from the Executive Engineer of MCGM to the Assessing Officer is in response to letter dated 12th April, 2013 from the Assessing Officer to him. Furthermore, the Executive Engineer of MCGM, has very clearly accepted that "on compliance of these IOD condition and conditions imposed while amending the plans along with certification of completion of the work by the concerned architect, occupation certificate is generally gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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