RV Nirmaan Private Ltd, Hyderabad V. ACIT, Circle -3(1), Hyderabad

ITA 103/HYD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 66402 (ITAT-HYDERABAD)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 27-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Assessee Lawyers: GANAPATHI SHARMA; PAUL D J RATNAM
• Keywords: Competent authority
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NOS. 103/HYD/2012 AND 262/HYD/2011 ASSESSMENT YEARS : 2008-09 AND 2007-08 RV NIRMAN PVT. LTD., APPELLANT HYDERABAD. (PAN AABCR0774L) VS. ASST. COMMISSIONER OF INCOME-TAX, RESPONDENT HYDERABAD. (PAN/GIR NO. V-2081) APPELLANT BY : SHRI GANAPATHI SHARMA & SHRI PAUL D.J. RATNAM RESPONDENT BY : SMT. AMISHA S. GUPT DATE OF HEARING : 02/08/2012 DATE OF PRONOUNCEMENT : 30/10/ 2012 ORDER PER ASHA VIJAYARAGHAVAN, J.M.: BOTH THESE APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST THE RESPECTIVE ORDERS OF CIT(A)-IV, HYDERAB AD FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09. AS IDENTICAL ISSUE IS INVOLVED IN BOTH THE APPEALS, THEY WERE HEARD TOGET HER AND, THEREFORE, WE FIND IT CONVENIENT TO DISPOSE OF THES E APPEALS BY WAY OF THIS CONSOLIDATED ORDER. ITA NO.103/HYD/2012 FOR AY 2008-09 2. THE ASSESSEE COMPANY IS IN THE BUSINESS OF BUIL DERS AND PROPERTY DEVELOPMENT AND THE ASSESSEE CLAIMED DEDUC TION 2 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. UNDER SECTION 80IB OF THE I.T. ACT. THE DEDUCTION CLAIMED BY THE ASSESSEE WAS DISALLOWED BY AO FOR THE REASON TH AT THE COMPLETION CERTIFICATE FURNISHED BY THE ASSESSEE FR OM THE COMMISSIONER, GHMC WEST ZONE WAS DATED 30/11/2009, WHICH AS PER THE ASSESSING OFFICER WAS BEYOND THE STATUTO RY PERIOD. THE ASSESSING OFFICER FURTHER OBSERVED THAT AS PER THE ABOVE CERTIFICATE ALL THE OCCUPANTS HAD APPLIED FOR REGUL ARIZATION OF THEIR PLANS AND THE SAME WERE GOT REGULARIZED ON 31 /08/2009. HE OBSERVED THAT EVEN THIS FACT INDICATED THAT THE DATE OF ACTUAL COMPLETION OF THE PROJECT IN ALL ASPECTS WAS 31/08/2009 I.E. THE DATE ON WHICH EVEN CERTAIN APPARENT ABERRA TIONS TO THE SANCTIONED PLAN WERE EFFECTED TO THE BUILDER. 3. ON APPEAL, BEFORE THE CIT(A) THE AR OF THE ASSES SEE SUBMITTED THAT THE ASSESSEE HAD TAKEN FOR DEVELOPME NT AND CONSTRUCTION A RESIDENTIAL PROJECT ON A TWO ACRE LA ND. IT WAS FURTHER SUBMITTED THAT APPROVAL FOR CONSTRUCTION OF 155 DWELLING UNITS ON A BUILT UP AREA OF 1,77,415 HAD B EEN ACCORDED BY THE HUDA VIDE ITS LETTER REF. NO. 6381/ P4/H/2003, DT. 26/06/2004. IT WAS CONTENDED THAT THE BUILT UP AREA OF EACH RESIDENTIAL UNIT IS LESS THAN 1500 SQ.FT. AND THE NECESSARY APPROVALS WITH THE BUILDING PLANS, WERE ALSO SUBMIT TED. 4. THE AR OF THE ASSESSEE FURTHER SUBMITTED THAT IT HAD COMPLETED THE CONSTRUCTION OF ALL THE RESIDENTIAL U NITS WITHIN STIPULATED PERIOD BY 15/09/2008 IN ALL RESPECTS AND HAD APPLIED TO THE GHMC FOR ISSUANCE OF A COMPLETION CERTIFICAT E. THE ASSESSEE HAD ALSO ENCLOSED COPIES OF COMPLETION CER TIFICATE ISSUED BY THE REGISTERED ARCHITECT, SR. THIRPURANTH AK REDDY AND THE LICENSED STRUCTURAL ENGINEER MR. D. PUTRIAH , WHICH IS 3 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. MANDATORY AS PER RULE 21 OF THE HYDERABAD REVISED B UILDING RULES, 2006. THE AR OF THE ASSESSEE CONTENDED THAT NO COMMUNICATION OF DENIAL WAS RECEIVED FROM GHMC AUTH ORITIES WITHIN 15 DAYS FROM ISSUE OF COMPLETION CERTIFICATE FROM THE STRUCTURAL ENGINEER WITHIN WHICH PERIOD AN OCCUPANC Y CERTIFICATE SHOULD HAVE BEEN ISSUED BY THE LOCAL AU THORITIES, AS PROVIDED IN RULE 21(2) OF THE HYDERABAD REVISED BUI LDING RULES, 2006. THE AR SUBMITTED THAT SINCE THE ISSUE OF OCCUPANCY CERTIFICATE WAS BEING DELAYED, THE ASSESS EE APPROACHED THE LOCAL AUTHORITY VIDE LETTER DATED 19 /03/2009, INFORMING THAT THE CONSTRUCTION HAD BEEN COMPLETED AND POSSESSION HAD ALSO BEEN GIVEN TO ALL THE FLAT OWNE RS AND PROPERTY TAX HAD BEEN COMPLETED IN MOST CASES, AND THEREFORE A COMPLETION CERTIFICATE MAY BE PROVIDED FOR THE PU RPOSE OF IT ACT, 1961. 5. THE AR OF THE ASSESSEE SUBMITTED THAT AFTER CONS IDERING THE COMPLETION CERTIFICATE ISSUED BY THE STRUCTURAL ENGINEER AND THE REGISTERED ARCHITECT, AS ALSO THE REPRESENT ATION OF THE ASSESSEE, THE ZONAL COMMISSIONER, GHMC WEST ZONE IS SUED A COMPLETION/OCCUPANCY CERTIFICATE ON 30/11/2009, INT ER ALIA CONFIRMING THAT THE CONSTRUCTION HAD BEEN COMPLETED ON 15/09/2008 IN ALL RESPECTS AND IT WAS FIT FOR OCCU PATION. 6. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSE E, THE CIT(A) HELD AS FOLLOWS:- ON GOING THROUGH THE FACTS OF THE CASE OF THE PRESE NT APPELLANT, HOWEVER, IT IS SEEN THAT EVEN THOUGH THE OCCUPANCY CERTIFICATE DATED 12/11/2009 OR THE COMPLETION/OCCUPANCY CERTIFICATE DT. 30/11/2009 SUBMITTED BY THE APPELLANT, MAKE A REFERENCE TO THE 4 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. COMPLETION CERTIFICATE ISSUED BY SHRI D. PUTRAIAH, STRUCTURAL ENGINEER, DT. 15/09/2008, THESE CERTIFIC ATES ISSUED BY THE GHMC THEMSELVES DO NOT MENTION ANY DA TE OF COMPLETION OF THE APPELLANTS PROJECT. OBVIOUSLY , MERELY ON THE BASIS OF THE REFERENCE OF THE LETTER OF SRI D. PUTRAIAH, IT CANNOT BE CONCLUDED THAT THE GHMC HAS CERTIFIED THAT THE CONSTRUCTION HAD BEEN COMPLETED ON 15/09/2008. IN THE ABSENCE OF ANY SUCH SPECIFIC STIPULATION, THE DATE OF SUCH CERTIFICATE OF GHMC I TSELF WILL HAVE TO BE TAKEN AS THE DATE OF COMPLETION OF THE CONSTRUCTION. SINCE SUCH DATE IS INDEED BEYOND THE STATUTORY PERIOD DISCUSSED IN PRECEDING PARAGRAPHS, NO INFIRMITY CAN BE FOUND IN THE DENIAL OF THE CLAIM O F DEDUCTION U/S 80IB(1). ACCORDINGLY, THE GROUNDS RAI SED IN THIS APPEAL ARE DECIDED AGAINST THE APPELLANT. 7. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE IS IN APPEAL BEFORE US. 8. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CONSTRUCTION OF THE PROJECT WAS COMPLETED WITH THE STIPULATED PERIOD I.E. BEFORE 31/03/2009 I TSELF AND THE LICENSED ARCHITECT AND STRUCTURAL CONSULTANT HAVE C ONFIRMED THE SAME VIDE THEIR CERTIFICATES DATED 15/09/2006 AND T HESE CERTIFICATES ALSO WERE FILED BEFORE THE CIT(A). IT IS SUBMITTED THAT THE ASSESSEE VIDE THE LETTER FILD ON 19/03/200 8 BEFORE THE ZONAL COMMISSIONER, WEST ZONE GHMC REQUESTED FOR TH E ISSUE OF THE COMPLETION CERTIFICATE AND THE ZONAL COMMISS IONER VIDE HIS LETTER DATED 23/03/2009, STATED THAT THE APPLIC ATION OF THE ASSESSEE WOULD BE PROCESSED ONLY AFTER THE MATTER C ONCERNING BPS REGULATIONS PENDING BEFORE THE HIGH COURT OF AP IS DISPOSED OF BY THE HIGH COURT. NEVERTHELESS, THE ZO NAL COMMISSIONER HAS, IN THE SAID LETTER, OBSERVED THAT FOR ALMOST 5 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. ALL THE APARTMENTS/FLATS THE PROPERTY TAX ASSESSMEN TS WERE COMPLETED. IT IS FURTHER SUBMITTED THAT THE ZONAL C OMMISSIONER INTIMATED THE ASSESSEE THAT SINCE THE APARTMENTS/FLATS ARE ALREADY COMPLETED, THE COMPLETION CERTIFICATE AS DE SIRED BY YOU WILL BE ISSUED SUBJECT TO THE OUTCOME OF THE WRIT P ETITION DISPOSED BY THE HONBLE HIGH COURT OF ANDHRA PRADES H. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ZONAL COMMISSIONER HAS FINALLY ISSUED THE CERTIFICATE AS ENVISAGED IN THE REQUIREMENTS OF THE BUILDING REGULATIONS CONTAI NED IN HYDERABAD MUNICIPAL ACT, 1955 AND THE BYE-LAWS MADE THERE UNDER ON 30/11/2009. 9. THE LD. COUNSEL FURTHER SUBMITTED THAT 80IB(10)( A) IS TO BE ALLOWED IF THE UNDERTAKING COMPLETES THE CONSTRU CTION OF HOUSING PROJECT WITHIN FOUR YEARS FROM THE END OF T HE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY TH E LOCAL AUTHORITY. FOR THIS PURPOSE, THE DATE OF COMPLETIO N OF CONSTRUCTION OF HOUSING PROJECT SHALL BE TAKEN TO B E THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF S UCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. IN THE P RESENT CASE, THE ASSESSEE HAS GOT A CERTIFICATE FROM THE MUNICIP ALITY WELL WITHIN THE TIME THE ASSESSEE HAS COMPLETED THE CONS TRUCTION OF THE HOUSING PROJECT EVEN BEFORE 15.9.2008, AS IS EV IDENCED BY THE CERTIFICATE OF LICENSED ARCHITECT AND STRUCTURA L ENGINEER ISSUED ON 15.9.08. THE ASSESSEE HAS ALSO APPLIED F OR THE ISSUE OF NECESSARY CERTIFICATE TO THE ZONAL COMMISSIONER, WEST ZONE, GHMC, VIDE LETTER FILED BEFORE THE ZONAL COMMISSION ER ON 19.3.09 BUT THE ZONAL COMMISSIONER HAS ISSUED THE C ERTIFICATE 6 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. ONLY ON 30.11.09. THUS THE DELAY IN OBTAINING THE CERTIFICATE IS NOT ATTRIBUTABLE TO THE ASSESSEE AT ALL. 10. THE LD COUNSEL FURTHER SUBMITTED THAT THE SUPRE ME COURT IN THE CASE OF K.P.VARGHESE VS INCOME TAX OFFICER A ND ANOTHER (131 ITR 597) OBSERVED WHILE DEALING WITH THE RULE OF INTERPRETATION OF STATUTES, THE RULE OF INTERPRETAT ION IS NOT TO BE SOLELY BASED ON PURELY LITERAL READING AND IF PLAIN LITERAL INTERPRETATION OF STATUTORY PROVISION RESULTS IN AB SURD AND UNREASONABLE CONSEQUENCES NOT IN CONSONANCE WITH LE GISLATIVE INTENT, IT MUST BE AVOIDED. IN THE LIGHT OF THE DE CISION THE FACT THAT THE ASSESSEE COULD HAVE OBTAINED THE OCCUPANCY CERTIFICATE ONLY ON 30.11.09 AND THE DELAY IN OBTAI NING THE CERTIFICATE WAS NOT DUE TO HIS DEFAULT, COULD NOT B E TAKEN AGAINST HIM FOR REFUSAL OF THE DEDUCTION. THE LD C OUNSEL SUBMITTED THAT THE PROVISIONS OF SEC.80IB(10) ENVIS AGES THE ALLOWANCE OF DEDUCTION IF THE ASSESSEE OBTAINS A CE RTIFICATE OF COMPLETION FROM THE LOCAL AUTHORITY TO THE EFFECT T HAT THE CONSTRUCTION IS COMPLETED WITHIN 4 YEARS. THE FORM AT OF THE CERTIFICATE TO BE OBTAINED IS NOT PRESCRIBED UNDE R THE I.T. ACT OR THE RULES MADE THERE UNDER. IT WAS SUBMITTED TH AT WHEN THE ACT DOES NOT CONTAIN A DEFINITION ONE HAS TO GO BY THE COMMON PARLANCE MEANING. IN 313 ITR 262, IT HAS BEE N HELD THAT IN TAXING STATUTE PARTICULARLY, IT IS NOT THE DICT IONARY MEANING WHICH HAS TO BE SEEN BUT THE MEANING AS UND ERSTOOD IN COMMON PARLANCE IN COMMERCIAL CIRCLES . IN THESE CIRCUMSTANCES THE LETTER DT.23.3.09 ISSUED BY THE Z ONAL COMMISSIONER ACKNOWLEDGING THE FACT THAT THE APARTMENTS/FLATS ARE ALREADY COMPLETED CONFIRMS TO THE 7 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. REQUIREMENT OF OBTAINING THE CERTIFICATE AND SATISF IES THE CONDITION U/S.80IB(10)(A) OF I.T.ACT. FURTHER, THE ASSESSEES COUNSEL POINTED OUT THAT THE ZONAL COMMISSIONER HAS CATEGORICALLY STATED THAT THE NECESSARY CERTIFICATE COULD NOT BE ISSUED AS THE MATTER RELATING TO BPS REGULATIONS WA S PENDING BEFORE THE HIGH COURT. HOWEVER, THE COMPLETION CER TIFICATE WAS ISSUED BY THE ZONAL COMMISSIONER, GHMC ON 30 TH NOVEMBER 09 ON THE BASIS OF THE APPLICATION MADE B Y THE ASSESSEE ON 19 TH MARCH 09. THE LD. COUNSEL RELIED ON THE DECISION OF CIT VS. G.KRISHNAN NAIR (259 ITR 727). IN THIS CASE, DEALING WITH FILING OF CERTIFICATE AS REQUIRE D UNDER SUB- SECTION (4A) OF SEC.80 HHC OF THE I.T.ACT. THE COU RT OBSERVES THE FORM USED IS NOT CONCLUSIVE; THE SUBSTANCE HAS TO BE ASCERTAINED.. IN THE SAME CASE, IT WAS FURTHER OB SERVED AS FOLLOWS: THE APEX COURT HAS HELD THAT WHEN EXEMPTIONS ARE M ADE WITH A BENEFICENT OBJECT, SUCH AS TO GIVE INCENTIVE TO COOPERATIVE MOVEMENT OR FOR ENCOURAGING INVESTMENT IN NEW MACHINERY OR PLANT, SUCH PROVISIONS HAVE TO BE LIBERALLY CONSTRUED.. THE COUNSEL ALSO RELIED ON THE SUPREME COURT DECISION IN THE CASE OF CIT VS. GWALI OR RAYON SILK MANUFACTURING CO LTD (196 ITR 149) WHERE IN IT HAS BEEN CALLED AS FOLLOWS: IT IS SETTLED LAW THAT THE EXPRESSION USED IN TAXI NG STATUTE WOULD ORDINARILY BE UNDERSTOOD IN THE SENSE IN WHICH IT IS HARMONIOUS WITH THE OBJECT OF THE STATU TE TO EFFECTUATE THE LEGISLATIVE ANIMATION. TAX LAWS HAVE TO BE INTERPRETED REASONABLY AND IN CONSONANCE WITH JUSTICE ADOPTING A PURPOSIVE APPROA CH. THE CONTEXTUAL MEANING HAS TO BE ASCERTAINED AND GI VEN EFFECT TO. A PROVISION FOR DEDUCTION, EXEMPTION OR RELIEF 8 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. SHOULD BE CONSTRUED REASONABLY AND IN FAVOR THE ASSESSEE. 11. THE LD COUNSEL RELIED ON THE DECISION IN THE CA SE OF SANGHVI & DOSHI ENTERPRISE VS. INCOME TAX OFFICER ( ITA 259 AND 260/M/2010 DT.17.6.2011) AND SUBMITTED THAT TH E FACTS OF THE CASE ARE ALMOST SIMILAR AS IN THE PRESENT CASE AND THE ISSUE INVOLVED IS IDENTICAL. IN THE CASE OF SANGHV I & DOSHI ENTERPRISE (SUPRA) THE ASSESSMENT INVOLVED WAS 2005 -06 AND 2006-07, THE PROJECT WAS COMPLETED BY 13.3.2006. T HE PROJECT WAS COMPLETED BY THE DUE DATE AND THE ASSES SEE APPLIED FOR COMPLETION CERTIFICATE ON 13.3.2006. T HE CMDA RAISED CERTAIN OBJECTIONS AND THE MATTER WENT TO TH E HIGH COURT. THE CMDA HAD ULTIMATELY ISSUED COMPLETION C ERTIFICATE ON 13.6.2008. THE TRIBUNAL HELD THAT THE COMPLETIO N CERTIFICATE ISSUED BY THE CMDA ON 13.6.2008 WAS, IN FACT A CERTIFICATE ACCEPTING THE CLAIM OF ASSESSEE THAT TH E PROJECT HAS BEEN COMPLETED BEFORE 13.3.2006 AS THE CERTIFICATE WAS ISSUED ON AN APPLICATION GIVEN BY THE ASSESSEE. THE TRIBU NAL HAS CATEGORICALLY HELD THAT THE GRANT OF A COMPLETION C ERTIFICATE AFTER VERIFICATION BY THE COMPETENT AUTHORITY EVEN ON A SUBSEQUENT DATE WOULD REVERT BACK TO THE DATE ON WH ICH THE APPLICATION IS MADE AND THE PROJECT SHOULD ACCORDIN GLY BE DEEMED TO HAVE BEEN COMPLETED AS MENTIONED IN THE APPLICATION AND CONSEQUENTLY THE ASSESSEE SHOULD BE HELD TO HAVE COMPLIED WITH THE PROVISIONS OF SEC.80IB(10)(A )(II). 12. THE LEARNED COUNSEL FOR THE ASSESSEE ALSO RELI ED ON THE DECISION OF ITAT PUNE BENCH IN THE CASE OF SATISH B ORA & ASSOCIATES (ITA NO.713 & 714/PN/2010) DT.7.1.2011. 9 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. 13. THE LEARNED DR ON THE OTHER HAND RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 14. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD AS WELL AS GONE THROUGH THE ORDERS OF THE AUTHORITI ES BELOW. IN THE PRESENT CASE THE ASSESSEE OBTAINED APPROVAL FRO M MUNICIPAL AUTHORITIES FOR CONSTRUCTION OF THE PROJE CT ON 26/06/2004 AND THUS THE CONSTRUCTION NEEDS TO BE CO MPLETED BY 31/03/2009. AS PER THE PROVISIONS OF U/S 80IB(1) (A) EXPLANATION (II), THE DATE OF COMPLETION OF CONSTRU CTION SHOULD BE TAKEN AS THE DATE ON WHICH SUCH COMPLETION CERTI FICATE WAS ISSUED BY THE SAID LOCAL AUTHORITY. IN THE PRESENT CASE, THE ASSESSEE HAS FURNISHED THE COMPLETION CERTIFICATE F ROM THE COMMISSIONER, GREATER HYDERABAD MUNICIPAL CORPORATI ON, WEST ZONE. THE CERTIFICATE IS DATED 30/11/2009, WHICH IS BEYOND THE STATUTORY PERIOD DISCUSSED ABOVE. AS PER THE CERTIF ICATE, IT IS SEEN THAT ALL THE OCCUPANTS HAD APPLIED FOR REGULAR ISTION OF THEIR PLANS AND THE SAME WERE GOT REGULARIZED ON 31 /08/2009. EVEN THIS INDICATES THAT THE DATE OF ACTUAL COMPLET ION OF THE PROJECT IN ALL ASPECTS WAS 31/08/2009, I.E., THE DA TE ON WHICH EVEN CERTAIN APPARENT ABERRATIONS TO THE SANCTION P LAN WERE EFFECTED BY THE BUILDER. 15. FURTHER, AS REGARDS THE ASSESSMENT NOTICES ISSU ED BY THE MUNICIPAL AUTHORITIES IN RESPECT OF SOME OF THE FLA TS, IT WAS HELD THAT THE SAME COULD NOT BE EQUATED WITH THE C OMPLETION CERTIFICATE CONTEMPLATED UNDER THE ACT. ALSO, EVEN THE CERTIFICATES ISSUED BY THE MUNICIPAL APPROVED STRUC TURAL ENGINEER OR THE LICENSED ARCHITECTS COULD NOT BE CO NSIDERED AS 10 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. A SUBSTITUTE FOR COMPLETION CERTIFICATE CONTEMPLA TED UNDER THE ACT. 16. THE QUESTION BEFORE US IS WHETHER IN THE ABSENC E OF ANY COMPLETION CERTIFICATION SHOWING COMPLETION OF PROJ ECT BEFORE 31/03/2009 BY THE LOCAL AUTHORITY, THE ASSESSEE IS ENTITLED FOR CLAIM OF DEDUCTION U/S 80IB(10). IN THIS CONTEXT WE REFER TO THE DEPARTMENTAL CIRCULAR NO. 5 OF 2005 DT. 15/07/2005, EMPHASIZE THIS ISSUE AS UNDER: FOR THIS PURPOSE THE DATE OF APPROVAL SHALL BE THE DATE ON WHICH THE BUILDING PLAN IS FIRST APPROVED BY THE LOCAL AUTHORITY AND THE DATE OF COMPLETION OF THE HOUSING PROJECT, SHALL BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IS ISSUED BY SUCH AUTHORITY. 17. THE LOCAL AUTHORITY IN THIS CASE IS THE ZONAL COMMISSIONER, WEST ZONE, GHMC, SERLINGAMPALLY, R.R. DIST., HYDERABAD. 18. FURTHER, WE FIND THAT BEFORE THE CIT(A), THE AR OF THE ASSESSEE HAD SUBMITTED THAT AFTER CONSIDERING THE C OMPLETION CERTIFICATE ISSUED BY THE STRUCTURAL ENGINEER AND T HE REGISTERED ARCHITECT, AS ALSO THE REPRESENTATION OF THE ASSESS EE, THE ZONAL COMMISSIONER, GHMC WEST ZONE ISSUED A COMPLETION/ OCCUPANCY CERTIFICATE ON 30/11/2009, INTER ALIA CON FIRMING THAT THE CONSTRUCTION HAD BEEN COMPLETED ON 15/09/2008 I N ALL RESPECTS AND IT WAS FIT FOR OCCUPATION. 19. THE CIT(A) CONTRADICTED THE STATEMENT OF THE AR OF THE ASSESSEE AND POINTED OUT THAT THE COMPLETION/OCCUPA NCY CERTIFICATE DATED 30/11/2009 SUBMITTED BY THE ASSES SEE MAKES A REFERENCE TO THE COMPLETION CERTIFICATE ISSUED BY SHRI D. 11 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. PUTRAIAH, STRUCTURAL ENGINEER, DT. 15/09/2008, THES E CERTIFICATES ISSUED BY THE GHMC THEMSELVES DO NOT M ENTION ANY DATE OF COMPLETION OF THE ASSESSEES PROJECT. H ENCE, THE CIT(A) OPINED THAT ON THE BASIS REFERENCE OF LETTER OF SHRI D. PUTRAIAH, IT CANNOT BE CONCLUDED THAT THE GHMC HAS CERTIFIED THAT THE CONSTRUCTION HAD BEEN COMPLETED ON 15/09/2 008. 20. RELEVANT DATES FOR DECIDING THE ISSUE ARE THE D UE DATE FOR COMPLETION OF THE PROJECT IS 31.3.2009; STRUCTURAL ENGINEER CERTIFIED THAT THE PROJECT IS COMPLETED ON 15.9.2008 I.E. SIX MONTHS PRIOR TO THE DUE DATE; HOWEVER, THE GHMC AUTHORITIES ISSUED COMP LETION CERTIFICATE ON 31.11.2009 I.E. 14 MONTHS AFTER SUBMISSION OF CO MPLETION CERTIFICATE BY THE STRUCTURAL ENGINEER I.E. SHRI PU TRIAH. THEREFORE, THE CASE OF THE ASSESSEE IS THAT ABOVE DELAY OF 14 MONT HS IS NOT ATTRIBUTABLE TO THE ASSESSEE AND HE CANNOT BE EXPEC TED TO DO THE IMPOSSIBLE. IN THIS REGARD, WE HAVE EXAMINED THE C ITED PUNE BENCH DECISION IN THE CASE OF SATISH BORA (SUPRA). THE S AID DECISION SET A LEGAL PRINCIPLE UNDER THE PROVISION OF RELEVANT MUN ICIPAL LAWS, WHERE THERE IS NO CONCEPT OF COMPLETION CERTIFICATE BUT O NLY THE OCCUPANCY CERTIFICATE. IT ALSO CONTAINS THE PROVISIONS FOR D EEMED ISSUE OF COMPLETION CERTIFICATE IF MUNICIPAL AUTHORITIES DID NOT RAISE OBJECTIONS IF ANY AFTER FILING OF THE COMPLETION CERTIFICATE BY T HE CONCERNED ARCHITECT. DETAILS OF LOCAL MUNICIPAL LAWS OF HYDER ABAD WERE NOT DISCUSSED BEFORE US AND IT IS NOT KNOWN IF THERE AR E EQUALENT PROVISIONS FOR DEEMED ISSUE OF COMPLETION CERTIFICATE IN THE L OCAL LAWS. FURTHER, IT IS NOT CLEAR AS TO WHY THE GHMC TOOK ONLY 14 MONTHS TO ISSUE THE CERTIFICATE AND IF THERE ARE ANY DEVIATIONS FROM T HE APPROVED PLANS BY THE ASSESSEE. ONE MUST EXAMINE, IF THE RELEVANT MU NICIPAL LAWS / RULES / GUIDELINES SPECIFY ANY TIME LIMITATION FOR PROCESSING THE 12 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. CERTIFICATE FILED BY THE ARCHITECT / STRUCTURAL ENG INEER AS THE CASE MAY BE AND ISSUE OF THE FINAL COMPLETION CERTIFICATE. AO MUST ALSO EXAMINE, IF THERE IS ANY PROVISION IN LOCAL LAWS FOR DEEMED ACCEPTANCE OF THE COMPLETION CERTIFICATE FILED BY THE STRUCTURAL ENGI NEER OF THE PROJECT IN LOCAL LAWS. ALL THESE ISSUE REQUIRES THE EXPLANATI ON OF THE ASSESSEE WITH THE SUPPORTIVE EVIDENCE OF LAW RULES. IT IS T HE PROPOSITION OF SAID DECISION IN THE CASE OF SATISH BORA (SUPRA) THAT TH E MINOR DEVIATION IF ANY OUGHT NOT TO DISENTITLES THE ASSESSEE FOR AVAIL ING DEDUCTION. THUS, THIS ISSUE REQUIRES ATTENTION OF THE AO FOR FRESH A DJUDICATION IN THE LIGHT OF THE SAID DECISION OF PUNE BENCH IN THE CAS E OF SATISH BORA (SUPRA) WITH SPECIAL REFERENCE TO THE LOCAL MUNICIP AL LAWS OF HYDERABAD MUNICIPAL CORPORATION AND THE LANGUAGE USED IN THE CONTEXT OF THE COMPLETION CERTIFICATE. ACCORDINGLY, THE ISSUE I S SET ASIDE. ITA 262/HYD/2011 FOR ASSESSMENT YEAR 2007-08 21. AS THE FACTS AND GROUNDS OF APPEAL RAISED IN TH IS APPEAL ARE MATERIALLY IDENTICAL TO THAT OF AY 2008-09 BEIN G ITA NO. 103/HYD/2012 (SUPRA), RESPECTFULLY FOLLOWING THE CO NCLUSIONS DRAWN THEREIN, WE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH IDENTICAL DIRECTIONS. 22. IN THE RESULT, BOTH THE APPEALS UNDER CONSIDERA TION ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 30/10/2012. SD/- SD/- (D. KARUNAKARA RAO) (ASHA VIJAYARAGHAVAN ) ACCOUNTANT MEMBER JUDICIAL MEMB ER HYDERABAD, DATED: 30 TH OCTOBER, 2012 13 ITA NOS. 103/HYD/12 & 262/HYD/11 RV NIRMAN PVT. LTD. KV COPY TO:- 1) RV NIRMAN PVT. LTD., 8-2-268/1/16/B, SRINIKETAN, ROAD NO. 3, BANJARA HILLS, HYDERABAD. 2) ACIT, CIRCLE 3(1), HYDERABAD 3) THE CIT (A)-IV, HYDERABAD 4) THE CIT-III, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD