Deputy Commissioner of Income-tax, V. Shri Jayant Maniklal Lunawat, Pune

ITA 1497/PUN/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0297 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-12-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 25-07-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL PATHAK
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 64

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1497/PN/2014 %' ( ')( / ASSESSMENT YEAR : 2010-11 DY. COMMISSIONER OF INCOME TAX, CIRCLE 3, PUNE ....... / APPELLANT ' /VS. SHRI JAYANT MANIKLAL LUNAWAT, 1206/B/22, LUNAWAT COURT, SHIVAJINAGAR, PUNE-411005 PAN : AAYPL3026H / RESPONDENT ASSESSEE BY : SHRI SUNIL PATHAK REVENUE BY : SHRI AVADHESH KUMAR / DATE OF HEARING : 15-12-2016 / DATE OF PRONOUNCEMENT : 23-12-2016 * / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 28-04 -2014 FOR THE ASSESSMENT YEAR 2010-11. 2 ITA NO. 1497/PN/2014, A.Y. 2010-11 2. THE REVENUE IN THE PRESENT APPEAL HAS ASSAILED THE FIN DINGS OF COMMISSIONER OF INCOME TAX (APPEALS) BY RAISING FOLLOWING GROUN DS OF APPEAL : 1) THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN ALLOWING ASSESSEES CLAIM OF DEDUCTION U/S. 80IB(10 ) OF THE ACT WHEN THE ASSESSEE HAD NOT COMPLETED THE PROJECT PR AKRUTI BY 31.03.2008 THUS VIOLATING THE PROVISIONS OF SUB SEC TION (I) OF CLAUSE (A) TO SECTION 80IB(10) OF THE ACT. 2) WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED COMM ISSIONER OF INCOME-TAX (APPEALS) ERRED IN ALLOWING DEDUCTION U/ S. 80IB(10) IN RESPECT OF BUILDING G OF THE PROJECT WHEN THE BUILD ING G WAS APPROVED BY THE PLAN FOR THE FIRST TIME ON 22.02.20 05 AND AS SUCH THE COMPLETION CERTIFICATE OUGHT TO HAVE BEEN OBTAI NED BEFORE 31.03.2009 AND COMPLETION CERTIFICATE FOR 11 TH FLOOR WAS NOT OBTAINED TILL THE DATE OF COMPLETION OF ASSESSMENT ORDER, THUS VIOLATING THE PROVISIONS OF SUB SECTION (II) OF CLA USE (A) TO SECTION 80IB(10) OF THE ACT AND EXPLANATION (II) TO SEC. 80 IB(10) OF THE ACT. 3) THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OR ALL THE GROUNDS OF APPEAL. 3. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE: THE ASSESSEE DEVELOPED A HOUSING PROJECT PRAKRITI AT BALEW ADI, PUNE. THE FIRST BUILDING PLAN OF THE AFORESAID HOUSING PROJECT WAS APPR OVED BY PUNE MUNICIPAL CORPORATION (PMC) ON 26-03-2004 CONSISTING OF 7 BUILDINGS A TO G HAVING 128 FLATS WITH SANCTIONED FSI OF 115 38.30 SQ. MTR. THE SECOND REVISED BUILDING PLAN WAS APPROVED BY PMC ON 22-02-2005 HAVING 8 BUILDINGS A, B, C, D, E, F, G & H WITH SAN CTIONED FSI OF 15448.23 SQ. MTR. CONSISTING OF 175 FLATS. THEREAFTER , THE BUILDING PLAN WAS AGAIN REVISED WHICH WAS APPROVED ON 10-0 8-2006 BY PMC. THE SECOND REVISED PLAN CONSISTING OF 9 BUILDINGS I.E. A, B, C, D, E, F, G, H & I HAVING 178 FLATS WITH SANCTIONED FSI OF 14917.99 SQ. MTR. 3 ITA NO. 1497/PN/2014, A.Y. 2010-11 IN THE INITIAL BUILDING PLAN APPROVED ON 26-03-2004 THE BUILD ING G WAS SHOWN ON THE EXTREME LEFT IN THE LAYOUT PLAN OF THE PROJE CT. THEREAFTER, WHEN THE PLAN WAS REVISED FOR THE FIRST TIME BUILDING G WAS SHIFTED FROM EXTREME LEFT TO THE EXTREME RIGHT AND NEW BUILDING H WAS SHOWN ON THE EXTREME LEFT OF THE LAYOUT PLAN OF THE PROJECT. IN THE SE COND REVISED PLAN APPROVED ON 10-08-2006 BUILDING G WHICH WAS SHOWN IN THE EXTREME RIGHT OF THE LAYOUT PLAN APPROVED ON 22-05-2005 GOT SOM E EXTRA FLOOR AREA DUE TO SHIFTING OF AMENITY SPACE TOWARDS RIGHT SIDE. THE FLOOR AREA OF BUILDING G WAS INCREASED AT THE SAME LOCATION. THE ASS ESSEE CLAIMED DEDUCTION U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) IN RESPECT OF BUILDIN GS A, B, C, D, E, F & I IN THE ASSESSMENT YEARS 2006-07 AND 2007-08. THE DEDUCTION U/S. 80IB(10) WAS NOT CLAIMED BY THE ASSESSEE IN RESPECT OF BUILDINGS G AND H AS THEY WERE NOT PART OF THE PROJECT INITIALLY AP PROVED. THE ASSESSEE CLAIMED DEDUCTION U/S. 80IB(10) IN RESPECT OF BUILDIN G G FOR THE FIRST TIME IN ASSESSMENT YEAR 2010-11. THE CASE OF A SSESSEE IS THAT BUILDING G IS A SEPARATE PROJECT THAT WAS SANCTIONED ON 10-08-2006. THEREFORE, TO BE ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10), THE PROJECT I.E. BUILDING G SHOULD HAVE BEEN COMPLETED WITHIN 5 YEARS FRO M THE END OF FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY I.E. IN THE PRESENT CASE PROJECT SHOULD BE COMP LETE ON OR BEFORE 31-03-2012. THE ASSESSEE OBTAINED COMPLETION CE RTIFICATE IN RESPECT OF BUILDING G ON 14-05-2010. ACCORDINGLY, THE ASS ESSEE CLAIMED DEDUCTION OF ` 9,71,49,143/- U/S. 80IB(10) OF THE ACT ON BUILDING G. THE ASSESSING OFFICER REJECTED THE CLAIM OF ASSES SEE ON THE GROUND THAT BUILDING G WAS APPROVED BY PMC ON 22-02-2 005, ACCORDINGLY, THE ASSESSEE SHOULD HAVE OBTAINED COMPLETION CERTIFICATE ON OR BEFORE 31-03-2009 TO BE ELIGIBLE TO CLAIM DEDUCTION U /S. 80IB(10) 4 ITA NO. 1497/PN/2014, A.Y. 2010-11 OF THE ACT. SECONDLY, THE BUILDING G IS STILL INCOMPLETE AS TH E ASSESSEE HAS FAILED TO OBTAIN COMPLETION CERTIFICATE IN RESPECT OF 11 TH FLOOR OF BUILDING G TILL DATE. AGGRIEVED BY THE ASSESSMENT ORDER DATED 18-03-2013, T HE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISS IONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APP EALS) ACCEPTED THE CONTENTION OF THE ASSESSEE AND HELD THAT THE BUILDING G IS A SEPARATE PROJECT FOR WHICH BUILDING PLAN WAS APPROVED O N 10-08-2006. ACCORDINGLY, THE ASSESSEE SHOULD HAVE COMP LETED THE BUILDING ON OR BEFORE 31-03-2012. THE ARCHITECT HAS ALRE ADY ISSUED COMPLETION CERTIFICATE UP TO 11 TH FLOOR OF BUILDING G ON 26-04-2010. THE PMC HAS GRANTED OCCUPANCY CERTIFICATE IN RESPECT OF P+10 FLOORS ON 14-05-2010. THE OCCUPANCY CERTIFICATE FOR 11 TH FLOOR WAS PENDING FOR WANT OF NOC IN RESPECT OF ONE LIFT OUT OF TWO LIFTS IN THE BUI LDING. THE ASSESSEE HAS OBTAINED NOC FOR THE SECOND LIFT ON 15-05-2 010 AND HAS FURNISHED THE SAME TO LOCAL AUTHORITIES. HOWEVER, THE LOCAL AUTHORITIES HAVE NOT ISSUED OCCUPANCY CERTIFICATE WITH RESPECT TO TH E 11 TH FLOOR, WHICH IS BEYOND THE CONTROL OF ASSESSEE. THE COMMISSIONE R OF INCOME TAX (APPEALS) BY PLACING RELIANCE ON VARIOUS DECISIONS OF THE TRIBUNAL HELD THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80 IB(10) IN RESPECT OF BUILDING G CONSISTING OF P+11 FLOORS. AGAINST THE SAID FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4. SHRI AVADHESH KUMAR REPRESENTING THE DEPARTMENT VE HEMENTLY DEFENDING THE ASSESSMENT ORDER SUBMITTED, THAT THE BUILDI NG G WAS APPROVED ON 22-02-2005. ACCORDINGLY, IT SHOULD HAVE BEE N COMPLETED 5 ITA NO. 1497/PN/2014, A.Y. 2010-11 ON OR BEFORE 31-03-2009. SINCE, THE SAID BUILDING WAS NOT COMPLETE WITHIN THE TIME FRAME AS PRESCRIBED UNDER THE PROVISIONS O F SECTION 80IB(10), THE ASSESSING OFFICER RIGHTLY REJECTED THE CLAIM O F DEDUCTION U/S. 80IB(10) TO THE ASSESSEE ON BUILDING G. THE LD. DR PR AYED FOR SETTING ASIDE THE IMPUGNED ORDER AND RESTORING THE FINDIN GS OF ASSESSING OFFICER. 5. ON THE OTHER HAND SHRI SUNIL PATHAK APPEARING ON BEH ALF OF THE ASSESSEE STRONGLY SUPPORTED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN ALLOWING THE CLAIM OF DEDUCTION U/S. 80IB(10) T O THE ASSESSEE IN RESPECT OF BUILDING G. THE LD. AR SUBMITTED THA T BUILDING G WAS SANCTIONED ON 10-08-2006. IN SUPPORT OF HIS CONT ENTIONS THE LD. AR REFERRED TO THE APPROVED LAYOUT PLANS OF THE PROJECT AT PAGES 64 AND 69 OF THE PAPER BOOK. THE LD. AR POINTED THAT IN LAYOUT P LAN AT PAGE 64 OF THE PAPER BOOK THE BUILDING MARKED AS G HAD ONLY TWO WINGS, WHEREAS BUILDING G IN LAYOUT PLAN APPROVED ON 10-08-2006 HAS FOUR WINGS. THE BUILDING G APPROVED AS PER PLAN DATED 22-02-2 005 HAD ONLY P+7 FLOORS, WHEREAS THE BUILDING G AS PER PLAN APPROV ED ON 10-08- 2006 HAD ADDITIONAL FLOOR AREA AND WAS APPROVED FOR P+11 FLOORS. THE LD. AR FURTHER PLACED RELIANCE ON THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS. 229 & 1 149/PN/2010 FOR ASSESSMENT YEARS 2006-07 AND 2007-08, RESPECTIVELY DECIDED ON 13-09-2012 VIDE COMMON ORDER. IN THE SAID APPEALS THE ASSESSEE HAD CHALLENGED DENIAL OF DEDUCTION U/S. 80IB(10) IN RESPECT OF BU ILDINGS A, B, C, D, E, F AND I. THE TRIBUNAL WHILE ALLOWING THE APPEAL OF ASSESSEE HAD OBSERVED THAT BUILDING G WAS SANCTIONED FOR THE FIRST TIME ON 10-08-2006. IN VIEW OF THE OBSERVATIONS OF THE CO-ORDINA TE BENCH OF THE TRIBUNAL IT IS AMPLY CLEAR THAT THE ASSESSEE HAD TIME TO COMPLETE 6 ITA NO. 1497/PN/2014, A.Y. 2010-11 BUILDING G ON OR BEFORE 31-03-2012. THE LD. AR FURTHER SU BMITTED THAT THE PMC HAD ISSUED COMPLETION CERTIFICATE IN RESPECT OF FLOOR P+10 ON 14-05-2010 ALTHOUGH THE BUILDING WAS COMPLETE IN EVERY RE SPECT ON 23- 02-2010. THE LD. AR REFERRED TO THE APPLICATION FOR OCCUP ANCY CERTIFICATE AT PAGE 106 OF THE PAPER BOOK. HOWEVER, THE PMC ISSUED COMPLETION CERTIFICATE IN RESPECT OF P+10 FLOORS. OBJECTION WAS RAISED WITH RESPECT TO 11 TH FLOOR AS ONE OF THE TWO LIFTS IN THE BUILDING WERE NOT OPERATIONAL UP TO 11 TH FLOOR. SUBSEQUENTLY, THE ASSESSEE OBTAINED NOC WITH RESPECT TO SECOND LIFT ON 15-05-2010 AND FILED THE SAME TO THE LOCA L AUTHORITIES. HOWEVER, TILL DATE COMPLETION CERTIFICATE HAS NOT BEEN ISSUED BY THE AUTHORITIES CONCERNED. THE LD. AR SUBMITTED THAT PEOPLE HAVE ALREADY OCCUPIED FLATS ON 11 TH FLOOR. IN SUPPORT OF HIS SUBMISSIONS, THE LD. AR REFERRED TO ELECTRICITY BILLS OF THE FLATS AT 11 TH FLOOR OF THE BUILDING G AT PAGES 110 TO 118 OF THE PAPER B OOK. THE LD. AR POINTED THAT THE ASSESSEE HAS DISCHARGED ITS DUTY W ELL WITHIN TIME. IT IS FOR THE PMC TO ISSUE OCCUPANCY CERTIFICATE WHICH IS B EYOND THE CONTROL OF ASSESSEE. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. THE DEPARTMENT HAS RAISED TWO GROUNDS IN APPEAL. IN THE FIR ST GROUND THE DEPARTMENT HAS ASSAILED THE ACTION OF COMMISSIONER OF INC OME TAX (APPEALS) IN ALLOWING DEDUCTION U/S. 80IB(10) TO THE ASSESSEE IN RESPECT OF HOUSING PROJECT PRAKRITI. THE CASE OF THE DEPARTMEN T IS THAT THE HOUSING PROJECT PRAKRITI SHOULD HAVE BEEN COMPLETE BY 31-03-2008. SINCE, THE PROJECT WAS NOT COMPLETE EVEN BY 2010 THE D EDUCTION IS GRANTED TO THE ASSESSEE IN VIOLATION OF PROVISIONS OF SECTIO N 80IB(10) OF THE ACT. 7 ITA NO. 1497/PN/2014, A.Y. 2010-11 7. IN THE PRESENT CASE, WE FIND THAT THE ISSUE RELATES T O ALLOWABILITY OF DEDUCTION U/S. 80IB(10) IN RESPECT OF BUILDING G IN HOUSIN G PROJECT PRAKRITI. THE HOUSING PROJECT PRAKRITI WAS FIRST APPR OVED BY PMC ON 26-03-2004 IN RESPECT OF 7 BUILDINGS A TO G CONSISTING OF 1 28 FLATS. SUBSEQUENTLY, THE BUILDING PLAN WAS REVISED AND THE SECON D BUILDING PLAN WAS APPROVED BY PMC ON 22-02-2005 CONSISTING OF 8 BUILDINGS A, B, C, D, E, F, G & H WITH HIGHER FSI CONSISTING OF 175 FLATS. T HE ASSESSEE FURNISHED FRESH LAYOUT PLAN OF THE HOUSING PROJECT BY INCLUD ING ANOTHER BUILDING. THE REVISED BUILDING PLAN WAS APPROVED O N 10-08-2006 BY PMC CONSISTING OF 9 BUILDINGS I.E. A, B, C, D, E , F, G, H & I WITH FURTHER INCREASE IN FSI CONSISTING OF 178 FLATS. T HE ASSESSEE HAD DIVIDED THE HOUSING PROJECT PRAKRITI IN PHASES. THE FIRST PHASE COMPRISES OF BUILDINGS A, B, C, D, E, F, & I. BUILDINGS G AND H A RE NOT PART OF FIRST PHASE OF THE PROJECT. THE ASSESSEE CLAIMED DEDUCTION U/S. 80IB(10) IN RESPECT OF HOUSING PROJECT PRAKRITI COMPRISING OF BUILDINGS A, B, C, D, E, F & I IN ASSESSMENT YEARS 2006-07 AND 2007 -08. THE ASSESSING OFFICER DECLINED THE CLAIM OF ASSESSEE. THE MATTE R TRAVELLED UP TO THE TRIBUNAL. IN APPEAL BY THE ASSESSEE IN ITA N OS. 229 & 1149/PN/2010 (SUPRA), THE TRIBUNAL VIDE ORDER DATED 13-0 9-2012 HELD THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10 ) IN RESPECT OF BUILDINGS A, B, C, D, E, F, & I OF THE HOUSING PROJECT PRAK RITI. IN THE PRESENT APPEAL, THE ONLY ISSUE IS ELIGIBILITY OF DEDUCTION U/S . 80IB(10) TO BUILDING G. IT IS THE CASE OF DEPARTMENT THAT IN RESPECT OF BUILDING G THE ASSESSEE SHOULD HAVE OBTAINED COMPLETION CE RTIFICATE ON OR BEFORE 31-03-2009. IN VIEW OF THE DECISION OF CO-ORD INATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSM ENT YEARS 2006-07 AND 2007-08 AND THE ASSERTIONS MADE IN GROUND NO. 2 OF THE APPEAL, WE DO NOT FIND ANY MERIT IN GROUND NO. 1 RAISED BY THE 8 ITA NO. 1497/PN/2014, A.Y. 2010-11 DEPARTMENT IN APPEAL. ACCORDINGLY, THE SAME IS DISMISSED B EING DEVOID OF ANY MERIT. 8. IN GROUND NO. 2 THE DEPARTMENT HAS ASSAILED THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ALLOWING DEDUCTION U/ S. 80IB(10) IN RESPECT OF BUILDING G. ACCORDING TO THE DEPARTM ENT BUILDING G WAS APPROVED BY THE LOCAL AUTHORITY FOR THE FIRST TIME ON 22-02-2005 AND AS SUCH THE COMPLETION CERTIFICATE SHOULD HAVE BEEN OBTAINED IN RESPECT OF SAID BUILDING ON OR BEFORE 31-03-200 9. FURTHER, IT HAS BEEN CONTENDED THAT COMPLETION CERTIFICATE IN RESP ECT OF 11 TH FLOOR OF BUILDING G HAS NOT BEEN OBTAINED TILL DATE. 9. THE LD. AR HAS DRAWN OUR ATTENTION TO THE BUILDING PLAN APPROVED BY PMC ON 22-02-2005 (AT PAGE 64 OF THE PAPER BOOK) AN D THEREAFTER THE REVISED BUILDING PLAN APPROVED ON 10-08-2006 AT PAGE 69 OF THE PAPER BOOK. A PERUSAL OF THE LAYOUT PLAN AT PAGE 64 OF PAPER BOOK SHOW THAT BUILDING MARKED AS G IN LAYOUT PLAN APPROVED ON 22-0 2-2005 HAS ONLY TWO WINGS AND THE BUILDING MARKED AS G APPROVED ON 10-08-2006 IS BIGGER BUILDING WITH FOUR WINGS. IT HAS BEEN CONTENDED THAT AS PER PLAN APPROVED ON 22-02-2005 BUILDING G HAD P+7 FLOORS. IN THE SUBSEQUENT PLAN APPROVED ON 10-08-2006 THE FLOOR AREA OF BUILDING G WAS INCREASED DUE TO SHIFTING OF AMENITY SPACE AND THE SA ID BUILDING WAS APPROVED FOR P+11 FLOORS. THUS, BUILDING G IN RESPECT O F WHICH DEDUCTION U/S. 80IB(10) HAS BEEN CLAIMED IS THE COMPLETE BU ILDING WITH FOUR WINGS WITH P+11 FLOORS APPROVED ON 10-08-2006. THE CO-ORDINATE BENCH OF THE TRIBUNAL WHILE ADJUDICATING THE APPEAL OF THE A SSESSEE IN ITA NOS. 229 & 1149/PN/2010 (SUPRA) WHILE ADJUDICATING TH E ISSUE RELATING TO ASSESSEES CLAIM OF DEDUCTION U/S. 80IB(10) IN RE SPECT OF 9 ITA NO. 1497/PN/2014, A.Y. 2010-11 HOUSING PROJECT PRAKRITI COMPRISING OF BUILDINGS A, B, C, D, E, F, & I HAS ALSO OBSERVED THAT BUILDING G WAS SANCTIONED FOR THE FIRST TIME ON 10-08-2006. THE RELEVANT EXTRACT OF THE FINDINGS OF TRIBUN AL IN THIS REGARD ARE AS UNDER : 5.2. ABOVE DISCUSSION MAKES IT CLEAR THAT ASSESSEE COMMENCED CONSTRUCTION ON 26.03.2004 AT THE STRENGTH OF COMME NCEMENT CERTIFICATE NO.CC/2341/03 FOR 7 BUILDINGS AND COMPLETED THE SAM E IN TOTALITY ON 07.12.2007. THE COMPLETION OF 7 BUILDINGS WAS IN TW O STAGES. COMPLETION CERTIFICATE DATED 24.03.2006 WAS ISSUED FOR 4 BUILD INGS MARKED AS TYPE A, B, C AND D AT THE STRENGTH OF SANCTION PLAN DATE D 20.03.2004 AS SHOWN AS BUILDING NO.2345 IN ANNEXURE A TO THIS ORD ER. COMPLETION CERTIFICATE DATED 07.12.2007 PLACED AT PAGE 29 OF T HE PAPER BOOK WAS ISSUED IN RESPECT OF THE BALANCE 3 BUILDINGS SHOWN IN THE SANCTIONED PLAN DATED 07.12.2007 AT TYPE I, TYPE E AND TYPE F BUILDING (SHOWN AS BUILDING NOS.1, 6 AND 7 IN ANNEXURE A), AND ASSESSE E HAS CLAIMED TO RECOGNISE ITS RECEIPTS IN THE SAME MANNER. IT IS PE RTINENT TO MENTION HERE THAT BUILDING 8 SUBSEQUENTLY MARKED AS G WAS SANCTI ONED FOR THE FIRST TIME ON 10.08.2006 AND WAS NOT COMPLETED TILL THE R ELEVANT POINT OF TIME AND ASSESSEE HAS NOT CLAIMED DEDUCTION U/S.80IB(10) IN RESPECT OF THE 8TH BUILDING TYPE G WHICH IS CLAIMED TO BE SEPARATE PROJECT ITSELF. THE ASSESSEE CLAIMS TO HAVE MAINTAINED SEPARATE BOOKS O F ACCOUNT FOR 8TH BUILDING NAMED AS TYPE G. THUS, IN VIEW OF THE DOCUMENTS ON RECORD AND THE OBSER VATIONS OF THE CO-ORDINATE BENCH OF THE TRIBUNAL, THE CONTENTIONS O F THE DEPARTMENT THAT BUILDING G WAS APPROVED BY THE LOCAL AUT HORITY FOR THE FIRST TIME ON 22-02-2005 ARE NOT TENABLE AND ARE THEREFORE, REJECTE D. 10. AS PER THE PROVISIONS OF SECTION 80IB(10)(A) WHERE TH E HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY AFTER 01-04-2005, THE CONSTRUCTION OF SAME SHOULD BE COMPLETE WITHIN 5 YEARS FRO M THE END OF FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED. TH US, IN RESPECT OF BUILDING G THE PROJECT SHOULD BE COMPLETE ON O R BEFORE 10 ITA NO. 1497/PN/2014, A.Y. 2010-11 31-03-2012. A PERUSAL OF APPLICATION FOR OCCUPANCY CERTIFICA TE FILED BY THE ASSESSEE IN RESPECT OF BUILDING G PLACED ON RECORD AT PAGE 106 OF THE PAPER BOOK SHOWS THAT THE ARCHITECT HAS CERTIFIED T HAT THE BUILDING IS COMPLETE ON 23-02-2010. THE PMC VIDE COMMUNICATION DA TED 14-05-2010 HAS GRANTED COMPLETION CERTIFICATE TO BUILDING G IN RESPECT OF P+10 FLOORS. THE PMC HAS WITHHELD COMPLETION CERTIFICATE IN RESPECT OF 11 TH FLOOR ON THE GROUND THAT ONE OF THE LIFTS IN THE BUILDING D OES NOT OPEN ON 11 TH FLOOR. THE ASSESSEE HAS SUBSEQUENTLY OBTAINED NOC IN RESPECT OF SECOND LIFT ON 15-05-2010 AND HAS FURNISHED T HE SAME WITH THE CONCERNED AUTHORITIES. DESPITE COMPLYING WITH THE O BJECTION RAISED, THE PMC HAS NOT ISSUED COMPLETION CERTIFICATE IN RESPECT OF 11 TH FLOOR OF BUILDING TILL DATE. THE LD. AR HAS DRAWN OUR ATTENTION TO TH E ELECTRICITY BILLS AT PAGES 110 TO 118 OF THE PAPER BOOK TO SHOW THA T ELECTRICITY CONNECTION HAS ALREADY BEEN PROVIDED TO THE FLATS AT 11 TH FLOOR OF BUILDING G AND PEOPLE ARE RESIDING IN FLATS AT 11 TH FLOOR. A PERUSAL OF THE DOCUMENTS ON RECORD SHOW THAT THE ASSESSEE HAS REMOVED THE DEFECTS/OBJECTIONS POINTED BY THE LOCAL BODY AND HAS EVE N FURNISHED COMPLIANCE REPORT. THE ASSESSEE HAS DONE ITS PART. THE LOCAL AUTHORITY HAS NEITHER RAISED ANY OBJECTION NOR ISSUED COMPLETION C ERTIFICATE IN RESPECT OF FLATS AT 11 TH FLOOR OF THE BUILDING. ISSUANCE OF COMPLETION CERTIFICATE BY THE LOCAL BODY IS BEYOND THE CONTROL OF ASSESSEE. THE TRIBUNAL IN VARIOUS CASES HAVE HELD THAT, WHERE THE ASSESSEE HAS COMPLIED WITH ALL THE OBJECTIONS AND HAS FURNISHED COMP LETION REPORT BEFORE THE DUE DATE AND IF THE LOCAL AUTHORITY N EITHER RAISES ANY OBJECTION NOR ISSUES CERTIFICATE OF OCCUPATION/COMPLETION WIT HIN REASONABLE TIME, DEDUCTION U/S. 80IB(10) CANNOT BE DENIED T O THE ASSESSEE. THE TRIBUNAL IN THE CASE OF GERA DEVELOPMENT P VT. LTD. VS. 11 ITA NO. 1497/PN/2014, A.Y. 2010-11 JCIT REPORTED AS 70 SOT 418 : 169 TTJ 181 (PUNE) HAS H ELD THAT DEDUCTION U/S. 80IB(10) CANNOT BE DENIED ON THE GROUND T HAT COMPLETION CERTIFICATE HAS NOT BEEN ISSUED BY THE MUNICIPAL ITY, IF THE ASSESSEE HAS COMPLETED CONSTRUCTION BEFORE THE DUE DA TE. THUS, WE FIND NO MERIT IN GROUND NO. 2 RAISED BY THE DEPARTMENT IN APPEAL. 11. WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER AND THE SAME IS UPHELD. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 23 RD DAY OF DECEMBER, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 23 RD DECEMBER, 2016 RK *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-II, PUNE 4. ' / THE CIT-II, PUNE 5. !*+ %%,- , ,- , . ./0 , / DR, ITAT, B BENCH, PUNE. 6. + 1 23 / GUARD FILE. // ! % // TRUE COPY// #4 / BY ORDER, %5 ,0 / PRIVATE SECRETARY, ,- , / ITAT, PUNE