DCIT, Circle-3(1), Hyderabad, Hyderabad V. R.V. Nirmaan Pvt.Ltd., Hyd, Hyderabad

ITA 190/HYD/2015

• Counselvise Citation: 19022514 RSA 2015
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 25-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 02-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PHANI RAJU
• Assessee Lawyers: A V RAGHURAM
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI P. M. JAGTAP, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA.NO.190 & 191/HYD/2015 ASSESSMENT YEAR 2007-2008 & 2008-2009 THE DCIT, CIRCLE 3(1) HYDERABAD. VS. M/S. R.V. NIRMAN P. LTD., HYDERABAD. PAN AABCR0774L (APPELLANT) (RESPONDENT) FOR REVENUE : MR. PHANI RAJU FOR ASSESSEE : MR. A.V. RAGHURAM DATE OF HEARING : 25.05.2015 DATE OF PRONOUNCEMENT : 05.06.2015 ORDER PER P.M. JAGTAP, A.M. THESE TWO APPEALS PREFERRED BY THE REVENUE ARE DIRECTED AGAINST THE TWO SEPARATE ORDERS PASSED BY THE LD. CIT(A)-III, HYDERABAD BOTH DATED 19.12.2014 FOR A.Y S. 2007-08 AND 2008-09. SINCE COMMON ISSUE RELATING TO THE ASS ESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) IS INVOL VED THEREIN, THE SAME HAVE BEEN HEARD TOGETHER AND ARE BEING DIS POSED OF BY A SINGLE CONSOLIDATED ORDER FOR THE SAKE OF CONV ENIENCE. 2. THE ASSESSEE IN THE PRESENT CASE IS A COMPANY WHICH IS ENGAGED IN THE BUSINESS OF DEVELOPER AND B UILDER OF A RESIDENTIAL HOUSING SCHEME. THE RETURNS OF INCOME F OR BOTH THE YEARS UNDER CONSIDERATION WERE FILED BY IT DECLARIN G TOTAL INCOME OF RS.1,39,90,772 AND RS.1,36,05,610 AFTER C LAIMING DEDUCTION OF RS.23,55,423 AND RS.1,35,89,949 UNDER SECTION 80IB(10) FOR A.YS. 2007-08 AND 2008-09 RESPECTIVELY . IN THE 2 ITA.NO.190 & 191/HYD/2015 M/S. R.V. NIRMAN P. LTD., HYDERABAD. ASSESSMENTS ORIGINALLY COMPLETED UNDER SECTION 143( 3), THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 8 0IB(10) WAS DISALLOWED BY THE A.O. FOR THE REASON THAT THE COMP LETION CERTIFICATE FOR THE PROJECT UNDERTAKEN BY THE ASSES SEE COMPANY WAS ISSUED BY THE LOCAL AUTHORITY BEYOND THE PERIOD STIPULATED IN THE STATUTE. ON CONFIRMATION OF THE SAID DISALLO WANCE BY THE LD. CIT(A), APPEALS WERE PREFERRED BY THE ASSESSEE BEFORE THE TRIBUNAL FOR BOTH THE YEARS UNDER CONSIDERATION I.E . A.YS. 2007-08 AND 2008-09 AND VIDE ITS COMMON ORDER DATED 30.10.2012 PASSED IN ITA.NO.262/HYD/2011 AND ITA.NO.103/HYD/2012, THE TRIBUNAL RESTORED THE COMM ON ISSUE RELATING TO ASSESSEES CLAIM FOR DEDUCTION UN DER SECTION 80IB(10) TO THE FILE OF THE A.O. FOR DECIDING THE S AME AFRESH AS PER THE FOLLOWING DIRECTIONS : 20. RELEVANT DATES FOR DECIDING THE ISSUE ARE TH E DUE DATE FOR COMPLETION OF THE PROJECT IS 31.3.2009 ; STRUCTURAL ENGINEER CERTIFIED THAT THE PROJECT IS C OMPLETED ON 15.9.2008 I.E. SIX MONTHS PRIOR TO THE DUE DATE; HOWEVER, THE GHMC AUTHORITIES ISSUED COMPLETION CERTIFICATE ON 31.11.2009 I.E. 14 MONTHS AFTER SUBM ISSION OF COMPLETION CERTIFICATE BY THE STRUCTURAL ENGINEE R I.E. SHRI PUTRIAH. THEREFORE, THE CASE OF THE ASSESSEE I S THAT ABOVE DELAY OF 14 MONTHS IS NOT ATTRIBUTABLE TO THE ASSESSEE AND HE CANNOT BE EXPECTED TO DO THE IMPOSS IBLE. IN THIS REGARD, WE HAVE EXAMINED THE CITED PUNE BEN CH DECISION IN THE CASE OF SATISH BORA (SUPRA). THE SA ID DECISION SET A LEGAL PRINCIPLE UNDER THE PROVISION OF RELEVANT MUNICIPAL LAWS, WHERE THERE IS NO CONCEPT OF COMPLETION CERTIFICATE BUT ONLY THE OCCUPANCY CERTI FICATE. IT ALSO CONTAINS THE PROVISIONS FOR DEEMED ISSUE OF COMPLETION CERTIFICATE IF MUNICIPAL AUTHORITIES DID NOT RAISE OBJECTIONS IF ANY AFTER FILING OF THE COMPLETION CE RTIFICATE BY THE CONCERNED ARCHITECT. DETAILS OF LOCAL MUNICI PAL LAWS OF HYDERABAD WERE NOT DISCUSSED BEFORE US AND IT IS NOT KNOWN IF THERE ARE EQUALENT PROVISIONS FOR DEEMED I SSUE OF COMPLETION CERTIFICATE IN THE LOCAL LAWS. FURTHE R, IT IS NOT CLEAR AS TO WHY THE GHMC TOOK ONLY 14 MONTHS TO ISS UE 3 ITA.NO.190 & 191/HYD/2015 M/S. R.V. NIRMAN P. LTD., HYDERABAD. THE CERTIFICATE AND IF THERE ARE ANY DEVIATIONS FRO M THE APPROVED PLANS BY THE ASSESSEE. ONE MUST EXAMINE, I F THE RELEVANT MUNICIPAL LAWS / RULES / GUIDELINES SPECIF Y ANY TIME LIMITATION FOR PROCESSING THE CERTIFICATE FILE D BY THE ARCHITECT / STRUCTURAL ENGINEER AS THE CASE MAY BE AND ISSUE OF THE FINAL COMPLETION CERTIFICATE. AO MUST ALSO EXAMINE, IF THERE IS ANY PROVISION IN LOCAL LAWS FO R DEEMED ACCEPTANCE OF THE COMPLETION CERTIFICATE FILED BY T HE STRUCTURAL ENGINEER OF THE PROJECT IN LOCAL LAWS. A LL THESE ISSUE REQUIRES THE EXPLANATION OF THE ASSESSEE WITH THE SUPPORTIVE EVIDENCE OF LAW RULES. IT IS THE PROPOSI TION OF SAID DECISION IN THE CASE OF SATISH BORA (SUPRA) TH AT THE MINOR DEVIATION IF ANY OUGHT NOT TO DISENTITLES THE ASSESSEE FOR AVAILING DEDUCTION. THUS, THIS ISSUE R EQUIRES ATTENTION OF THE AO FOR FRESH ADJUDICATION IN THE L IGHT OF THE SAID DECISION OF PUNE BENCH IN THE CASE OF SATISH B ORA (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 IS SET ASIDE. 3. AS PER THE DIRECTION OF THE TRIBUNAL, THE ISSUE RELATING TO THE ASSESSEES CLAM FOR DEDUCTION UNDER SECTION 80IB(10) WAS EXAMINED BY THE A.O. AFRESH. ON SUCH EXAMINATION, HE HELD, RELYING MAINLY ON EXPLANATION (II) TO SECTION 80IB(10)(A), THAT THE DATE OF ISSUE OF COMP LETION CERTIFICATE BY THE LOCAL AUTHORITY IS REQUIRED TO B E TAKEN MANDATORILY AS THE DATE OF COMPLETION OF THE HOUSIN G PROJECT. SINCE SUCH DATE OF COMPLETION CERTIFICATE IN THE CA SE OF ASSESSEES HOUSING PROJECT BEING 30.11.2009 WAS BEY OND THE PERIOD STIPULATED IN THE STATUTE, THE A.O. DISALLOW ED THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IB(10 ) FOR BOTH THE YEARS UNDER CONSIDERATION VIDE HIS ORDERS DATED 04.12.2013 AND 11.12.2013 PASSED UNDER SECTION 143( 3) READ WITH SECTION 254 OF THE ACT FOR A.YS. 2007-08 AND 2 008-09 RESPECTIVELY. 4 ITA.NO.190 & 191/HYD/2015 M/S. R.V. NIRMAN P. LTD., HYDERABAD. 4. AGAINST THE ORDERS PASSED BY THE A.O. UNDER SECTION 143(3) READ WITH SECTION 254, ASSESSEE AGAI N WENT IN APPEAL BEFORE THE LD. CIT(A) WHO DIRECTED THE A.O. VIDE HIS APPELLATE ORDERS DATED 19.12.2014 TO ALLOW THE CLAI M OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IB(10) BY FO LLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2009- 2010 RENDERED VIDE ORDER DATED 18.06.2014 PASSED IN ITA.NO.352/HYD/2014 WHEREIN IT WAS HELD THAT THE AS SESSEE HAVING SUBMITTED THE APPLICATION FOR COMPLETION CER TIFICATE IN TIME AND THE DELAY IN ISSUING THE COMPLETION CERTIF ICATE BY THE LOCAL AUTHORITY NOT BEING ATTRIBUTABLE TO THE ASSES SEE, THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IB(10 ) CANNOT BE DISALLOWED. AGGRIEVED BY THE ORDERS OF THE LD. CIT( A), THE REVENUE HAS PREFERRED THESE APPEALS BEFORE THE TRIB UNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. A S AGREED BY THE LEARNED REPRESENTATIVES OF BOTH THE SIDES, THE COMMON ISSUE INVOLVED IN THESE APPEALS OF THE REVENUE IS S QUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF T HE TRIBUNAL DATED 18.06.2014 (SUPRA), IN ASSESSEES OWN CASE FO R A.Y. 2009-2010 WHEREIN THE CLAIM OF THE ASSESSEE FOR DED UCTION UNDER SECTION 80IB(10) IN RESPECT OF THE SAME PROJE CT WAS ALLOWED BY THE TRIBUNAL TAKING THE DATE OF FILING O F APPLICATION BY THE ASSESSEE FOR COMPLETION CERTIFICATE BEING 15 .10.2008 AS THE DATE OF COMPLETION OF THE PROJECT WHICH WAS WEL L WITHIN THE SPECIFIED DATE OF 31.03.2009. RESPECTFULLY FOLLOWIN G THE SAID DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL I N ASSESSEES OWN CASE, ON A SIMILAR ISSUE, WE UPHOLD THE IMPUGNE D ORDER OF THE LD. CIT(A) DIRECTING THE A.O. TO ALLOW THE CLAI M OF THE 5 ITA.NO.190 & 191/HYD/2015 M/S. R.V. NIRMAN P. LTD., HYDERABAD. ASSESSEE FOR DEDUCTION UNDER SECTION 80IB(10) FOR B OTH THE ASSESSMENT YEARS UNDER CONSIDERATION. 6. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.06.2 015. SD/- SD/- (SAKTIJIT DEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED 05 TH JUNE, 2015. VBP/- COPY TO 1. DCIT, CIRCLE 3(1), 7 TH FLOOR, B-BLOCK, I.T. TOWERS, HYDERABAD. 2. M/S. R.V. NIRMAAN P. LTD., 8-2-268/1/16/B, SRINI KETAN, ROAD NO.3, BANJARA HILLS, HYDERABAD. 3. COMMISSIONER OF INCOME TAX (APPEALS)-III, HYDERA BAD. 4. COMMISSIONER OF INCOME TAX-III, HYDERABAD. 5. D.R. I.T.A.T. A BENCH, HYDERABAD. 6. GUARD FILE