Income-tax Officer, V. Shri Ramesh Vithal Galande & Others, Pune

ITA 1909/PUN/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6981 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-08-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 22-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Assessee Lawyers: RAMESH RAO
• Keywords: Competent authority
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , ! ' # , $% &' #' , ' # '( BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWAS THY, JM '%. / ITA NO. 1909/PUN/2014 * +* / ASSESSMENT YEAR : 2010-11 INCOME TAX OFFICER, WARD 2(3), 1 ST FLOOR, PMT BUILDING, SWARGATE, S.S. ROAD, PUNE-411037 ....... / APPELLANT /VS. SHRI RAMESH VITHAL GALANDE & OTHERS, FORMER PARTNERS OF DISSOLVED FIRM M/S. VITTHALANJAN AND ANANDTARA DEVELOPERS, S. NO. 21, SAINIKWADI, WADGAONSHERI, PUNE 411014 PAN : AAFFV1449K / RESPONDENT ASSESSEE BY : SHRI RAMESH RAO REVENUE BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 21-02-2017 / DATE OF PRONOUNCEMENT : 03-03-2017 , / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE DATED 27-06 -2014 FOR THE ASSESSMENT YEAR 2010-11 GRANTING THE BENEFIT OF DED UCTION U/S. 2 ITA NO. 1909/PUN/2014, A.Y. 2010-11 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) TO THE ASSESSEE. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD ARE: THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVE LOPMENT AND CONSTRUCTION OF HOUSING PROJECTS. THE ASSESSEE FILED ITS R ETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER APPEAL ON 13-10-2 010 DECLARING TOTAL INCOME OF ` 3,05,87,619/-. THE ASSESSEE CLAIMED DEDUCTION OF THE ENTIRE INCOME U/S. 80IB(10) OF THE ACT. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER REJECTED T HE CLAIM OF THE ASSESSEE FOR THE FOLLOWING REASONS : I. THE ASSESSEE HAD OBTAINED COMMENCEMENT CERTIFICATE FROM PUNE MUNICIPAL CORPORATION (PMC) IN RESPECT OF HOUSING PROJECT IN QUESTION ON 27-07-2006. PERMISSION FOR USE OF LAND FOR NON - AGRICULTURE (NA) PURPOSE WAS RECEIVED BY ASSESSEE ON 11- 06- 2007. THE ASSESSEE TOOK 11-06-2007 AS DATE OF COMMEN CEMENT. FOR CLAIMING DEDUCTION U/S. 80IB(10) THE PROJECT WAS TO B E COMPLETED WITHIN 5 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT WAS APPROVED. THUS, ACCORDING TO THE ASSESSEE THE DUE DATE FOR COMPLETION OF PROJECT TO BE ELIGIBLE TO CLAIM DEDUCTION WAS BEFORE 31-03-2013. THE ASSESSING OFFICE R REJECTED THE PLEA OF ASSESSEE ON THE GROUND THAT SINC E PUNE MUNICIPAL CORPORATION HAD GRANTED COMMENCEMENT CERTIFICATE TO THE ASSESSEE ON 27-07-2006, THEREFORE, TO BE ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10) THE ASSESSEE SHOULD HAVE COMPLETE D THE HOUSING PROJECT ON OR BEFORE 31-03-2012. SINCE, THE ASS ESSEE COULD NOT OBTAIN FINAL OCCUPANCY CERTIFICATE FROM THE LOCAL 3 ITA NO. 1909/PUN/2014, A.Y. 2010-11 AUTHORITY TILL 31-03-2012, THE ASSESSEE IS NOT ENTITLED TO THE BENEFIT OF DEDUCTION U/S. 80IB(10) OF THE ACT. II. THE PROVISIONS OF SECTION 80IB(10) DOES NOT ALLOW FOR PROPORTIONATE DEDUCTION, EVEN IF THE ASSESSEE HAS OBTAINE D COMPLETION CERTIFICATE IN RESPECT OF SOME OF THE FLATS PRIOR T O 31- 03-2010 STILL THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10) OF THE ACT AS COMPLETION CERTIFICATE IN RESPECT OF REMAINING FLATS WAS NOT RECEIVED BY THE ASSESSEE BEFORE DUE DATE. III. THE ASSESSEE HAS NOT OBTAINED FINAL OCCUPANCY CERTIFICATE FROM THE LOCAL AUTHORITY I.E. PMC IN RESPECT OF 32 FLATS OUT OF T OTAL 128 FLATS IN BUILDINGS A AND B, THEREFORE, THE ASSESSEE IS NOT ELI GIBLE TO CLAIM DEDUCTION U/S. 80IB(10) OF THE ACT. AGGRIEVED BY THE ASSESSMENT ORDER DATED 28-03-2013, T HE ASSESSEE FILED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED THE CONTENTIONS OF THE ASSESSEE AND GRANTED DEDUCTION U/S. 80IB(10) OF THE ACT IN TOTO ON THE HOUSING PROJECT DEVELOPED BY THE A SSESSEE. NOW, THE DEPARTMENT IS IN APPEAL BEFORE THE TRIBUNAL ASSAILING THE FIN DINGS OF COMMISSIONER OF INCOME TAX (APPEALS). 3. THE GROUNDS RAISED BY THE DEPARTMENT CHALLENGING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ARE AS UNDER : 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TA X (APPEALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN HOLDING THE DATE OF COMMENCEMENT OF THE PROJECT AS 11-06-2007 B ASED ON NON- AGRICULTURAL PERMISSION ORDER FROM COLLECTOR, PUNE, WHEN THE 4 ITA NO. 1909/PUN/2014, A.Y. 2010-11 COMMENCEMENT CERTIFICATE WAS GRANTED ON 27-07-2006 BY THE PUNE MUNICIPAL CORPORATION. 3. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN HOLDING THAT THE PROJECT WAS COMPLETED ON THE BASIS OF COMPLETIO N CERTIFICATE ISSUED BY THE ARCHITECT DATED 20-03-2012 AND APPLICATION MADE BEFORE THE PUNE MUNICIPAL CORPORATION FOR FINAL COMPLETION CERTIFIC ATE ON 21-03-2012 AND HOLDING THAT IT WAS PENDING DUE TO PMC'S PROCEDURAL DELAYS ALTHOUGH PMC VIDE LETTER DATED 25-03-2013 HAD INFORMED THE A O THAT HANDING OVER OF AMENITY SPACE WAS NOT COMPLETED AND COMPLET ION CERTIFICATE WAS NOT ISSUED TO THE ASSESSEE. 4. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN NOT APPRECIATING THAT THE COMPLETION CERTIFICATE WAS PE NDING FOR VALID REASONS AND NOT DUE TO PROCEDURAL DELAYS BY PMC AS CLAIMED BY THE ASSESSEE AND THEREFORE COMPLETION CLAIMED ON THE BASIS OF AP PLICATION MADE TO THE PMC ON 21-03-2012 IS MISPLACED. 5. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ER RED IN ALLOWING THE APPEAL OF THE ASSESSEE WITHOUT APPRECIATING THAT TH E CLAIM OF DEDUCTION U/S. 80(IB) WAS LIABLE TO BE WITHDRAWN EVEN AS PER THE CIRCULAR OF THE CBOT DATED 30 TH JUNE 2009 AS THE PROJECT WAS NOT COMPLETED BEFORE 31- 03-2012. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. 4. SHRI HITENDRA NINAWE REPRESENTING THE DEPARTMENT SUBM ITTED THAT THE ASSESSEE IS NOT ELIGIBLE TO CLAIM DEDUCTION U/S. 80 IB(10) OF THE ACT IN RESPECT OF HOUSING PROJECT AS THE ASSESSEE HAS NOT RECEIVED COMPLETION CERTIFICATE IN RESPECT OF ENTIRE 128 FLATS COMPRIS ING IN BUILDINGS A AND B OF THE HOUSING PROJECT. THE COMPLETION/O CCUPANCY CERTIFICATE HAS BEEN GRANTED IN PARTS TO THE ASSESSEE A ND IN SOME OF THE INSTANCES THE COMPLETION/OCCUPANCY CERTIFICATE FOR THE FLAT S HAS BEEN ISSUED AFTER THE DUE DATE I.E. 31-03-2012. THE ASSESSING OFFICER VIDE LETTER DATED 21-03-2013 SOUGHT CLARIFICATION FROM THE OFFIC E OF PMC REGARDING THE STATUS OF OCCUPANCY CERTIFICATE IN RESPECT OF HOUSING 5 ITA NO. 1909/PUN/2014, A.Y. 2010-11 PROJECT UNDER QUESTION. THE PMC VIDE LETTER DATED 25-0 3-2013 INFORMED THAT COMPLETION/OCCUPANCY CERTIFICATE IN RESPECT O F 32 FLATS (10 FLATS IN WING A AND 12 FLATS IN WING B) HAVE NOT BEEN ISSU ED. WHERE OCCUPANCY /COMPLETION CERTIFICATE HAS NOT BEEN REC EIVED BEFORE DUE DATE FROM THE COMPETENT AUTHORITY DEDUCTION U/S. 80 IB(10) CANNOT BE GRANTED TO THE ASSESSEE. IN SUPPORT OF HIS SUBMISSIO NS THE LD. DR PLACED RELIANCE ON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. GLOBAL REALITY REPORTED AS 379 ITR 107 AND THE DECISION OF LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF FORTUNA FOUNDATION ENGINEER & CONSULTANTS P VT. LTD. VS. ACIT IN ITA NO. 283/LKW/2012 FOR THE ASSESSMENT YEAR 2006-07 DECIDED ON 22-08-2012. 5. ON THE OTHER HAND SHRI RAMESH RAO APPEARING ON BEHA LF OF THE ASSESSEE VEHEMENTLY SUPPORTED THE FINDINGS OF COMMISSIONE R OF INCOME TAX (APPEALS) IN ALLOWING DEDUCTION U/S. 80IB(10) OF THE ACT. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD RECEIVED COMMENCEM ENT CERTIFICATE FROM PMC IN RESPECT OF ITS HOUSING PROJECT AT VADGAON SH ERI, PUNE ON 27-07-2006. AS PER THE SANCTIONED PLANS THE ASSESSEE WAS TO C ONSTRUCT 128 FLATS. HOWEVER, THE LAND ON WHICH THE HOUSING PROJEC T WAS TO COME UP WAS NOT APPROVED FOR NON-AGRICULTURAL PURPOSES. THE ASSESSEE RECEIVED NA PERMISSION FROM THE OFFICE OF COLLECTOR ON 11-06- 2007, THUS, THE DUE DATE FOR COMPLETION OF THE PROJECT HAS TO BE RECKON ED FROM THE DATE ON WHICH NA PERMISSION WAS RECEIVED BY THE ASS ESSEE. IN THE ABSENCE OF NA PERMISSION THE ASSESSEE COULD NOT HAVE ST ARTED THE PROJECT. THEREFORE, FOR ALL INTENT AND PURPOSES THE DATE OF PERMISSION FROM COLLECTOR IS THE DATE OF APPROVAL OF HOUSING PROJECT A ND ACCORDINGLY THE DUE DATE OF COMPLETION U/S. 80IB(10) IS 31- 03-2013. 6 ITA NO. 1909/PUN/2014, A.Y. 2010-11 THE LD. AR FURTHER SUBMITTED THAT THE HOUSING PROJECT CO MPRISING OF 128 FLATS IN WING A AND WING B WAS COMPLETE IN EVERY RESPE CT ON 20-03-2012. THE ASSESSEE HAD RECEIVED OCCUPANCY LETTE R IN RESPECT OF 56 FLATS IN BUILDING B (WING C AND WING D) FROM PMC ON 31-03- 2010. FOR THE REMAINING 72 FLATS IN BUILDING A (WING A AND WING B COMPRISING OF 36 FLATS EACH) THE ASSESSEE APPLIED FOR COMPLET ION CERTIFICATE THROUGH ITS ARCHITECT ON 20-03-2012. IN RESP ONSE TO THE APPLICATION MADE BY ASSESSEE IN MARCH, 2012, THE PMC VIDE PARTIAL OCCUPANCY LETTER DATED 27-07-2012 GRANTED CERTIFICATE W ITH RESPECT TO 26 FLATS IN WING A AND 14 FLATS IN WING B (TOTAL 40 FLATS) OF BU ILDING A. THEREAFTER, ON 20-12-2013 THE ARCHITECT OF THE ASSESSEE IN CONTINUATION TO HIS EARLIER LETTER DATED 20-03-2012 REQUESTED PMC TO ISSUE COMPLETION CERTIFICATE IN RESPECT OF REMAINING FLATS. THE PMC VIDE OCCUPANCY LETTER DATED 27-12-2013 ISSUED OCCUPANCY CE RTIFICATE IN RESPECT OF 3 FLATS IN WING A AND 16 FLATS IN WING B (TOTAL 1 9 FLATS). OCCUPANCY CERTIFICATE IN RESPECT OF 13 FLATS IS STILL PENDING. THE PMC WITHHELD ISSUING OF COMPLETION CERTIFICATE IN RESPECT OF THESE 13 FLATS FOR PROVIDING SPACE FOR AMENITY I.E. SETTING UP OF TELEPHONE EXCH ANGE. THE ASSESSEE HAS OFFERED ANOTHER AREA FOR RELOCATING TELEPHON E EXCHANGE AND RELEASE OF 13 FLATS. THE PMC HAS NEITHER DECLINED THE OFFER NOR HAS IT ACCEPTED IT. EXCEPT FOR RESERVING THE DESIGNATED SPAC E FOR AMENITIES, THERE IS NO OTHER REASON FOR WITHHOLDING COMPLETION / OCC UPANCY CERTIFICATE OF THESE 13 FLATS. INITIALLY, 72 FLATS WERE WITHHELD . SUBSEQUENTLY, BASED ON THE COMPLETION CERTIFICATE ISSUED BY THE ASSESSEES ARCHITECT DATED 20-03-2012 THE PMC RELEASE D 40 FLATS ON 27-07-2012 AND AGAIN ON 27-12-2013 THE PMC RELEASED 1 9 FLATS. WITHHOLDING OF COMPLETION/OCCUPANCY CERTIFICATE IN RESPECT OF SAID FLATS BY PMC TO SET UP TELEPHONE EXCHANGE DOES NOT MEAN T HAT THE SAID FLATS 7 ITA NO. 1909/PUN/2014, A.Y. 2010-11 ARE INCOMPLETE OR THAT THE PROJECT WAS NOT COMPLETE. T HE HOUSING PROJECT IS COMPLETE IN EVERY RESPECT AND THE ASSESSEE HAS LEGITIMATELY CLAIMED DEDUCTION U/S. 80IB(10) OF THE ACT. THE ASSESSEE HAD APPLIED FOR ISSUANCE OF FINAL COMPLETION CERTIFICATE WELL WITHIN TIME. TH E DELAY IN ISSUANCE OF COMPLETION /OCCUPANCY CERTIFICATE IS BEYOND T HE CONTROL OF ASSESSEE FOR WHICH THE ASSESSEE CANNOT BE FAULTED. IN SUPPORT OF HIS CONTENTIONS THE LD. AR OF THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF COM MISSIONER OF INCOME TAX VS. TARNETAR CORPORATION REPORTED AS 362 I TR 174 AND THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF GERA DEVELOPMENTS PVT. LTD. VS. JCIT REPORTED AS 169 TTJ 181. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENT ATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIE S BELOW. WE HAVE ALSO CONSIDERED THE DOCUMENTS PLACED ON RECORD IN THE FORM OF PAPER BOOK AND THE VARIOUS DECISIONS REFERRED TO BY TH E REPRESENTATIVES OF BOTH SIDES IN SUPPORT OF THEIR RESPECTIVE CONTENTIONS. THE BENEFIT OF DEDUCTION U/S. 80IB(10) OF THE ACT CLAIMED BY THE ASSESSEE IN RESPECT OF ITS HOUSING PROJECT WAS DENIED BY THE ASSESSING OFFICER PR IMARILY FOR THE REASON THAT THE ASSESSEE COULD NOT FURNISH OCCUPANCY/C OMPLETION CERTIFICATE FROM THE COMPETENT AUTHORITY BEFORE THE DUE D ATE I.E. 31-03-2012. 7. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE RECEIVED COMMENCEMENT CERTIFICATE FROM PMC IN RESPECT OF ITS HOUSING PROJECT O N 27-07-2006. HOWEVER, TILL THAT TIME PERMISSION FOR USE OF LAN D FOR NON- AGRICULTURE PURPOSE WAS NOT RECEIVED FROM THE COLLECTOR. AS PER THE PROVISIONS OF SECTION 42 OF MAHARASHTRA LAND REVENUE CO DE, 1966 THE 8 ITA NO. 1909/PUN/2014, A.Y. 2010-11 LAND USED FOR AGRICULTURAL PURPOSE CANNOT BE USED FOR ANY NON- AGRICULTURAL PURPOSE UNLESS PERMISSION IS GRANTED BY THE C OLLECTOR. UNDER SUCH CIRCUMSTANCES EVEN IF THE HOUSING PROJECT OF THE ASSESSEE IS APPROVED BY THE PMC, THE ASSESSEE COULD NOT HAVE STAR TED CONSTRUCTION OF THE PROJECT UNLESS NA PERMISSION IS RECEIVED FROM THE C OLLECTOR. IN THE PRESENT CASE, SINCE, THE PERMISSION FROM COLLECTOR WAS RECEIVED SUBSEQUENT TO THE ISSUANCE OF COMMENCEMENT CERTIFICATE BY PMC, THE LATER DATE SHALL BE DEEMED TO BE THE DATE OF APPROVAL O F PROJECT AND ACCORDINGLY THE PERIOD OF 5 YEARS FOR COMPLETION OF PROJEC T AS ENVISAGED U/S. 80IB(10)(A)(III) SHALL BE COMPUTED FROM THE DATE NA PERMIS SION IS GRANTED. ACCORDINGLY, FOR CLAIMING DEDUCTION U/S. 80IB(10) T HE DUE DATE OF COMPLETION OF ASSESSEES HOUSING PROJECT IS 31-03 -2013. THUS, IN VIEW OF OUR ABOVE FINDINGS THE GROUND NO. 2 RAISED IN THE APPEAL BY THE DEPARTMENT IS DISMISSED. 8. THE HOUSING PROJECT OF THE ASSESSEE WAS APPROVED FO R TOTAL 128 FLATS. 72 FLATS IN BUILDING A (WINGS A AND B) AND 56 FLATS IN BUILD ING B (WINGS C AND D). UNDISPUTEDLY, THE ASSESSEE COMPLETED 56 FLATS IN BUILDING B AND OBTAINED OCCUPANCY CERTIFICATE IN RESPECT OF SAID FLATS ON 31-03-2010. THE DISPUTE IS WITH RESPECT TO THE DATE O F COMPLETION OF 72 FLATS IN BUILDING A (36 FLATS EACH IN WINGS A AND B). THE LD. A R OF THE ASSESSEE HAS DRAWN OUR ATTENTION TO THE COMPLETION CER TIFICATE DATED 20-03-2012 ISSUED BY THE ARCHITECT OF THE PROJECT AT PAGES 68 AND 69 OF THE PAPER BOOK. A PERUSAL OF THE SAID COMPLETION CERTIFICAT E SHOWS THAT THE ARCHITECT UNDER WHOSE SUPERVISION HOUSING PROJECT IS CONSTRUCTED, HAD CERTIFIED THAT 36 FLATS IN WING A AND EQUAL NUMBERS OF FLA TS IN WING B INCLUDING LOWER AND UPPER PARKING ARE COMPLETE. THUS, IT IS EVIDENT THAT THE ASSESSEE HAD APPLIED FOR ISSUANCE OF OCCUPANCY CERTIFICATE IN 9 ITA NO. 1909/PUN/2014, A.Y. 2010-11 RESPECT OF 72 FLATS OF BUILDING A, WELL BEFORE THE DUE DATE. T HE PMC GRANTED PARTIAL OCCUPANCY LETTER IN RESPECT OF 40 FLATS, I.E. 26 FLATS IN WING A AND 14 FLATS IN WING B ON 27-07-2012. AGAIN VIDE COMMUNICATION DATED 27-12-2013 THE PMC GRANTED OCCUPA NCY LETTER IN RESPECT OF 19 FLATS, I.E. 3 FLATS IN WING A AND 16 FLATS IN WING B. THUS, OUT OF 128 FLATS, THE ASSESSEE RECEIVED COMPLETION/OCCUPAN CY CERTIFICATE IN RESPECT OF 115 FLATS. THE FINAL OCCUPANCY CERTIFICATE IN RE SPECT OF 13 FLATS WAS WITHHELD BY THE PMC FOR NON-HANDING OVER OF AMEN ITY SPACE. THERE IS NO DOCUMENT ON RECORD TO SHOW THAT OCCUPANC Y/COMPLETION CERTIFICATE WAS NOT ISSUED BY THE PMC ON ACCOUNT OF INCOMPLETE FLATS. 9. THE ASSESSEE HAD APPLIED FOR GRANT OF COMPLETION/OCCUP ANCY CERTIFICATE IN RESPECT OF ENTIRE 128 FLATS WELL BEFORE DUE DAT E. DELAY CAUSED IN ISSUANCE OF COMPLETION/OCCUPANCY CERTIFICATE BY P MC CANNOT BE ATTRIBUTED TO THE ASSESSEE. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. HINDUSTAN SAMUH AW AS LTD. REPORTED AS 377 ITR 150 HAS HELD : 11. .COMPLETION OF HOUSING PROJECT IS A PHYSI CAL ACT. IT CAN BE DEMONSTRATED ON THE SPOT AND ALSO THROUGH A CERT IFICATE ISSUED BY AN ARCHITECT WHO IS APPOINTED FOR SUPERVISING THE CONS TRUCTION WORK. HE IS A PROFESSIONAL WHO WOULD DECLARE THAT THE PROJECT IS COMPLETE. UNFORTUNATELY, SUB-SECTION (10) AND THE EXPLANATION DO NOT GIVE ANY IMPORTANCE TO THE ISSUANCE OF SUCH COMPLETION CERTI FICATE BY THE CONCERNED ARCHITECT. IT GIVES IMPORTANCE ONLY TO TH E CERTIFICATE OF MUNICIPAL AUTHORITY. IT IS COMMON KNOWLEDGE THAT AN APPLICATION FOR COMPLETION CERTIFICATE SUBMITTED TO THE MUNICIPAL A UTHORITIES IS ACCOMPANIED BY A COMPLETION CERTIFICATE ISSUED BY T HE CONCERNED ARCHITECT. NO DOUBT, THE MUNICIPAL AUTHORITIES THEN CAUSE INSPECTION OF THE SITE AND VERIFY THE CLAIM. THEREAFTER, THEY ISSUE C OMPLETION CERTIFICATE. BUT IF A PROJECT IS REALLY COMPLETE BEFORE MARCH 31 , 2008, AND AN APPLICATION IS MOVED QUITE IN TIME, FOR SEEKING COM PLETION CERTIFICATE FROM THE MUNICIPAL AUTHORITIES, AND IF THEY DO NOT TAKE STEPS URGENTLY AND DELAY THE ISSUANCE OF COMPLETION CERTIFICATE FROM T HEIR SIDE, CAN IT BE SAID 10 ITA NO. 1909/PUN/2014, A.Y. 2010-11 THAT SUCH CERTIFICATE WOULD ALONE DECIDE THE DATE O F COMPLETION OF THE PROJECT ? THE ANSWER IS IN THE NEGATIVE. 10. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF COMMIS SIONER OF INCOME TAX VS. TARNETAR CORPORATION (SUPRA) HELD THAT WH ERE THE ASSESSEE HAD COMPLETED THE CONSTRUCTION BEFORE THE FINA L DATE AND HAD APPLIED FOR THE PERMISSION AND SUCH PERMISSION HAS NOT BEE N REJECTED ON THE GROUND THAT CONSTRUCTION WAS NOT COMPLETE BUT ON SOME OTHER TECHNICAL GROUND THE BENEFIT OF DEDUCTION U/S. 80IB(10) SHOU LD NOT BE DENIED TO THE ASSESSEE. 11. THE HONBLE GUJARAT HIGH COURT IN THE CASE OF INCOM E TAX OFFICER VS. SAKET CORPORATION REPORTED AS 234 TAXMAN 435 HAS TAKEN A SIMILAR VIEW. THE HONBLE COURT HELD, THAT WHERE THE ASSESSEE H AD COMPLETED ITS ENTIRE HOUSING PROJECT AND APPLIED FOR BUILDING HOUSES/ COMPLETION CERTIFICATE WITHIN PRESCRIBED TIME LIMIT, IT WOULD BE ENTITLED TO DEDUCTION U/S. 80IB(10) NOT-WITH-STANDING THE FACT THAT IT COULD NO T RECEIVE PERMISSION FOR ITS ENTIRE PROJECT. 12. THE DECISION OF LUCKNOW BENCH OF THE TRIBUNAL ON WHICH THE LD. DR HAS PLACED RELIANCE IS DISTINGUISHABLE ON FACTS. IN THE SAID CASE THE TRIBUNAL DISALLOWED THE BENEFIT OF DEDUCTION U/S. 80IB(10) TO THE ASSESSEE AS NO INFERENCE COULD BE DRAWN FROM THE COMPLET ION CERTIFICATE WITH RESPECT TO COMPLETION OF HOUSING PROJECT BEFORE THE DUE DATE. IN SO FAR AS THE RATIO LAID DOWN IN THE CASE OF COMMISSION ER OF INCOME TAX VS. GLOBAL REALITY (SUPRA) IS CONCERNED, THE SAME WOULD NOT BE APPLICABLE IN VIEW OF THE DECISION OF HONBLE JURISDICTIONAL H IGH 11 ITA NO. 1909/PUN/2014, A.Y. 2010-11 COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. HINDUS TAN SAMUH AWAS LTD. (SUPRA). 13. THUS, IN THE LIGHT OF THE FACTS AND CASE LAWS DISCUSSED ABOVE, WE D O NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER. THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) ARE UPHELD AND THE AP PEAL OF THE DEPARTMENT IS DISMISSED BEING DEVOID OF ANY MERIT. 14. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED ON FRIDAY, THE 03 RD DAY OF MARCH, 2017. SD/- SD/- ( / ANIL CHATURVEDI) ( ! / VIKAS AWASTHY) ' ! / ACCOUNTANT MEMBER # ! / JUDICIAL MEMBER ' / PUNE; $% / DATED : 03 RD MARCH, 2017 RK , - ./& 0&+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. & & ' () / THE CIT(A)-II, PUNE 4. & & ' / THE CIT-II, PUNE 5. *+ ,- , & ,- , . ./ , ' / DR, ITAT, B BENCH, PUNE. 6. +01 23 / GUARD FILE. // // TRUE COPY// &'4 / BY ORDER, 5 %6 / ASSISTANT REGISTRAR, & ,- , ' / ITAT, PUNE