ITO WD 4(4), THANE V. HARI OM BUILDERS AND DEVELOPERS, MUMBAI

ITA 3306/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0342 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 11-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Rectification of order
• Section: 143(3); 80IB; 6; 154

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.3306/MUM/2016 ASSESSMENT YEAR: 2011 - 2012 INCOME TAX OFFICER WARD 4(4), THANE (W) / VS. HARI OM BUILDERS & DEVELOPERS, 1 MANOHAR NAGAR, OPP SHIV SHAKTI COMPLEX, VALIV, VASAI (E) MUMBAI 401 208 ( / REVENUE) ( !' /ASSESSEE) P.A. NO. ABDFS3536P CO NO.261/MUM/2017(ARISING OUT OF ITA NO.3306/MUM/2016 AY: 2011 - 2012 HARI OM BUILDERS & DEVELOPERS, MUMBAI 401 208 / VS. INCOME TAX OFFICER WARD 4(4),THANE (W) ( CROSS - OBJECTOR ) ( RESPONDENT ) +,-. / REVENUE BY SHRI RAJESH KUMAR YADAV DR !' +,-. / ASSESSEE BY SHRI SUBODH RATNAPARKHI # $ % '& / DATE OF HEARING : 05/02/2018 % '& / DATE OF PRONOUNCEMENT 05/02/2018 ./ O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 2 ND FEBRUARY, 2016 OF THE LEARNED FIRST APPELLATE AUTH ORITY 2 ALLOWING DEDUCTION U/S. 80IB(10) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), AMOUNTING TO RS 2,80,10 ,538/- RELYING UPON THE DECISION FROM HON'BLE GUJARAT HIGH COURT IN THE CASE OF TARNETAR CORPORATION (2012) 26 TAXMA N.COM 180 (GUJ). THE ASSESSEE HAS ALSO FILED CROSS-OBJEC TION WITH RESPECT TO THE SAME DEDUCTION U/S. 80IB(10), ORIGIN ALLY ALLOWED IN THE ASSESSMENT FRAMED U/S. 143(3) OF THE ACT BY HOLDING THAT THE SAME IS A MISTAKE APPARENT FROM RE CORD BY PASSING AN ORDER U/S. 154 OF THE ACT, WHICH IS NOT MAINTAINABLE UNDER THE ACT. 2. FIRST WE SHALL TAKE UP THE APPEAL OF THE REVENUE . THE ONLY GROUND RAISED BY THE REVENUE IS WITH RESPECT T O ALLOWABILITY OF DEDUCTION U/S. 80IB(10) OF THE ACT. THE FACTS IN BRIEF ARE THAT THE ASSESSEE DECLARED NIL INCOM E IN ITS RETURN FILED ON 29.09.2011, AFTER CLAIMING DEDUCTIO N U/S. 80IB(10) OF THE ACT AMOUNTING TO RS 2,80,10,538/- O N THE PROJECT OF BUILDING 1, 2 AND 3. THE ASSESSMENT U/S . 143(3) WAS COMPLETED ON 08.08.2003 ALLOWING THE CLAIMED DEDUCTION. ORIGINALLY, CIDCO WAS THE LEGAL AUTHORI TY FOR VASHI AREA WHERE THE PROJECT OF THE ASSESSEE IS SIT UATED AND LATER ON THE SAID AREA CAME WITHIN THE JURISDICTION OF VASAI 3 VIRAR MUNICIPAL CORPORATION. A SHOW CAUSE NOTICE U /S. 154, DATED 10.04.2014, WAS ISSUED TO THE ASSESSEE. AS P ER THE REVENUE THE ASSESSEE COULD NOT SUBMIT THE COMPLETIO N CERTIFICATE EVEN AFTER AFFORDING A REASONABLE TIME THUS, THE CLAIMED DEDUCTION U/S. 80IB(10) WAS ALLOWED. THE A SSESSEE WAS AGGRIEVED BY THE RECTIFICATION ORDER PASSED BY THE LEARNED ASSESSING OFFICER THEREFORE, APPEAL WAS PRE FERRED BEFORE THE LEARNED CIT(A) WHERE THE ADDITION MADE B Y THE ASSESSING OFFICER WAS DELETED. THE LEARNED CIT(A) DELETED THE ADDITION ON THE PLEA THAT THE BUILDINGS WERE CO MPLETED BEFORE 31 ST MARCH 2011, THEREFORE, THE CONDITIONS OF SECTION 80IB(10) STOOD FULFILLED. THE LEARNED CIT(A) RELIE D UPON THE DECISION IN THE CASE OF CIT VS. HINDUSTAN SAMUHA AW AS LIMITED. IN THAT CASE IT WAS HELD THAT WHERE THE A SSESSEE UNDERTOOK A HOUSING PROJECT AND COMPLETED THE SAME WITHIN TIME AND MOVED THE APPLICATION FOR COMPLETION CERTI FICATE WITHIN TIME BUT THE SAME WAS ISSUED AFTER A DELAY, SUCH DELAY COULD NOT BE ATTRIBUTED TO THE ASSESSEE AND T HE ASSESSEE WOULD BE ENTITLED FOR DEDUCTION U/S. 80IB( 10) OF THE ACT. THE CASE OF THE REVENUE IS THAT SINCE THE COM PLETION CERTIFICATE WAS NOT ISSUED WITHIN TIME BY THE LOCAL AUTHORITY, THEREFORE, THE REQUIRED CONDITIONS PRESCRIBED U/S. 80IB(10) 4 OF THE ACT WERE NOT FULFILLED BY THE ASSESSEE. THE RE IS NO DISPUTE TO THE FACT THAT THE PROJECT WAS COMPLETED AS PER THE PRESCRIBED CONDITIONS WITHIN THE STIPULATED PERIOD AND THE APPLICATION FOR GRANT OF COMPLETION CERTIFICATE WAS APPLIED WITHIN TIME, THEREFORE, IN PRINCIPLE, WE ARE IN AGR EEMENT WITH THE FINDING OF THE LEARNED CIT(A) THAT IF THERE IS ANY LAPSE ON THE PART OF MUNICIPAL AUTHORITIES IN ISSUING THE CO MPLETION CERTIFICATE, THE ASSESSEE CANNOT BE PENALIZED. IT IS ALSO NOTED THAT ORIGINALLY THE ASSESSMENT WAS FRAMED U/S. 143( 3) OF THE ACT ON 08.08.2003 THAT TOO ON EXAMINATION/VERIFICAT ION OF THE RETURN, FILED BY THE ASSESSEE. IN THE ORIGINAL ASSESSMENT, THERE IS A FINDING THAT THE ASSESSEE HAS COMPLIED W ITH ALL THE CONDITIONS IMPOSED BY THE PROVISIONS OF THE ACT. T HE RECTIFICATION U/S 154, OF THE ACT CARRIED OUT BY TH E ASSESSEE AS ON THE PREMISE THAT THE PROJECT OF THE ASSESSEE WAS WITHOUT OCCUPATION CERTIFICATE THEREFORE, THE CLAIM ED DEDUCTION ORIGINALLY ALLOWED U/S. 143(3) ON 08.08.2 003 WAS WRONGLY ALLOWED. IT IS FURTHER NOTED THAT CIDCO WA S THE ORIGINAL LOCAL AUTHORITY FOR VASHI (EAST) AND THERE AFTER THE JURISDICTION WAS TRANSFERRED TO MUNICIPAL CORPORATI ON (VVMC). DUE TO CHANGE IN THE AUTHORITY THE OCCUPAN CY CERTIFICATE GOT DELAYED AND THE CERTIFICATE FOR BUI LDING NO.1 5 WAS GRANTED BY CIDCO ON 27.03.2008 BUT WITH RESPECT TO BUILDING NO. 2 & 3 WHICH WERE COMPLETED ON 22.03.30 11 GOT DELAYED DUE TO CHANGE OF APPROVING AUTHORITY. WE H AVE PERUSED THE RECORD ALONG WITH APPLICATION DATED 22. 03.2011 FOR GRANT OF OCCUPANCY CERTIFICATE WITH RESPECT TO BUILDING NO. 2 & 3, SAMPLE COPIES OF ELECTRICITY BILLS OF FL ATS IN BUILDING NO 2 & 3, EVIDENCING INSTALLATION OF ELECT RICITY METERS AND SUPPLY OF ELECTRICITY, OCCUPANCY CERTIFI CATE OF BUILDING NOS. 2 & 3 ISSUED BY VVMC ON 31.05.2014 (A LL DOCUMENTS ARE ATTACHED IN THE PAPER-BOOK OF THE ASS ESSEE), THUS, THE DECISION FROM HON'BLE JURISDICTIONAL HIGH COURT IN HINDUSTAN SAMUH AWAS LIMITED (62 TAXMAN.COM 175)(BO M), CIT VS. TARNETAR CORPORATION (26 TAXMAN.COM 180) (G UJ), INCOME TAX OFFICER VS. SAKET CORPORATION (62 TAXMAN .COM 38) (GUJ), M/S. D K CONSTRUCTION VS. INCOME TAX OFF ICER (IA NO. 243/INDORE/2010 DATED 6.12.2010) WE FIND NO INF IRMITY IN THE ORDER OF THE LEARNED CIT(A). 3. SO FAR AS ORDER U/S. 154 OF THE ACT, WITHDRAWING THE DEDUCTION ORIGINALLY ALLOWED U/S. 80IB(10) IS CONCE RNED, WE FIND THAT THE LEARNED CIT(A) HAS RIGHTLY OBSERVED T HAT IT WAS NOT A MISTAKE APPARENT FROM RECORD AS THE ORIGINAL ORDER 6 WAS PASSED U/S. 143(3) OF THE ACT. THE LEARNED CIT (A) HAS ALREADY MENTIONED VARIOUS DECISIONS WITH RESPECT TO THE ISSUE AND WITHDRAWAL OF CLAIM U/S. 80IB(10) OF THE ACT WAS NOT A MISTAKE APPARENT FROM RECORD. EVEN OTHERWISE , ON MERITS, THE CLAIM OF THE ASSESSEE IS QUITE JUSTIFIE D. WE AFFIRM THE STAND OF THE LEARNED CIT(A) WITH RESPECT TO CLA IM U/S. 80IB(10) IN WHICH WE FIND NO INFIRMITY. 4. SO FAR AS THE CROSS-OBJECTION NO.261/MUM/2017 IS CONCERNED, SINCE WE HAVE DISMISSED THE APPEAL OF TH E REVENUE ON THE ISSUE OF CLAIMED DEDUCTION U/S. 80IB (10), IN FAVOUR OF THE ASSESSEE, THEREFORE, THE CROSS-OBJECT ION OF THE ASSESSEE HAS REMAINED FOR ACADEMIC INTEREST ONLY, CONSEQUENTLY DISMISSED AS INFRUCTUOUS. FINALLY, THE APPEAL OF THE REVENUE AND CROSS-OBJECT ION OF THE ASSESSEE ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 5 TH FEBRUARY, 2018. SD/- (G. MANJUNATHA) SD/- (JOGINDER SINGH) .2-3 / ACCOUNTANT MEMBER 4-3 / JUDICIAL MEMBER # $ MUMBAI; + DATED : 05 /02/2018 SA 7 .+546789.8:6 / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE APPELLANT 2. 01./ / THE RESPONDENT. 3. 2 2 # 3' , ( ,- ) / THE CIT, MUMBAI. 4. 2 2 # 3' / CIT(A)- , MUMBAI 5. 56 0' , 2 ,-& , , # $ / DR, ITAT, MUMBAI 6. 7 8$ / GUARD FILE. . - / BY ORDER, /- (DY./ASSTT. REGISTRAR) , # $ / ITAT, MUMBAI