M/s. Saket Corporation, Baroda V. The Income tax Officer, Ward-2(6), Baroda

ITA 3377/AHD/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80272 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 06-08-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 22-12-2010
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Keywords: Competent authority

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , , , , 0 00 0 0 00 0 ' ' ' ' , , , , #$ #$ #$ #$ # % # % # % # % BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI N.S. SAINI, ACCOUNTANT MEMBER ITA NO. 3377/AHD/2010 (ASSESSMENT YEAR 2007-08) SAKET CORPORATION, A/25-116, KRISHNA INDUSTRIAL ESTATE, BIDC GORWA, BARODA-390016. PAN: ABDFS9216Q VS INCOME TAX OFFICER, WARD-2(6), BARODA. &'/ APPELLANT )*&' / RESPONDENT REVENUE BY : SHRI ROOPCHAND, SR. DR ASSESSEE(S) BY : SMT. URVASHI SHODHAN, AR + , $/ // / DATE OF HEARING : 06/08/2014 -./ , $ / DATE OF PRONOUNCEMENT: 14/08/2014 #0 #0 #0 #0/ // / O R D E R PER SHRI N.S. SAINI, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-II, BARODA DAT ED 26.08.2010. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN THIS APPE AL IS THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFI RMING DISALLOWANCE OF DEDUCTION U/S. 80IB(10) OF THE ACT BY THE ASSESSING OFFICER HOLDING THAT THE ASSESSEE LOST ELIGIBILITY FOR CLAIMING DEDUCTION U/ S. 80IB(10) SINCE THE ITA NO. 3377/A/2010 SAKET CORPORATION, BARODA AY 2007-08 - 2 - ASSESSEE FAILED TO OBTAIN PROJECT COMPLETION CERTIF ICATE FROM VMSS FOR THE ENTIRE PROJECT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, THE DEDUCTION CLAIMED U/S. 80IB(10) IN RESPECT OF DEVEL OPMENT OF HOUSING PROJECT WAS DENIED BY THE ASSESSING OFFICER ON THRE E COUNTS INCLUDING ON THE GROUND THAT THE COMPLETION CERTIFICATE OF THE HOUSI NG PROJECT WAS NOT OBTAINED. 4. ON APPEAL, THE COMMISSIONER OF INCOME TAX (APPE ALS) ACCEPTED THE CONTENTION OF THE ASSESSEE IN RESPECT OF THE OT HER GRIEVANCES EXCEPT ON THE GROUND OF NON-OBTAINING OF THE COMPLETION CERTI FICATE. IN OTHER WORDS, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS HELD T HAT THE ASSESSEE IS OTHERWISE ENTITLED FOR DEDUCTION U/S. 80IB(10) IN R ESPECT OF DEVELOPMENT OF HOUSING PROJECT BUT FOR NOT OBTAINING THE CERTIFICA TE OF COMPLETION FROM THE LOCAL AUTHORITY APPROVING THE PROJECT. 5. BEFORE US, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE POINTED OUT THAT THE LAW WHICH REQUIRES OBTAINING OF COMPLE TION CERTIFICATE FROM THE LOCAL AUTHORITY WHO HAD GRANTED APPROVAL FOR THE PR OJECT HAS COME INTO FORCE WITH EFFECT FROM 01.04.2005 AND THEREFORE APPLICABL E IN RESPECT OF HOUSING PROJECTS WHICH WERE APPROVED AFTER THAT DATE. IN S UPPORT OF THE ABOVE CONTENTION, THE AUTHORIZED REPRESENTATIVE OF THE AS SESSEE RELIED ON THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHD DEVELOPERS LTD. (2014) 362 ITR 177 (DELHI) WHEREIN IT HAS BEEN HELD AS UNDER: THE APPROVAL FOR THE PROJECT WAS GIVEN BY THE DEVE LOPMENT AUTHORITY ON MARCH 16, 2005. CLEARLY THE APPROVAL RELATED TO THE PERIOD PRIOR TO 2005, I.E., BEFORE THE AMENDMENT, W HICH INSISTED ON ISSUANCE OF THE COMPLETION CERTIFICATE BY THE EN D OF THE FOUR- YEAR PERIOD, WAS BROUGHT INTO FORCE. THE APPLICATI ON OF SUCH STRINGENT CONDITIONS, WHICH ARE LEFT TO AN INDEPEND ENT BODY SUCH ITA NO. 3377/A/2010 SAKET CORPORATION, BARODA AY 2007-08 - 3 - AS THE LOCAL AUTHORITY WHO IS TO ISSUE THE COMPLETI ON CERTIFICATE, WOULD HAVE LED TO NOT ONLY HARDSHIP BUT ABSURDITY. AS A CONSEQUENCE, THE TRIBUNAL WAS NOT, THEREFORE, IN ER ROR OF LAW WHILE HOLDING IN FAVOUR OF THE ASSESSEE. 6. WE FIND THAT IN THE INSTANT CASE, THE HOUSING P ROJECT WAS APPROVED ON 10.03.2004 BY THE COMPETENT AUTHORITY. THE ABOVE FACT IS NOT IN DISPUTE. ON THE ABOVE FACT, AS PER THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. CHD DEVELOPERS (SUPRA) , THE CONDITION FOR OBTAINING COMPLETION CERTIFICATE WITHIN FOUR YEARS OF THE DATE OF APPROVAL FOR BEING ELIGIBLE FOR DEDUCTION U/S. 80IB(10) IS NOT A PPLICABLE. THE DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY GOOD REASON AS TO WHY THE AFORESAID DECISION OF THE HONBLE DELHI HIGH CO URT SHOULD NOT BE FOLLOWED IN THE INSTANT CASE. 7. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HONBLE DELHI HIGH COURT, SET ASIDE THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS) ON THIS ISSUE AND DELETE THE DISALLOW ANCE OF DEDUCTION U/S. 80IB(10) OF THE ACT TO THE ASSESSEE. THUS, THE GRO UND OF APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE COURT ON THURSDAY, THE 14 TH OF AUGUST, 2014 AT AHMEDABAD. SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER ( N.S. SAINI) ACCOUNTANT MEMBER AHMEDABAD; DATED 14/08/2014 GHANSHYAM MAURYA, SR. P.S. ITA NO. 3377/A/2010 SAKET CORPORATION, BARODA AY 2007-08 - 4 - TRUE COPY #0 , )1 2#1/ #0 , )1 2#1/ #0 , )1 2#1/ #0 , )1 2#1// COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. )*&' / THE RESPONDENT. 3. 3 / CONCERNED CIT 4. 3() / THE CIT(A)-III, AHMEDABAD 5. 167 ) , , / DR, ITAT, AHMEDABAD 6. 78 9+ / GUARD FILE. #0 #0 #0 #0 / BY ORDER, : :: :/ // / ; ; ; ; ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD