ITO 33(1)(1), MUMBAI V. ARIHANT BUILDERS & DEVELOPERS, MUMBAI

ITA 4105/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 7875 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-08-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 02-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Section: 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ITA NO.4105/M/2015 ASSESSMENT YEAR: 2010-11 INCOME TAX OFFICER-33(1)(1) ROOM NO.304, 3 RD FLOOR, BLDG. NO.C-11, PRATYAKSHAKAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (EAST), MUMBAI 400 051 VS. M/S. ARIHANT BUILDERS & DEVELOPERS, 1B-201, JAWAHAR C. SHAH RUGHANI PALACE, SHANTILAL MODI ROAD, KANDIVALI (WEST), MUMBAI-400 067 PAN: AAHFA1285F (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI BHUPENDRA SHAH, A.R. REVENUE BY : SHRI RAJESH KUMAR YADAV, D.R. DATE OF HEARING : 02.11.2017 DATE OF PRONOUNCEMENT : 27.12.2017 O R D E R PER D.T. GARASIA , JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVEN UE AGAINST THE ORDER DATED 30.03.2015 OF THE COMMISSIONER OF I NCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE ONLY GROUND TAKEN BY THE ASSESSEE IS REGARDI NG DISALLOWANCE OF DEDUCTION U/S 80IB(10). THE SHORT FACTS OF THE CASE ARE THAT ASSESSEE IS A DEVELOPER. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE A O) DISALLOWED THE ITA NO.4105/M/2015 M/S. ARIHANT BUILDERS & DEVELOPERS 2 DEDUCTION U/S 80IB(10) OF RS.74,10,267/- ON THE GRO UND THAT ASSESSEE HAS NOT RECEIVED COMPLETION CERTIFICATE BEFORE DUE DATE PRESCRIBED U/S 80IB(10) IN RESPECT OF PROJECT FROM THE LOCAL AUTHO RITY IGNORING THE FACT THAT ASSESSEE HAS APPLIED FOR COMPLETION OF CE RTIFICATE BEFORE DUE DATE PRESCRIBED U/S 80IB(10) AND COMPLETION CERTIFI CATE HAS BEEN RECEIVED BEFORE COMPLETION OF ASSESSMENT UNDER SECT ION 143(3) OF THE ACT. 2. MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT (A) HAS ALLOWED THE CLAIM BY OBSERVING AS UNDER: 1.2 THE APPELLANT'S CONTENTION IS THAT THEY HAD AP PLIED FOR THE COMPLETION CERTIFICATE TO THE LOCAL AUTHORITY BEFOR E THE STIPULATED DATE BUT THE SAME WAS NOT RECEIVED DUE TO TECHNICAL GROUND O F JURISDICTION OF THE PROJECT AND THE SAME WAS OUT OF CONTROL OF THE APPE LLANT. IN FACT, THE MATTER AS REGARDS THE JURISDICTION WAS CONTESTED IN THE HIGH COURT. THE APPELLANT HAS OBTAINED DEVELOPMENT COMPLETION CERTI FICATE FROM ARCHITECT, STRUCTURE STABILITY CERTIFICATE FROM STR UCTURAL ENGINEER, DRAINAGE COMPLETION CERTIFICATE FROM LICENSED PLUMB ER AND COPY OF APPROVED PLAN AND DRAWINGS. THE APPELLANT HAS ALSO GIVEN PHYSICAL POSSESSION OF THE RESPECTIVE FLATS AND FORMED A SOC IETY. THE APPELLANT HAS APPLIED TO THE LOCAL AUTHORITY BEFORE THE STIPULATE D DATE ALONGWITH ALL REQUISITE DOCUMENTS/PROFESSIONAL CERTIFICATES. THE LOCAL AUTHORITY HAS NOT RAISED ANY OBJECTION ON THE COMPLETION OF THE P ROJECT. THE APPLICATION WAS NOT CONSIDERED DUE TO TECHNICAL GROUND. THE COM PLETION CERTIFICATE WAS LATER OBTAINED ON 08-01-2013. 1.3 IN VIEW OF THE FOREGOING, I AM OF THE OPINION T HAT THE DELAY IN OBTAINING THE COMPLETION CERTIFICATE IS NOT ATTRIBU TABLE TO THE APPELLANT. THE INTENTION BEHIND THE DEDUCTION U/S 8 0IB(10) IS TO PROMOTE INVESTMENT IN HOUSING SECTOR. THE APPELLANT HAS DONE WHAT IS EXPECTED FROM THEM TO BE DONE. THE DELAY ON TECHNIC AL GROUND ALONE CANNOT FORM THE GROUND FOR DENIAL OF DEDUCTION U/S 801B(10). 3. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. LOOKING INTO THE FACTS AND CIRCUMSTANCES OF THE CAS E, I FIND THAT THE ISSUE IN CONTROVERSY IS COVERED BY THE DECISION OF HONBLE BOMBAY ITA NO.4105/M/2015 M/S. ARIHANT BUILDERS & DEVELOPERS 3 HIGH COURT IN THE CASE OF CIT VS. HINDUSTAN SAMUH A WAS LTD. 62 TAXMANN.COM 175 (BOMBAY). 4. THE LD. D.R. HAS CITED THE DECISION OF HONBLE M ADHYA PRADESH HIGH COURT IN THE CASE OF CIT VS. GLOBAL RE ALTY IN ITA NO.40 OF 2012 AND OTHERS WHEREIN THE HONBLE HIGH C OURT, CONSIDERING THE DECISION OF HONBLE SUPREME COURT, HAS HELD THAT IF THE COMPLETION CERTIFICATE IS NOT ISSUED WITHIN THE TIME THEN NO DEDUCTION U/S 80IB(10) TO BE ALLOWED. 5. IN THE INSTANT CASE, THE LD. CIT(A) HAS ALLOWED THE CLAIM FOLLOWING THE JURISDICTIONAL HIGH COURT. THEREFORE , WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 27.12.2017. SD/- SD/- (G. MANJUNATHA) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27.12.2017. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.