M/s. Envee Builders & Developers, Bhopal V. The ITO 1(2), Bhopal

ITA 81/IND/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4863 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 05-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retrospective amendment
• Section: 143(3); 80IB

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER ITA NO. 80/IND/2013 A.Y.2006-07 ITO 1(2), BHOPAL :: APPELLANT VS M/S ENVEE BUILDERS & DEVELOPERS BHOPAL PAN AAMFM 3725A :: RESPONDENT ITA NO. 81/IND/2013 A.Y.2006-07 M/S ENVEE BUILDERS & DEVELOPERS BHOPAL :: APPELLANT VS ITO, 1(2) BHOPAL :: RESPONDENT ASSESSEE BY SHRI H.P. VERMA AND MISS SAKSHI VERMA DEPTT. BY SHRI G.S. GAUTAM DATE OF HEARING 21.8.2013 &23.8.2013 DATE OF PRONOUNCEMENT 30.8.2013 2 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL CHALLENGING THE IMPUGNED ORDERS DATED 22.11.2012 AN D 12.10.2012 OF THE LEARNED FIRST APPELLATE AUTHORITY . FIRST WE SHALL TAKE UP ITA NO. 80/IND/2013 IN WHICH THE ONLY GROUN D RAISED PERTAINS TO DELETING THE ADDITION OF RS. 1,27,34,64 0/- MADE ON ACCOUNT OF DISALLOWANCE U/S 40(I)(IA) OF THE ACT. 2. THE CRUX OF ARGUMENT ON BEHALF OF THE REVENUE IS THAT WHILE GRANTING RELIEF THE LEARNED CIT(A) PLACED RELIANCE UPON THE DECISION IN THE CASE OF MERILYN SHIPPING & TRANSPOR TERS VS. ACIT WHICH HAS BEEN REVERSED BY THE HONBLE ANDHRA PRADE SH HIGH COURT VIDE ORDER DATED 8 TH OCTOBER, 2012. ON THE OTHER HAND, SHRI H.P. VERMA ALONG WITH MISS SAKSHI VERMA, CONTE NDED THAT THE RELIEF HAS BEEN GRANTED NOT ONLY ON THE BASIS O F THE AFORESAID DECISION IN THE CASE OF MERILYN SHIPPING & TRANSPOR TERS VS. ACIT (SUPRA) RATHER ANOTHER DECISIONS FROM HONBLE KOLKA TA HIGH COURT IN CIT VS. VIRGIN CREATIONS AND FROM HONBLE APEX C OURT HAVE BEEN CONSIDERED FOR WHICH OUR ATTENTION WAS INVITED TO PARA 6 PAGE 3 ONWARDS OF THE IMPUGNED ORDER. 3 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRI EF, ARE THAT THE ASSESSEE DECLARED INCOME FROM DEVELOPING AND CONSTR UCTION HOUSING PROJECT AND CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE ASSESSING OFFICER ASSESSED THE INCOME AT RS.36,00,100/- AFTER DISALLOWING THE CLAIMED DEDUCT ION U/S 80IB(10). THE ASSESSEE PAID RS.1,32,93,870/- TO THE CONTRACTORS ON WHICH TDS AMOUNTING TO RS.2,85,767/- WAS DEDUCTE D UPTO FEBRUARY, 2006 AND TDS OF RS.3 LACS WAS PAYABLE AS ON 31.3.2006 WHICH WAS PAID AT THE END OF THE PREVIOUS YEAR. THE LEARNED ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 40(A)(IA) OF THE ACT AS THE TAX SO DEDUCTED WAS NOT DEPOSITED WITHIN TIME. THUS , THE PAYMENT MADE TO THE CONTRACTOR WAS DISALLOWED. ON A PPEAL, THE LEARNED CIT(A) DECIDED IN FAVOUR OF THE ASSESSEE. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THE TRIBUNAL. WE HAVE PERUSED THE RECORD AND FOUND THAT THE AMOUNT OF RS.1,27,34, 640/- WAS PAID TO SHRI AJAY SHARMA. THE ONLY REASON OF DISALL OWANCE IS THAT TAX WAS NOT DEDUCTED AT SOURCE ON SUCH PAYMENT. HOW EVER, THE LEARNED COUNSEL FOR THE ASSESSEE INVITED OUR ATTENT ION TO PAGE 81 OF THE PAPER BOOK EVIDENCING THE PAYMENT OF TAX SO DEDUCTED WAS 4 DEPOSITED IN THE GOVT. ACCOUNT BEFORE DUE DATE OF F ILING RETURN OF INCOME. AT PAGE 79 OF THE PAPER BOOK A CERTIFICATE IN FORM NO. 16A FOR DEDUCTION OF TAX AT SOURCE ALONG WITH THE A MOUNTS SO DEDUCTED AND DATE OF DEPOSIT HAVE BEEN MENTIONED. I T WAS CONTENDED THAT THE AMOUNT OF TAX HAS BEEN DEPOSITED BEFORE FILING OF RETURN I.E. 31.10.2006. IT IS CLEAR FROM THE OR DER OF THE LEARNED CIT(A) THAT THE ASSESSEE HAS RAISED TWO-FOLD CONTEN TIONS BEFORE HIM; FIRSTLY WITH REGARD TO ACTUAL PAYMENT OF TDS B EFORE THE LAST DATE OF FILING OF THE RETURN AND SECONDLY THERE WAS NO UNPAID AMOUNT AS AT THE END OF THE YEAR IN RESPECT OF THE CONTRACT AMOUNT PAYABLE TO AJAY SHARMA. WHILE DECIDING THE ASSESSEES APPEAL, THE CIT(A) HAS GIVEN HIS VERDICT ONLY BY RE LYING UPON TRIBUNAL ORDER IN THE CASE OF MARLIN SHIPPING & TRA NSPORT WHICH HAS ALREADY BEEN OVER-RULED BY THE HONBLE ANDHRA P RADESH HIGH COURT AND SUBSEQUENTLY SAME VIEW WAS FOLLOWED BY TH E GUJRAT HIGH COURT. THUS, WE DO NOT FIND ANY MERIT IN THE ACTION OF THE CIT(A) IN DELETING THE DISALLOWANCE BY RELYING UPON THE DECISION IN MERLIN SHIPPING & TRANSPORT (SUPRA) WHEREIN IT W AS HELD THAT PROVISIONS OF SECTION 40A(IA) OF THE ACT ARE NOT AP PLICABLE TO PAYMENT TO CONTRACTORS AMOUNTING TO RS. 1,27,34,640 /- WHICH HAS ALREADY BEEN PAID BY THE ASSESSEE. 5 2.2 SO FAR AS CONTENTION OF THE LEARNED COUNSEL FO R THE ASSESSEE BEFORE THE CIT(A) WITH REGARD TO ACTUAL PA YMENT OF AMOUNT OF TDS IS CONCERNED, WHICH WAS STATED TO BE PAID BEFORE THE LAST DATE OF FILING OF THE RETURN, NO DISALLOWA NCE CAN BE MADE UNDER SECTION 40A(IA) OF THE ACT IN VIEW OF THE DEC ISION OF THE HONBLE CALCUTTA COURT IN THE CASE OF VIRGIN CREATI ONS WHEREIN IT WAS HELD THAT AMENDMENT BROUGHT IN SECTION 40A(IA) OF THE ACT BY THE FINANCE ACT, 2011 WAS RETROSPECTIVE IN NATURE A ND IF TDS IS PAID BEFORE THE FILING OF RETURN, NO DISALLOWANCE I S TO BE MADE UNDER SECTION 40A(AI) OF THE ACT. 2.3 IN VIEW OF THE DECISION OF THE HONBLE HIGH CA LCUTTA COURT, THE MATTER IS RESTORED TO THE FILE OF THE AS SESSING OFFICER TO VERIFY THE ACTUAL DATE OF PAYMENT OF TDS IN RESPECT OF THE AMOUNT PAID TO THE CONTRACTOR, SHRI AJAY SHARMA. IF IT IS FOUND THAT THE AMOUNT OF TDS HAS BEEN ACTUALLY PAID IN THE GOVERNM ENT TREASURY BEFORE THE LAST DATE OF FILING OF THE RETU RN OF INCOME, NO DISALLOWANCE IS TO BE MADE UNDER SECTION 40A(AI) OF THE ACT. THE ASSESSING OFFICER IS TO DECIDE THE MATTER AFRESH AC CORDINGLY. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. 6 3. NOW WE SHALL TAKE UP THE APPEAL OF THE ASSESSEE (ITA NO. 81/IND/2013). THIS APPEAL WAS REFIXED FOR CLARIFICA TION FOR 23.8.2013. MISS SAKSHI VERMA, DURING CLARIFICATION, PLACED RELIANCE ON THE DECISION OF THE DELHI BENCH IN THE CASE OF ACIT VS. SURENDRA DEVELOPERS (ITA NOS. 2743 TO 2745/DEL/2010 AND ITA NOS. 3056 TO 3058/DEL/2010) ORDER DATED 1.8.2012. WE HAVE PERUSED THESE ORDERS. THE ONLY GROUND RAISED PERTAI NS TO CONFIRMING THE CLAIMED DEDUCTION OF RS. 36,00,100/- U/S 80IB(10) OF THE ACT. THE CRUX OF ARGUMENTS ON BEHAL F OF THE ASSESSEE IS THAT THE LAND ORIGINALLY BELONGS TO DEE P COLONIZERS FOR WHICH APPROVAL WAS OBTAINED ON THE SAME LAND ON 11. 2.2005. THE APPROVAL FROM THE TOWN AND COUNTRY PLANNING DEP ARTMENT WAS ALSO OBTAINED VIDE COMMUNICATION DATED 17.2.200 1. THE LAND WAS TRANSFERRED TO THE ASSESSEE FOR DEVELOPMEN T AND CONSTRUCTION OF HOUSES AS PER AGREEMENT FOR WHICH O UR ATTENTION WAS INVITED TO PAGE 31 OF THE PAPER BOOK. IT WAS E XPLAINED THAT THE OWNERSHIP OF LAND AND DEVELOPMENT OF COLONY BY THE ASSESSEE HAS BEEN ACCEPTED BY THECIT(A) FOR WHICH OUR ATTENT ION WAS INVITED TO PAGE 7 PARA 7 OF THE IMPUGNED ORDER. ON THE ISSUE OF COMPLETION CERTIFICATE IT WAS EXPLAINED BY THE LEAR NED COUNSEL THAT THE PROJECT WAS COMPLETED BEFORE 31.3.2006 WHI CH WAS 7 CERTIFIED BY THE ARCHITECT OF THE ASSESSEE. IT WAS CLAIMED THAT THE ASSESSEE APPLIED FOR ISSUANCE OF COMPLETION CERTIFI CATE TO THE MUNICIPAL CORPORATION BUT WAS NOT ISSUED. OUR ATTEN TION WAS INVITED TO PAGES 62 TO 64 OF THE PAPER BOOK. ON THE OTHER HAND, THE LEARNED SENIOR DR DEFENDED THE IMPUGNED ORDER B Y SUBMITTING THAT THE COMPLETION CERTIFICATE HAS NOT BEEN ISSUED TO THE ASSESSEE. IN REPLY THE LEARNED COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL (ITA NO. 2902/DEL/2010) AND ITA NO. 4694/DEL/2010) IN TH E CASE OF M/S CHD DEVELOPERS LTD. VS. ACIT. 3.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE FIRM DECLARED ITS INCOME AS NIL AFTE R CLAIMING DEDUCTION OF RS.36,00,095/- IN ITS RETURN FILED ON 31.10.2006. HOWEVER, THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMPLETED DETERMINING TAXABLE INCOME AT RS. 36,00,1 00/- DISALLOWING THE CLAIMED DEDUCTION U/S 80IB(10) OF T HE ACT. THE PROJECT, NAMELY, SAI GARDEN WAS GRANTED APPROVAL ON 11 TH FEBRUARY, 2005 BY THE LOCAL AUTHORITY ON AN AREA OF 2.52 ACRES. THE LEARNED ASSESSING OFFICER NOTICED THAT THE APPR OVED PLAN WAS GRANTED TO DEEP COLONISERS AND ALSO THE DEVELOPMENT APPROVAL 8 WAS GRANTED BY THE TOWN AND COUNTRY PLANNING DEPART MENT ON 17.2.2001 IN THE NAME OF DEEP COLONISERS. THE PERMI SSION CERTIFICATE AND THE BUILDING PLAN WERE ALSO APPROVE D IN THE NAME OF DEEP COLONISERS BY THE MUNICIPAL AUTHORITIES AND NOT IN THE NAME OF THE PRESENT ASSESSEE I.E. ENVEE BUILDERS & DEVELOPERS. THE LEARNED ASSESSING OFFICER CONCLUDED THAT THE BE NEFIT U/S 80IB(10) OF THE ACT CANNOT BE EXTENDED TO THE ASSES SEE. THE ASSESSING OFFICER ALSO ASKED THE ASSESSEE TO FURNIS H THE COMPLETION CERTIFICATE FROM THE MUNICIPAL AUTHORITY BUT THAT WAS NOT PRODUCED. THE LEARNED ASSESSING OFFICER WAS OF THE VIEW THAT FOR GETTING THE DEDUCTION U/S 80IB(10) OF THE ACT, COMPLETION CERTIFICATE IN RESPECT OF HOUSING PROJECT IS A COND ITION PRECEDENT AND SINCE NO CERTIFICATE WAS GRANTED TO THE ASSESSE E, THEREFORE, THE REQUIRED CONDITIONS UNDER CLAUSE (A) OF SECTION 80IB(10) ARE NOT FULFILLED, THUS THE CLAIMED DEDUCTION WAS DISAL LOWED. ON APPEAL, THE LEARNED CIT(A) AFFIRMED THE STAND OF TH E ASSESSING OFFICER. 3.2 SO FAR AS DENIAL OF CLAIMED DEDUCTION U/S 80IB( 10) FOR NON- ISSUANCE/NON-FURNISHING OF COMPLETION CERTIFICATE I S CONCERNED, THE LAW IS WELL SETTLED AS AMENDMENT WAS BROUGHT IN TO THE STATUTE BY THE FINANCE (NO. 2) ACT, 2004, WITH EFFE CT FROM 9 1.4.2005 AND PRIOR TO ITS SUBSTITUTION, SUB-SECTION (10) AS AMENDED BY THE FINANCE ACT, 2000 WITH EFFECT FROM 1 .4.2001 AND FINANCE ACT, 2003 WITH RETROSPECTIVE EFFECT FROM 1. 4.2002 READS AS UNDER :- (10) THE AMOUNT OF PROFITS IN CASE OF AN UNDERTAKI NG DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE 31 ST DAY OF MARCH, 2005 BY A LOCAL AUTHORITY, SHALL BE 100% OF THE PROFIT DERIVED IN ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE IST DAY OF OCTOBER, 1998; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF ONE ACRE, AND (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT UP AREA OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNI T IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WITHIN TWENTY FIVE KILOMETRES FROM THE MUNICIPAL LI MITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE. THE ASSESSEE OBTAINED THE APPROVAL ON 11 TH FEBRUARY, 2005 FROM THE MUNICIPAL AUTHORITIES, THEREFORE, THE PROJECT W AS TO BE COMPLETED WITHIN THE STIPULATED PERIOD. THE ASSESSE E CLAIMED THAT APPLICATION WAS MADE TO THE MUNICIPAL CORPORAT ION FOR ISSUANCE OF CERTIFICATE ON 2.7.2009 (PAGE 62 OF THE PAPER BOOK) BUT THE COMPLETION CERTIFICATE WAS NOT ISSUED TO TH E ASSESSEE EVEN TILL TODAY. WE FURTHER NOTE THAT THE ASSESSEE (PAG E 62 OF THE 10 PAPER BOOK), THOUGH MENTIONED THE DATES OF BUILDING PERMISSION/SANCTION BUT DELIBERATELY HAS NOT MENTIO NED WHEN THIS LETTER WAS WRITTEN TO THE MUNICIPAL AUTHORITIE S REGARDING COMPLETION OF THE PROJECT. ONE SEAL HAS BEEN AFFIXE D ON WHICH THE DATE HAS BEEN MENTIONED AS 2.7.2009. HOWEVER, THE F ACT REMAINS THAT TILL TODAY NO COMPLETION CERTIFICATE HAS BEEN ISSUED TO THE ASSESSEE. AS PER CONDITION NO. 8 MENTIONED IN BUILD ING PERMISSION CERTIFICATE DATED 11 TH FEBRUARY, 2005 IT HAS BEEN SPECIFICALLY MENTIONED THAT VIOLATION OF ANY OF TH E ABOVE CONDITIONS WILL LEAD TO AUTOMATIC CANCELLATION OF T HIS PERMISSION AND AS PER CONDITION NO. 7 NO BUILDING SHALL BE OC CUPIED FOR RESIDENTIAL OR COMMERCIAL PURPOSES BEFORE A COMPLET ION CERTIFICATE IS OBTAINED FROM THE CORPORATION AS DESIRED UNDER T HE M.P. MUNICIPAL CORPORATION ACT, 1956. IN THE PRESENT CA SE UNDISPUTEDLY NO COMPLETION CERTIFICATE WAS ISSUED B Y THE MUNICIPAL AUTHORITIES. AS PER SUB-CLAUSE (II) BELO W EXPLANATION 2 TO CLAUSE (A) TO SUB-SECTION (10) TO SECTION 80IB, THE DATE OF COMPLETION OF THE HOUSING PROJECTS SHALL BE TAKEN T O BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF S UCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. FOR CLAIM ING DEDUCTION U/S 80IB(10) OF THE ACT, THE ASSESSEE HAS TO FULFIL ALL THE 11 CONDITIONS LAID DOWN IN CLAUSES (A)(B)(C) AND (D) O F SUB-SECTION (10) OF SECTION 80IB OF THE ACT. THE ASSESSEE WAS T O COMPLETE THE PROJECT ON OR BEFORE 31.3.2009, THEREFORE, AS PER E XPLANATION THE DATE OF COMPLETION SHALL BE TAKEN ON THE DATE ON WH ICH THE COMPLETION CERTIFICATE IS ISSUED BY THE LOCAL AUTHO RITY. SINCE THE ASSESSMENT YEAR IN QUESTION IS 2006-07, THEREFORE, CLAUSE (A)(II) TO SUB-SECTION (10) OF SECTION 80IB IS CLEARLY APPLICA BLE. THUS, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LE ARNED CIT(A) ON THIS ASPECT MORE SPECIFICALLY WHEN NO COMPLETION CERTIFICATE WAS ISSUED TO THE ASSESSEE, THEREFORE, THE CLAIMED DEDUCTION U/S 80IB(10) CANNOT BE EXTENDED TO THE ASSESSEE. 3.3 SO FAR AS RELIANCE UPON THE DECISION IN THE CAS E OF ACIT VS. SURENDRA DEVELOPERS (ITA NOS. 2743 TO 2745 AND ITA NOS. 3056 TO 3058/DEL/2010 ORDER DATED 1.8.2012 AND ACIT VS. M/S CHD DEVELOPERS LTD. (ITA NO. 2902/DEL/2010 AND ITA NO. 4694/DEL/2010 ORDER DATED 26.9.2012 IS CONCERNED, W E ARE USEFULLY REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE ORDER DATED 1.8.2012 (IN THE CASE OF SURENDRA DEVEL OPERS (ITA NOS. 2743 TO 2745 AND 3056 TO 3058/DEL/2010) WHICH WAS RELIED UPON BY THE ASSESSEE. THE FINDINGS ARRIVED AT BY T HE LEARNED 12 CIT(A), ON APPEAL BY THE ASSESSEE, AS CONTAINED IN PARA 4 (ORDER DATED 1.8.2012) ARE REPRODUCED HEREUNDER :- 4. THE LD. CIT(A) ON APPEAL BY THE ASSESSEE FOR ALL THE THREE YEARS, PASSED A COMPOSITE ORDER DATED 29.03.2010 AND GRANTED RELIEF TO THE ASSESSEE OBSERVING, INTER ALIA, AS FOLLOWS :- THE A.O. HAD NOT DISPUTED THE FACT THAT THE APPELLANT HAS NOT APPLIED FOR COMPLETION CERTIFICATE ON 26.11.2007. HERE, THE ASSESSEE COULD NOT BE HELD RESPONSIBLE FOR NON ISSUANCE OF THE COMPLETION CERTIFICATE BY THE LOCAL AUTHORITY. IMPOSSIBLE CANNOT BE REQUIRED TO BE PERFORMED BY A PERSON ESPECIALLY WHEN THING IS BEYOND HIS CONTROL. THE ASSESSEE COULD NOT BE PUNISHED FOR SUCH ACT WHICH IS BEYOND HIS CONTROL. THE DOCUMENTS MENTIONED IN PARA 5.7.1 ABOVE ESTABLISH THAT THE ASSESSEE HAD COMPLETED THE CONSTRUCTION OF THE PROJECT BEFORE 31.03.2008. THE ASSESSEE HAD ALSO APPLIED FOR THE COMPLETION CERTIFICATE BUT IT COULD NOT GET THE COMPLETION CERTIFICATE WITHIN THE STATUTORY TIME PRESCRIBED IN THE SECTION OF 301 OF MADHYA PRADESH NAGAR PALIKA ADHINIYAM. THE WORD ISSUED HAS BEEN USED IN THE IT ACT FOR THE COMPLETION CERTIFICATE AND NOT THE WORD OBTAINED BY THE ASSESSEE. AS THE LEGISLATURE HAD ALREADY ANTICIPATED SUCH HARDSHIPS OF THE ASSESSEE AND THAT IS HY THE WORK ISSUED BY THE CORPORATION HAS BEEN USED. IN THIS CASE THERE IS NO REFUSAL FOR ISSUANCE OF THE COMPLETION CERTIFICATE BY THE COMMISSIONER OF MUNICIPAL CORPORATION TILL 31.03.2008, THEREFORE, IT IS HEREBY HELD THAT THE PROJECT OF THE ASSESSEE IS DEEMED TO BE COMPLETED AND COMPLETION CERTIFICATE IS DEEMED TO HAVE BEEN ISSUED BY 31.03.2008, KEEPING IN VIEW (I) THE SUBMISSION OF THE AR, (II) ABSENCE OF ANY CONTRARY MATERIAL BROUGHT ON THE RECORDS BY THE A.O. AND (III) PROVISIONS OF SECTION 301(4) OF 13 THE MADHYA PRADESH NAGAR PALIKA NIGAM ADHINIYAM. HOWEVER, LATER ON, THE CORPORATION ISSUED THE COMPLETION CERTIFICATE ON 02.06.2009. HERE THERE IS NO DISPUTE REGARDING THE APPELLANT COMPLYING WITH THE ELIGIBILITY CONDITIONS REQUIRED FOR CLAIMING DEDUCTION U/S 80IB(10) AND ONLY CONTENTION OF THE A.O. FOR REJECTING THE CLAIM OF APPELLANT IS THAT THERE IS NO COMPLETION CERTIFICATE ISSUED BY THE CORPORATION. TAKING INTO ACCOUNT THE FACT THAT THE A.O. HAS NOT DISPUTED THE ELIGIBILITY OF THE APPELLANT FOR CLAIMING THE DEDUCTION AND FURTHER IN VIEW OF THE FACT THAT THERE IS DEEMING COMPLETION CERTIFICATE ISSUED BY THE CORPORATION AS DISCUSSED ABOVE, IT IS HEREBY HELD THAT THE APPELLANT IS ENTITLED TO DEDUCTION U/S 80IB(10). THE TRIBUNAL IN ITS ORDER DATED 1.8.2012 FOLLOWED T HE DECISION ARRIVED AT IN THE CASE OF M/S GIRIJA COLONISERS, SI STER CONCERNS CASE WHEREIN THE TRIBUNAL CONCLUDED IN FAVOUR OF TH E ASSESSEE. THE RELEVANT PORTION OF THE ORDER ALSO REPRODUCED H EREUNDER :- 10 IN M/S GIRIJA COLONISERS (SUPRA), THE CASE OF A SISTER CONCERN OF THE ASSESSEE FIRM, UNDER SIMILAR FACTS, THE TRIBUNAL HAS HELD, INTER ALIA, AS FOLLOWS :- 9. IN THE PRESENT CASE, THE ASSESSEE VIDE APPLI CATION DATED 26.11.2007 HAS REQUESTED THE MUNICIPAL CORPOR ATION FOR ISSUANCE OF COMPLETION CERTIFICATE IN RESPECT O F HOUSING PROJECTS NAMED AS SURENDRA ENCLAVE SURENDRA VIHA R PHASE-I AND SURENDRA GARDEN COMPLETED BY THE ASSESSEE. THE MUNICIPAL CORPORATION HAD ISSUED THE COMPLETION CERTIFICATE ON 18.06.2010, 23.06.2010 AN D 24.06.2010 IN RESPECT OF PERMISSION NO. 3/37/27.03. 2001, 299/04.09.1999 AND 580/02.11.1999 RESPECTIVELY. TH E A.O. IN HIS REMAND REPORT DATED 08.02.2011 HAS STAT ED THAT AN ENQUIRY WAS MADE FROM THE CITY PLANNER, BHO PAL MUNICIPAL CORPORATION, WHO HAS REPORTED THAT THE AS SESSEE 14 SUBMITTED APPLICATION FOR COMPLETION CERTIFICATE IN RESPECT OF ITS HOUSING PROJECTS ON 26.11.2007, THE ASSESSEE M/ S GIRIJA COLONISERS HAD COMPLIED WITH ALL THE FORMALITIES AN D THE MUNICIPAL CORPORATION HAS TO CARRY OUT INSPECTION O F ALL THE CONSTRUCTED UNITS BEFORE ISSUING COMPLETION CERTIFI CATE, AND M/S GIRIJA COLONISERS HAD GIVEN POSSESSION OF MOST OF THE UNITS BEFORE SUBMITTING THE APPLICATION FOR COMPLET ION CERTIFICATE, AS A RESULT OF WHICH IT TOOK TIME FOR INSPECTION. IN THE LIGHT OF THE FACTS NARRATED IN A.O.S REMAND REPORT AND FACTS AVAILABLE ON RECORD, THE LD. CIT(A) HAS T AKEN A VIEW THAT THE ASSESSEE HAS COMPLETED THE CONSTRUCTI ON MUCH PRIOR TO 31.03.2008 AND HAD FULFILLED ALL REQUIREMENTS/FORMALITIES OF THE COMPLETION CERTIFIC ATE AS NOTIFIED BY THE CORPORATION AT THE TIME OF FILLING APPLICATION FOR ISSUANCE OF 36 COMPLETION CERTIFICATE ON 26.11. 2007. THE LD. CIT(A) HAS ALSO RECORDED A FINDING THAT SAL ES OF ALL RESIDENTIAL UNITS IN RESPECT OF THREE PROJECTS WERE MATERIALISED ON OR BEFORE 31.03.2008. THE MUNICIPAL AUTHORITY HAS NOT POINTED OUT ANY DEFECT AND IRREGU LARITY IN THE ASSESSEES APPLICATION DATED 26.11.2007 SUBMITE D FOR ISSUANCE OF COMPLETION CERTIFICATE OF ALL THE SAID PROJECTS. THEREFORE, IN THE LIGHT OF FACTS FOUND BY THE LD. C IT(A) AND REASONS GIVEN BY HIM, AND RESPECTFULLY FOLLOWING TH E AFORESAID DECISION OF ITAT, PUNE BENCH B PUNE IN THE CASE OF HINDUSTAN SAMUHA AWAS LTD. (SUPRA), WE DO N OT FIND ANY REASON TO TAKE A VIEW OTHER THAN THE VIEW TAKEN BY THE LEARNED CIT(A) IN THE PRESENT CASE. WE, THER EFORE, UPHOLD THE ORDER OF THE LEARNED CIT(A) AND DISMISS ALL THESE APPEALS FILED BY THE REVENUE. IF THE AFORESAID CASES AND THE CONCLUSION DRAWN THE REIN IS ANALYSED, THERE IS UNCONTROVERTED FINDING THAT COMP LETION CERTIFICATE WAS ISSUED TO THE ASSESSEE ON 2.6.2009 CONSEQUENT UPON THE APPLICATION DATED 31.3.2008 BUT IN THE PRE SENT APPEAL NO SUCH CERTIFICATE WAS ISSUED. SIMILAR IS THE SITU ATION IN THE CASE OF M/S GIRIJA COLONISERS. IN THESE CASES, THE ASSES SEE APPLIED IN 15 TIME AND THERE WAS SOME DELAY IN ISSUANCE OF COMPLE TION CERTIFICATE, IN THAT SITUATION, THE TRIBUNAL IGNORE D THE TECHNICALITIES, WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE AND DECIDED THAT THE CLAIMED BENEFIT MAY BE EXTENDED U/ S 80IB(10) OF THE ACT. HOWEVER IN THE PRESENT APPEAL EVEN TILL TO DAY NO COMPLETION CERTIFICATE WAS ISSUED TO THE ASSESSEE, THEREFORE, THE BENEFIT OF CLAIMED DEDUCTION U/S 80IB(10) OF THE AC T WAS RIGHTLY DENIED. EVEN OTHERWISE, THE INDORE BENCH, IN VIEW O F THE AMENDED PROVISION, HAD BEEN TAKING CONSISTENT STAND THAT AFTER A.Y. 2005-06 THE BENEFIT OF CLAIMED DEDUCTION U/S 8 0IB(10) OF THE ACT IS AVAILABLE, IF THE COMPLETION CERTIFICATE IS ISSUED, TO THE ASSESSEE. WE, THEREFORE, AFFIRM THE STAND OF THE L EARNED CIT(A). THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 30.8.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 30.8.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-2121 2222 2323.8 16