M/s. Raj Kasliwal, Aurangabad V. Deputy Commissioner of Income-tax,

ITA 886/PUN/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8165 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-06-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 02-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS KESANG Y SHERPA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.886/PUN/2016 / ASSESSMENT YEAR : 2011-12 M/S. RAJ KASLIWAL, 215-216, APNA BAZAAR, AURANGABAD 431 003 PAN : AAJFR7942M . /APPELLANT VS. DCIT- CENTRAL, AURANGABAD . / RESPONDENT / APPELLANT BY : SHRI S.N. PURANIK / RESPONDENT BY : MRS. KESANG Y. SHERPA / DATE OF HEARING : 15.04.2019 / DATE OF PRONOUNCEMENT:16.04.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF C IT(A)- 12, PUNE, DATED 12-02-2016 INVOLVING ASSESSMENT YEAR 2011 -12. ITA NO. 886/PUN/2016 M/S. RAJ KASLIWAL 2 2. ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. CIT(A) HAS ERRED REJECTING/DISALLOWING APPELLANTS CLAIM OF DEDUCTION RS.9,74,91,682/- U/S.80IB(10), APPELLANT PRAYS FOR ALLOWING THE SAME. 2. APPELLANT PRAYS FOR JUST AND EQUITABLE RELIEF. 3. A.O. HAS ERRED IN CHARGING INTEREST U/S.234B, SAME M AY PLEASE BE CANCELLED. 4. APPELLANT PRAYS TO ADD, AMEND, ALTER, MODIFY, CLARIFY AND/OR WITHDRAW THE GROUNDS DURING APPELLATE PROCEEDINGS. 3. BRIEFLY STATED RELEVANT FACTS INCLUDE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CONSTRUCTION. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE CONSTRUCTED RESIDEN TIAL PROJECT NAMED KASLIWAL MARVEL. ASSESSEE FILED THE RETURN OF INCO ME DECLARING TOTAL INCOME AT NIL AND CLAIMED DEDUCTION OF RS.9,74,91,682/- U/S.80IB(10) OF THE ACT. IN THE ASSES SMENT PROCEEDINGS, AO MADE ADDITION OF THE SAID SUM ON ACCOUNT O F NON- COMPLETION OF THE PROJECT. THE LD. CIT(A) AFFIRMED THE VIEW OF THE AO IN THE FIRST APPELLATE PROCEEDINGS. AGGRIEVED WITH THE ORDE R OF CIT(A), ASSESSEE FILED THE PRESENT APPEAL WITH THE GROUNDS EXTRACTED ABOVE. ITA NO. 886/PUN/2016 M/S. RAJ KASLIWAL 3 4. AT THE OUTSET, DURING THE PROCEEDINGS BEFORE US, LD. COU NSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS A CASE WHERE THE ASSESSEE BEING A BUILDER EARNED INCOME OUT OF THE SAID ENTERPRISE AND CLAIM ED DEDUCTION OF RS.9,74,91,682/- U/S.80IB(10) OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, AO DENIED THE SAID CLAIM FOR WANT OF VALID COMPLETION/OCCUPANCY CERTIFICATE AND OTHER RELEVANT EVIDENCES. THE ASSESSEE COULD NOT IMPROVE THE CASE EVEN DURING THE FIRST APPELLATE PROCEEDINGS. 5. WITH THESE BACKGROUND FACTS RELATING TO THE CLAIM OF DEDUC TION U/S.80IB(10) OF THE ACT, LD. COUNSEL BROUGHT OUR ATTENTION TO THE PAPER BOOK CONTAINING ADDITIONAL EVIDENCES RUNNING INTO 210 PAGES. IN THIS REGARD, LD. COUNSEL MADE A REQUEST FOR ADMISSION OF THE SAID ADDITIONAL EVIDENCES WHICH INCLUDES THE COMPLETION CERTIFICATE ISSUED BY THE AURANGABAD MUNICIPAL CORPORATION AND MANY OTHER SUCH RELA TED DOCUMENTS. RELEVANT SUBMISSIONS MADE BY THE LD. COUNSEL IN WRITING VIDE THE LETTER DATED NIL (FILED BEFORE THE REGISTRY ON 26-10-1 8) ARE EXTRACTED HERE BELOW : 6. AFTER CONTINUOUS FOLLOW UP AND COMPLIANCES OF MINOR LACUNAS IN MAINTENANCE ASPECT ETC. FIRE DEPT. FINALLY ISSUED NO OBJECTION CERTIFICATE ON 16-08-2016 AND COMMISSIONER AMC REINSTATED THE CERTIFICATE DATED 31-03-2012 ON 03-04-2017 BY REVOKING CANCELLATION DATED 28-09-2012. ITA NO. 886/PUN/2016 M/S. RAJ KASLIWAL 4 THE CERTIFICATE OF OCCUPATION REINSTATED BY THE COMMISSIONER OF AMC DATED 03-04-2017 COULD NOT BE SUBMITTED BEFORE CIT(A) THOUGH HE ASKED FOR IT, AS SAME WAS NOT THEN RECEIVED. FURTHER APPELLANT HAS OBTAINED ORDER SHEETS AND FILE NOTING OF AMC, WHICH PROVES THAT CONSTRUCTION OF THE PROJECT WAS COMPLETE BEFORE 31-03-2012, AMC HAS LEVIED PROPERTY TAXES TO THE CUSTOMERS OF THE PROJECT ON THEIR RESPECTIVE UNITS FROM FINANCIAL YEAR 2012-13, ORDER SHEET FILE NOTING PROVE THE TIME TO VISIT/INSPECTION OF FIRE DEPARTMENT OFFICE HAS ONLY SOME MAINTENANCE AND REPAIRS QUERIES WHICH HAVE BEEN COMPLIED. RESIDENTIAL ELECTRICITY USED BY FLAT OCCUPIER (ON SAMPLE BASIS) AND POSSESSIONS GIVEN PROVES THAT FLATS UNITS SOLD DURING FINANCIAL YEAR 2010-11 ASSESSMENT YEAR 2011-12 WERE COMPLETE IN ALL RESPECTS AND PROJECT WAS COMPLETED BEFORE 31-03-2012. EVEN AMC COMMISSIONER APPROVED COMPLETION BEFORE 31-03-2012. LETTER DATED 03-04-2017 GIVING REFERENCES OF CORRESPONDENC E, AND REINSTATING/RESTORING THE ORIGINAL OCCUPANCY CERTIFICATE DATED 31-03-2012 AND REVOKING/WITHDRAWING CANCELLATION DATED 28-09-2012. AMC COMMISSIONERS REINSTATED CERTIFICATE, DATED 03-04-2017. THE OFFICE FILE NOTES OF DIFFERENT DEPARTMENTS AMC, PARTICULARLY FIRE BRIGADE ETC. OBTAINED UNDER RTI, BEING NEW EVIDENCE WHICH WAS NOT AVAILABLE DURING ASSESSMENT APPELLATE PROCEEDINGS WHICH GOES TO THE ROOT OF THE MATTER TO PROVE THAT HOUSING PROJECT WAS COMPLETED BEFORE 31-03-2012. APPELLANT HUMBLY PRAYS THAT HONOURABLE BENCH TO KINDLY ADMIT THE ADDITIONAL EVIDENCE AND ADJUDICATE THE SAME AS THE IMPORTANT EVIDENCE WAS NOT AVAILABLE FOR PRODUCING BEFORE LOWER AUTHORITIES. 6. ON CONSIDERING THE OBJECTIONS RAISED BY THE LD. DR FOR TH E REVENUE FOR ADMISSION OF THE SAID ADDITIONAL EVIDENCES, WE FIND IT RELEVANT AND APPROPRIATE TO ADMIT THE ADDITIONAL EVIDENCES CONSID ERING ITA NO. 886/PUN/2016 M/S. RAJ KASLIWAL 5 THE SIGNIFICANCE OF THE SAME. THE VALIDITY OF THE SAID COMPLE TION CERTIFICATE AND ITS ISSUANCE IS THE SUBJECT MATTER OF LITIGATION AND THE SAME GOES TO THE ROOT OF THE MATTER RELATING TO THE VALID CLAI M OF DEDUCTION U/S. 80IB(10) OF THE ACT. ACCORDINGLY, WE ORDER THE REVENUE AUTHORITIES TO ADMIT THE ADDITIONAL EVIDENCES AND RE-ADJUDICATE THE ONLY ISSUE OF CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT. THUS, THE IMPUGNED ORDER IS SET- ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF AO FOR MAK ING ASSESSMENT AFRESH. NEEDLESS TO SAY, AO SHALL GIVE REASON ABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH SET PRINCIPLES OF NATURAL JUSTICE. THE GROUNDS RAISED BY THE AS SESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 16 TH DAY OF APRIL, 2019. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE; DATED : 16 TH APRIL, 2019 ITA NO. 886/PUN/2016 M/S. RAJ KASLIWAL 6 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-12, PUNE. 4. THE PR. CIT CENTRAL, NAGPUR 5. , , / DR B, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, / TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE. DATE 1. DRAFT DICTATED ON 16-04-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16-04-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER.