M/s Alliance Builders & Contractors Ltd., Kanpur V. DY. Commissioner of Income Tax, Kanpur

MA 14/LKW/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6286 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K R RASTOGI
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. NO.14/LKW/2017 [ ARISING OUT OF C.O. NO.28/LKW/2011 IN ITA NO. 409/LKW/2011 & ITA NO.409/LK W/2011 ] ASSESSMENT YEAR: 2008 - 09 M/S ALLIANCE BUILDER AND CONTRACTORS LTD. 24/4, THE MALL KANPUR V. DCIT CENTRAL CIRCLE 2 KANPUR T AN /PAN : AAECA8217A (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI K. R. RASTOGI, FCA RESPONDENT BY: SHRI RAJIV KUMAR, D.R DATE OF HEARING: 09 02 201 8 DATE OF PRONOUNCEMENT: 20 0 2 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS MISCELLANEOUS APPLICATION PREFERRED BY THE ASSESSEE ARISES OUT OF THE ORDER OF THE TRIBUNAL DATED 28/4/2017 IN C.O. NO.28/LKW/2011 AN D ITA NO.409/LKW/2011. 2 . AT THE OUTSET, T HE LD. A.R. OF THE ASSESSEE INVITED OUR ATTENTION TO PARA 15 OF THE ORDER OF THE TRIBUNAL DATED 28/4/2017, WHICH IS REPRODUCED AS UNDER: - 15. OUR ATTENTION WAS INVITED TO VARIOUS JUDICIAL PRONOUNCEMENTS RENDERED ON T HE ISSUE WHERE COMPLETION CERTIFICATES ARE NOT TIMELY ISSUED BY THE LOCAL AUTHORITY. IN THOSE CASES, THE TRIBUNAL HAS TAKEN THE DATE OTHER THAN THE DATE OF M.A. NO.14/LKW/2017 PAGE 2 OF 5 ISSUANCE OF COMPLETION DATE AS COMPLETION OF THE PROJECT WHERE THE ASSESSEE HAS SUCCESSFULLY PROVED THE DATE OF COMPLETION OF PROJECT OTHER THAN THE DATE OF WHICH COMPLETION CERTIFICATE WAS ISSUED BY PLACING CONCLUSIVE EVIDENCE IN SUPPORT OF THE DATE OF COMPLETION OF THE PROJECT. IN THOSE CASES, EITHER THE SALE DEED OR THE EVIDENCE OF POSSESSION GIVEN T O THE BUYERS WAS FILED. IN THE INSTANT CASE, THE ASSESSEE WAS ASKED TO FILE ANY EVIDENCE EITHER IN THE SHAPE OF SALE DEED EXECUTED IN FAVOUR OF THE PROSPECTIVE BUYERS OR OTHER EVIDENCE TO ESTABLISH THAT THE PROJECT WAS COMPLETED BEFORE THE SPECIFIED DATE. THE ASSESSEE HAS SIMPLY FILED A LIST OF PROPOSED BUYERS AND DATES OF POSSESSION GIVEN, BUT IN SUPPORT THEREOF NO DOCUMENTARY EVIDENCE HAS BEEN FILED. THE ASSESSEE HAS FILED LETTERS OF THE PROSPECTIVE BUYERS WITH REGARD TO THE POSSESSION OF FLATS BUT IN ALL THESE BUNCH OF LETTERS, NO ADDRESS OF THE PROSPECTIVE BUYERS IS GIVEN. SIMPLY NAME WAS MENTIONED AND IN THE ABSENCE OF COMPLETE ADDRESS OF THE BUYER, PROPER VERIFICATION WITH REGARD TO THE POSSESSION OF THE FLATS CANNOT BE MADE. MOREOVER, THESE DOCUM ENTS ARE FILED BEFORE THE TRIBUNAL IN THE FORM OF ADDITIONAL EVIDENCE. IN THE ABSENCE OF ADDRESSES OF THE PROSPECTIVE BUYERS, THESE DOCUMENTS CANNOT BE RELIED ON IN ORDER TO DETERMINE THE DATE OF COMPLETION OF THE PROJECT. NO DOCUMENTARY EVIDENCE WAS FIL ED BY THE ASSESSEE BEFORE ANY OF THE LOWER AUTHORITIES TO ESTABLISH THE DATE OF COMPLETION OF THE PROJECT. THE ASSESSEE HAS FILED COPY OF LETTERS SEEKING COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY. COPIES OF LETTERS ARE AVAILABLE AT PAGES 232 TO 248 OF THE COMPILATION OF THE ASSESSEE. THESE LETTERS ARE ALMOST IDENTICAL. OUR ATTENTION WAS ALSO INVITED TO THE INFORMATION OBTAINED BY THE ASSESSEE UNDER THE RTI ACT FROM THE BAREILLY DEVELOPMENT AUTHORITY WHICH IS AVAILABLE AT PAGE 253 OF THE COMPILATIO N OF THE ASSESSEE, IN WHICH THEY HAVE REPLIED THAT THE COMPLETION CERTIFICATE CAN BE APPLIED IN A PARTICULAR FORMAT ALONG WITH SITE PLAN AS PER RULES, MEANING THEREBY THAT THE COMPLETION CERTIFICATE CAN BE APPLIED IN A PARTICULAR FORMAT ALONG WITH SITE PLA N AND OTHER NECESSARY DOCUMENTS. THEREAFTER M.A. NO.14/LKW/2017 PAGE 3 OF 5 INSPECTION CAN BE CARRIED ON BY THE LOCAL AUTHORITIES BEFORE ISSUANCE OF THE COMPLETION CERTIFICATE. BUT FROM A PERUSAL OF THE LETTERS APPEARING AT PAGES 232 TO 248 OF THE COMPILATION OF THE ASSESSEE, IT APPEARS THAT NO REQUEST WAS EVER MADE BY THE ASSESSEE FOR ISSUANCE OF COMPLETION CERTIFICATE IN THE SPECIFIED FORMAT ALONG WITH REQUISITE DOCUMENTS. THEREFORE, ON THE BASIS OF THESE LETTERS, THE DATE OF COMPLETION OF THE HOUSING PROJECT CANNOT BE DETERMINED BY T HE BAREILLY DEVELOPMENT AUTHORITY. IF THE ASSESSEE WAS SERIOUSLY INTERESTED IN OBTAINING THE COMPLETION CERTIFICATE, A REQUEST COULD HAVE BEEN MADE IN THE PROPER FORMAT ALONG WITH REQUISITE DOCUMENTS AND EVEN IF THE COMPLETION CERTIFICATE WAS NOT ISSUED T O THE ASSESSEE, A SPECIFIC REMINDER COULD HAVE BEEN MADE AND OTHER EFFORTS SHOULD HAVE BEEN MADE TO OBTAIN THE COMPLETION CERTIFICATE. BUT ON THE BASIS OF ONE TYPE OF LETTER WRITTEN ON DIFFERENT DATES, THE DATE OF COMPLETION AS ALLEGED BY THE ASSESSEE CAN NOT BE ACCEPTED; WHEREAS THE ASSESSING OFFICER HAS MADE NECESSARY ENQUIRIES FROM THE LOCAL AUTHORITY WITH REGARD TO THE ISSUANCE OF COMPLETION CERTIFICATE AND HE WAS DULY INFORMED THAT NO COMPLETION CERTIFICATE WAS EVER ISSUED TO THE ASSESSEE FOR THE SAID HOUSING PROJECTS. THEREFORE, IN THE ABSENCE OF ANY CONCLUSIVE EVIDENCE WITH REGARD TO THE COMPLETION OF THE PROJECTS, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER HAS RIGHTLY DENIED THE DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 80 - IB(10) OF THE ACT . 3 . THE LD. A.R. OF THE ASSESSEE , INVITING OUR ATTENTION TO ABOVE OBSERVATION OF THE TRIBUNAL , SUBMITTED THAT THE TRIBUNAL IN THE BODY OF THE ORDER NOTED THAT ASSESSEE HAS SIMPLY FILED A LIST OF PROPOSED BUYERS AND DATES OF POSSESSION GIVEN, BUT IN SUPPORT T HEREOF NO DOCUMENTARY EVIDENCE WAS FILED. THERE WERE NO ADDRESS OF THE PROSPECTIVE BUYERS. IN THE ABSENCE OF ADDRESSES OF THE PROSPECTIVE BUYERS, THESE DOCUMENTS CANNOT BE RELIED ON . THIS OBSERVATION OF THE TRIBUNAL IS A MISTAKE APPARENT ON RECORD BECAU SE ALL THE RELEVANT DETAILS/DOCUMENTS WERE M.A. NO.14/LKW/2017 PAGE 4 OF 5 PLACED BEFORE THE TRIBUNAL AND THE TRIBUNAL WITHOUT CONS IDERING THESE DETAILS/DOCUMENTS CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER UNDER SECTION 80 - IB OF THE ACT, THEREFORE, THERE IS A MISTAKE APPARE NT ON RECORD WHICH NEEDS RE CTIFICATION . THEREFORE, THE ORDER OF THE T RIBUNAL MAY BE RECALLED AND THE ISSUE MAY BE DECIDED AFRESH ON THE BASIS OF DOCUMENTS/DETAILS PLACED ON RECORD. 4 . WE HAVE PERUSED THE CASE RECORDS, HEARD THE RIVAL CONTENTIONS, ANALYSED TH E FACTS AND WE FIND THAT IN THE VOLUMINOUS PAPER BOOK FILED BEFORE THE TRIBUNAL CONSISTING VOLUME I, II AND III , SUPPORTING DOCUMENTS LIKE ELECTRICITY CONNECTIONS OF HOUSING PROJECT, HOUSE OWNER - WISE FROM RTI, DETAILS OF POSSESSION FROM OWNERS IN THE FORM OF POSSESSION LETTER AND ENGINEER CERTIFICATE, ARCHITECT COMPLETION CERTIFICATE AND APPROVAL SANCTIONED BY THE LOCAL AUTHORITY WE RE GIVEN. WE FIND THAT ALL THESE DOCUMENTS WERE FILED PRIOR TO ISSUANCE OF THE ORDER BY ITAT , WHICH WAS PASSED ON 28/4/2015. THE OBSERVATION OF THE TRIBUNAL THAT NO ADDRESS ES OF THE BUYERS WERE PROVIDED IS , THEREFORE, A MISTAKE APPARENT ON RECORD, WHICH NEEDS TO BE RECTIFIED. 5 . THE LD. A.R. OF THE ASSESSEE FURTHER POINTED OUT THAT BEFORE THE ITAT ASSESSEE HAD TAKEN ADDITIONAL GROU NDS IN THE CROSS OBJECTION WHICH IS ON RECORD. HOWEVER, THOSE ADDITIONAL GROUNDS OF THE CROSS OBJECTION, SPECIALLY GROUND NO.5 RELATING TO ISSUE OF NET PROFIT, WERE NOT ADJUDICATED UPON. 6 . WE HAVE PERUSED THE ORDER OF THE TRIBUNAL AND WE FIND THAT THE ORDER IS SILENT ABOUT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE IN THE CROSS OBJECTION , WHICH IS ALSO A MISTAKE APPARENT ON RECORD. M.A. NO.14/LKW/2017 PAGE 5 OF 5 7 . THE LD. A.R. OF THE ASSESSEE FURTHER POINTED OUT THAT GROUND NO.4 OF THE APPEAL OF THE REVENUE WAS NOT ADJUDICATED UPON , WHIC H ALSO NEEDS ADJUDICATION BY THE TRIBUNAL . 8 . WE HAVE PERUSED THE ORDER OF THE TRIBUNAL AND WE FIND THAT GROUND NO.4 OF THE APPEAL OF THE REVENUE WAS NOT ADJUDICATED UPON. WE ARE , THEREFORE, OF THE CONSIDERED VIEW THAT IN VIEW OF AFORESAID DISCUSSION S, THERE APPEARS TO BE MISTAKE S APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL AND, THEREFORE, IN THE INTEREST OF JUSTICE, WE RECALL OUR ORDER DATED 28/4/2017 AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR FRESH HEARING IN REGULAR COURSE. 9 . IN THE RESULT, MISCELLANE OUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 / 0 2 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20 TH FEBR UARY , 201 8 JJ: 0902 COPY FORWARDED TO: 1 . APPELLANT 2 . RE SPONDENT 3 . CIT(A) 4 . CIT 5 . DR