M/s. Pentagon Developers, Pune V. Income-tax Officer, Ward -3 (1), Pune

MA 3/PUN/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5520 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 21-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V L JAIN
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E . , , ! ' , # $ BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AW ASTHY, JM M.A. NO.03/PUN/2019 (ARISING OUT OF ITA NO.393/PUN/2016) #% & '& / ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD-3(1), PUNE. ....... / APPELLANT % / V/S. M/S. PENTAGON DEVELOPERS, OFF. NO.504, ASHOK SANKUL-II, ASHOK NAGAR, RANGE HILL ROAD, PUNE-411 007. PAN : AAHFP8013B . / RESPONDENT/- /APPLICANT ASSESSEE BY : SHRI V.L. JAIN REVENUE BY : SHRI RAJESH GAWALI / DATE OF HEARING : 05.04.2019 / DATE OF PRONOUNCEMENT : 03.06.2019 ( / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSE E U/S.254 (2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO A S THE ACT) SEEKING RECTIFICATION OF THE TRIBUNAL ORDER DATED 20.07.2018 IN ITA N O.393/PUN/2016 FOR ASSESSMENT YEAR 2010-11. 2 MA NO.03/PUN/2019 A.Y.2010-11 2. SHRI V.L. JAIN APPEARING ON BEHALF OF THE ASSESSEE SUBMIT TED THAT THE TRIBUNAL IN PRINCIPLE HAS ALLOWED THE BENEFIT OF DEDUCTION U/S.8 0IB (10) OF THE ACT TO THE ASSESSEE. HOWEVER, IN PENULTIMATE PARAGRAPH (P ARA-8) OF THE ORDER, THE TRIBUNAL HAS RESTORED THE ISSUE TO ASSESSING OFFICER FO R THE LIMITED PURPOSE TO VERIFY THE DATE ON WHICH THE ASSESSEE HAS APPROACHED PUNE MUNICIPAL CORPORATION FOR ISSUANCE OF COMPLETION/OCCUPANCY CERTIFICAT E. BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESS EE HAD FILED ADDITIONAL EVIDENCES AND THE SAME WERE FORWARDED TO T HE ASSESSING OFFICER FOR HIS COMMENTS UNDER RULE 46A OF THE INCOME TAX RULES, 1962. THE ASSESSING OFFICER IN HIS REPORT DATED 07.07.2015 HAS SPECIFIC ALLY MENTIONED THAT SHRI VIKAS ACHALKAR, LICENSED ARCHITECT OF THE ASSESS EE HAD MADE AN APPLICATION FOR COMPLETION/OCCUPANCY CERTIFICATE TO PUNE MUN ICIPAL CORPORATION ON 30.03.2009. ONCE IN THE REPORT OF ASSESSING OFFICER TH E DATE OF SUCH APPLICATION IS MENTIONED, RESTORING THE ISSUE BACK TO ASSESSING OFFICER FOR SOME PURPOSES WOULD BE REDUNDANT. THE COMMISSIONER O F INCOME TAX (APPEALS) AFTER EXAMINING ALL THE RELEVANT FACTS HAD ALLOWED RE LIEF TO THE ASSESSEE. 3. ON THE OTHER HAND, SHRI RAJESH GAWALI REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ORDER OF TRIBUNAL IS FAIR AND JUSTIFIED. NO PREJUDICE WOULD BE CAUSED TO THE ASSESSEE IF THE SAME FACT IS VERIFIED AGA IN BY THE ASSESSING OFFICER. 4. BOTH SIDES HEARD. A PERUSAL OF THE TRIBUNAL ORDER DATE D 20.07.2018 IN ITA NO.393/PUN/2016 BY THE DEPARTMENT REVEALS THAT TH E ASSESSEE HAS BEEN HELD ELIGIBLE FOR CLAIMING DEDUCTION U/S.80IB(10) OF THE ACT. HOWE VER, THE ISSUE WAS RESTORED TO THE FILE OF ASSESSING OFFICER FOR LIMITED PURPOSE TO VERIFY THE DATE ON WHICH THE ASSESSEE APPROACHED THE PUNE M UNICIPAL CORPORATION FOR ISSUANCE OF COMPLETION /OCCUPANCY CERTIFICATE. THE PARA 8 OF THE TRIBUNAL 3 MA NO.03/PUN/2019 A.Y.2010-11 ORDER DATED 20.07.2018 WHEREIN THE TRIBUNAL HAS GIVEN TH E FINAL FINDINGS, IS REPRODUCED HEREIN BELOW : 8. IN THE INSTANT CASE WE FIND THAT THE ARCHITECT I SSUED COMPLETION CERTIFICATE CONFIRMING COMPLETION OF PROJECT AS PER SANCTIONED PLAN ON 16- 02-2011. HOWEVER, IT IS NOT EMANATING FROM RECORDS AS TO WHEN THE ASSESSEE APPLIED TO THE LOCAL AUTHORITY I.E. PMC FO R ISSUANCE OF OCCUPANCY CERTIFICATE. THE LD. AR FOR ASSESSEE HAS POINTED THAT THE PMC HAS APPROVED THE ISSUANCE OF COMPLETION CERTIFICATE BUT HAS WITHHELD THE FORMAL ISSUANCE OF CERTIFICATE FOR SOME COMPLIANCE. THIS FACT REQUIRES VERIFICATION. WE ARE OF CONSIDERED VIEW THAT THE BE NEFIT OF DEDUCTION U/S.80IB(10) SHOULD NOT BE DENIED TO THE ASSESSEE, IF THE ASSESSEE HAS APPLIED TO THE PMC FOR ISSUANCE OF COMPLETION /OCCU PANCY CERTIFICATE BEFORE THE DUE DATE I.E. 31-03-2011. THE ISSUE IS R ESTORED TO THE ASSESSING OFFICER FOR THE LIMITED PURPOSE TO VERIFY THE DATE ON WHICH THE ASSESSEE APPROACHED PMC FOR ISSUANCE OF COMPLETION/ OCCUPANCY CERTIFICATE. THE ASSESSEE IS DIRECTED TO FURNISH NE CESSARY RELEVANT DOCUMENTS TO THE ASSESSING OFFICER INDICATING THE D ATE ON WHICH THE ASSESSEE APPLIED TO PMC FOR ISSUANCE OF COMPLETION/ OCCUPANCY CERTIFICATE. THE ASSESSING OFFICER AFTER EXAMINING THE DOCUMENTS AND IN THE LIGHT OF OUR ABOVE OBSERVATIONS SHALL ALLOW/REJ ECT DEDUCTION U/S.80IB(10), AS THE CASE MAY BE. 5. A PERUSAL OF THE IMPUGNED ORDER REVEALS THAT THE CO MMISSIONER OF INCOME TAX (APPEALS) SOUGHT REPORT FROM THE ASSESSING O FFICER ON THE ADDITIONAL EVIDENCES FURNISHED BY THE ASSESSEE DURING FIRST APPELLATE PROCEEDINGS. THE ASSESSING OFFICER IN ITS REPORT DATED 07.07 .2015 HAS MENTIONED AS UNDER: 2. THE EXECUTIVE ENGINEER, ZONE-1, FROM OFFICE OF THE CITY ENGINEERS OFFICE PUNE VIDE HIS LETTER NO. OUTWARD NO/ZONEL/82 9 DATED 24.06.2005 STATED THAT THE APPLICATION FOR OCCUPANCY CERTIFICA TE WAS SUBMITTED TO THEIR OFFICE ON 30.03.2009 BY LICENSE ARCHITECT MR. VIKAS ACHALKAR. HOWEVER, AS PER THE SANCTIONED LAYOUT OF THE PLAN F OR ABOVE MENTIONED PROJECT, AMENITY SPACE OF 1519.10 SQ. MTRS AND 1100 .88 SQ.MTRS WAS SHOWN. OUT OF THESE TWO AMENITIES SPACES ONLY 1519. 10 SQ. MTRS SPACE HANDED OVER TO THE PMC VIDE 7/12 EXTRACT DATED 22.0 2.2013. IT IS CLEARLY MENTIONED THAT THE PROCESS OF ISSUING COMPLETION CE RTIFICATE WILL BE COMPLETED ONLY AFTER REMAINING AMENITY SPACE OF 110 0.58 SQ. MTRS WILL BE HANDED OVER TO PMC. 6. SINCE, THE ASSESSING OFFICER HAS ALREADY VERIFIED FROM OFFICE OF T HE PUNE MUNICIPAL CORPORATION THE DATE ON WHICH APPLICATION FOR COMP LETION /OCCUPANCY CERTIFICATE WAS SUBMITTED, WE FIND THAT RESTORING THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR THE PURPOSE OF VERIFYING DATE WOULD BE AN EXERCISE IN FUTILITY. THIS VITAL FACT WAS INADVERTENTLY OVERLO OKED WHILE PASSING 4 MA NO.03/PUN/2019 A.Y.2010-11 THE ORDER DATED 20.07.2018; HENCE THE MISTAKE CREPT IN T HE ORDER THAT NEEDS TO BE RECTIFIED. ACCORDINGLY, PARA 8 & 9 OF THE ORDER OF TR IBUNAL DATED 20.07.2018 ARE MODIFIED AS UNDER: 8. IN THE INSTANT CASE WE OBSERVE THAT THE ASSESSIN G OFFICER IN REMAND PROCEEDINGS AFTER VERIFYING FROM THE OFFI CE OF EXECUTIVE ENGINEER, PUNE MUNICIPAL CORPORATION HAS MADE CATEGORIC OBSERVATION IN HIS REPORT THAT THE ARCHIT ECT OF ASSESSEE HAD MADE AN APPLICATION FOR ISSUANCE OF COMPLETION/OCCUPANCY CERTIFICATE ON 30.03.2009. WE ARE OF CONSIDERED VIEW THAT THE BENEFIT OF DEDUCTION U/S.8 0IB(10) SHOULD NOT BE DENIED TO THE ASSESSEE, IF THE ASSESS EE HAS APPLIED TO THE PMC FOR ISSUANCE OF COMPLETION /OCCU PANCY CERTIFICATE BEFORE THE DUE DATE I.E. 31-03-2011. THUS , IN VIEW OF FACTUAL POSITION NOTED ABOVE, WE FIND NO REASON TO INTERFERE WITH ORDER OF COMMISSIONER OF INCOME TAX (APPEALS). THE IMPUGNED ORDER IS UPHELD AND THE APP EAL OF REVENUE IS DISMISSED BEING WITHOUT MERIT. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOW ED. ORDER PRONOUNCED ON MONDAY, THE 3 RD DAY OF JUNE, 2019. SD/- SD/- ( . / D. KARUNAKARA RAO ) ( ! ' /VIKAS AWASTHY) / ACCOUNTANT MEMBER ! / JUDICIAL MEMBER / PUNE; '# / DATED : 3 RD JUNE, 2019. SB ( ) *#+,! -!'+ / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-10, PUNE. 4. THE PR. COMMISSIONER OF INCOME TAX-2, PUNE. 5. &'( !!)* , )* , +,- , / DR, ITAT, B BENCH, PUNE. 6. (./ 01 / GUARD FILE. // TRUE COPY // 2 / BY ORDER, !3 )- / PRIVATE SECRETARY )* , / ITAT, PUNE. 5 MA NO.03/PUN/2019 A.Y.2010-11 DATE 1 DRAFT DICTATED ON 29.05.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 29.05.2019 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER