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Income Tax Appellate Tribunal, “B” BENCH, PUNE
Before: SHRI ANIL CHATURVEDI, AM & SHRI PARTHA SARATHI CHAUDHURY, JM
आदेश / ORDER
PER PARTHA SARATHI CHAUDHURY, JM :
This appeal preferred by the assessee emanates from the order of the Ld. CIT(Appeals)-12, Pune dated 13.10.2016 for the assessment year 2012-13 as per following grounds of appeal on record:
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“1. Commissioner (Appeals) has erred in confirming the assessment by assessing officer assessing the income at Rs.5,13,58,770/- as against returned income of Rs. Nil. 2. In view of the facts and circumstances of the case, CIT(A) has erred both of facts as well as in law in rejecting appellant claim of deduction u/s.80IB(10) of the Act, 1961. Appellant prays for cancellation of disallowance. 3. Appellant prays just and equitable relief. 4. Assessing Officer has erred in charging interest u/s.234B, C and other sections. 5. Appellant prays to add, alter, amend, modify and /or withdraw the ground/s , during the Appellate Proceedings.”
The crux of the grievance of the assessee in this appeal is denial of
deduction u/s.80IB(10) of the Income Tax Act, 1961 (hereinafter referred to
as ‘the Act’).
The brief facts in this case are that the assessee is a partnership firm
engaged in construction of residential projects. The return of income was
furnished on 30.09.2012 declaring total income of Rs. Nil. During the year
under consideration, the assessee has shown profit of Rs.5,13,58,770/- and
also claimed reduction u/s.80IB(10) of the Act of Rs.5,13,58,770/-. The
Assessing Officer denied the deduction u/s.80IB(10) of the Act as the
assessee failed to file certificate of the completion of project and determined
total income at Rs.5,13,58,770/-.
At the time of hearing, the Ld. AR of the assessee submitted that at the
time of assessment proceedings as well as at the time of hearing before the
Ld. CIT(Appeals), the assessee had not procured ‘Completion Certificate’ for
the project in question. However, at the present date, the assessee has
procured the said ‘Completion Certificate’ for the project which has been filed
also in the paper book before us. The Ld. AR of the assessee prayed that in
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view of the ‘Completion Certificate’ being received, the matter may be restored
back to the file of the Assessing Officer for proper adjudication and this view
in terms of fact is absolutely similar to the decision of the Co-ordinate Pune
Bench of the Tribunal in ITA No.886/PUN/2016 for the assessment year
2011-12 in the case of M/s. Raj Kasliwal Vs. DCIT wherein the Co-ordinate
Bench of the Tribunal has observed that the Assessing Officer denied the
claim of deduction u/s.80IB(10) of the Act for want of valid ‘Completion
/Occupancy Certificate’. The Assessee could not improve the case even during
the First Appellate Proceedings. Therefore, as additional evidence, the
‘Completion Certificate’ was accepted by the Pune Bench of the Tribunal since
the same goes to the root of the matter relating to the valid claim of deduction
u/s.80IB(10) of the Act and the matter was remitted back to the file of the
Assessing Officer for making fresh assessment.
The Ld. DR, per contra, has placed reliance on the findings of the Sub-
ordinate Authorities. However, principally agreed that the matter is similar in
facts with ITA No.886/PUN/2016 (supra.).
We have perused the case records and heard the rival contentions and
given considerable thought to the judicial pronouncement placed on record.
That on perusal of the facts of the present case as well as the facts as
appearing in ITA No.886/PUN/2016 (supra.), we find they are substantially
similar. In that case, the Co-ordinate Bench of the Tribunal has observed as
under:
“6. On considering the objections raised by the Ld. DR for the Revenue for admission of the said additional evidences, we find it relevant and appropriate to admit the additional evidences considering the significance of the same. The validity of the said completion certificate and its issuance is the subject matter of litigation and the same goes to the root of the matter relating to the valid claim of deduction u/s.80IB(10) of the Act.
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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 making assessment afresh. Needless to say, AO shall give reasonable opportunity of being heard to the assessee in accordance with set principle of natural justice. The grounds raised by the assessee are allowed for statistical purposes.”
Reverting to the facts of the present case, the assessee was not in
possession of the ‘Completion Certificate’ at the relevant point of time when
the proceedings were going on before the Revenue Authorities. However, at
present the assessee has filed ‘Completion Certificate’ before us and has
pleaded that in view of earlier decision of the Pune Bench of the Tribunal as
cited herein above, the matter may be restored back to the file of Assessing
Officer for proper adjudication in the interest of justice.
In view of the matter, we set aside the order of the Ld. CIT(Appeals) and
restore the matter back to the file of Assessing Officer to adjudicate the issue
after considering the ‘Completion Certificate’ which is now in possession of
the assessee and as per law after providing reasonable opportunity of hearing
to the assessee.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced on 30th day of April, 2019.
Sd/- Sd/- ANIL CHATURVEDI PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER
पुणे / Pune; �दनांक / Dated : 30th April, 2019. SB
5 ITA No.142 /PUN/2017 A.Y.2012-13
आदेश क� ��त�ल�प अ�े�षत / Copy of the Order forwarded to :
अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(Appeals)-12, Pune. 4. The Pr. CIT, Central, Nagpur. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, “बी ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6.
// True Copy // आदेशानुसार / BY ORDER,
�नजी स�चव / Private Secretary आयकर अपील�य अ�धकरण, पुणे / ITAT, Pune.
6 ITA No.142 /PUN/2017 A.Y.2012-13
Date 1 Draft dictated on 30.04.2019 Sr.PS/PS 2 Draft placed before author 30.04.2019 Sr.PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 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