VIJAY TUKARAM RAUNDAL,PUNE vs. THE DEPUTY COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE-1(2), PUNE

Facts of the case, in brief, are that the assessee is an individual and proprietor of M/s. Teerth Developers carrying on business of real estate development. He filed his return of income on 30.09.2013 declaring total income of Rs.28,71,109/- after claiming deduction u/s 80IB(10) of the Act amounting to Rs.45,89,97,747/-. The deduction u/s 80IB(10) of the Act was claimed in respect of housing project namely ‘Teerth Towers’ which consisted of 7 buildings and commercial shops. The assessee had been following project completion method by recognizing the income, as a result of which all the expenses incurred on the project till the immediately preceding financial year were shown as work-in- progress. During the year under consideration the assessee sold the entire units of building ‘A’ to ‘F’ for a sum of Rs.90,92,08,550/-. The Assessing Officer noticed that the assessee has contravened the provisions of section 80IB(10) of the Act inasmuch as the project was not completed within five years from the end of the financial year in which the housing project was approved by the local authority and some of the bungalows are exceeding area of more than 1500 sq.ft. as prescribed in section 80IB(10)(c). He observed that the housing project was approved by the competent authority vide order No.NA/SR/51/07 dated 30.03.2013. The Assessing Officer noted that a survey action u/s 133A of the Act was carried out on 23.03.2015 during which a Commission was issued to the Registered Valuer Shri Nitin Lele u/s 131(d) for examining the eligibility of the project ‘Teerth Towers’ under the provisions of section 80IB(10) of the Act. The Registered Valuer submitted his report on 02.03.2015 wherein he pointed out the following contraventions of the conditions laid down in section 80IB(10) of the Act: “i) Sec. 80IB(10)(a) - Date of commencement and completion of the project. The first approval for the project was received vide order No.NA/SR/51/07 dated 30/03/2007, the required date of completion of the project is on or before 31/03/2012. However, the final completion certificate of the project is issued on 30/03/2013 and therefore, the project cannot be said to be completed within the stipulated period. ii) Sec.80IB(10) (c) built-up area of the units in the project. As per definition given in clause (a) of Sec. 80IB(14), the 'built-up area' means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units. On physical verification, the area of the two bungalows forming part of Building No. G was found to be as under:-

In appeal, the Ld. CIT(A) allowed the claim of the assessee u/s 80IB(10) of the Act on the ground that the N.A. order dated 30.03.2007 was granted subject to compliance to certain conditions and the condition No.3 made obligatory for the assessee to get demarcation of the land from the office of District Inspector Land Record before commencement of the development work, which actually happened on 22.08.2007. This date being within a period of five years from the end of the financial year in which the housing project was approved, he held that the assessee is eligible for the deduction u/s 80IB(10) of the Act.

Aggrieved with such order of the Ld. CIT(A) the Revenue preferred an appeal before the Tribunal. The Tribunal vide and CO No.24/PUN/2021 vide order dated 30.08.2022 for assessment year 2013-14 allowed the appeal filed by the Revenue. While doing so, it held that the housing project was approved on 30.03.2007 and the period of five years from the end of the financial year in which the housing project was approved by the local authority came to an end on 31.03.2012. Since the actual completion of the project took place between 24.09.2012 (when the assessee intimated the factum of virtual completion of the project to the District Collector) and 30.03.2013 (when the completion certificate was issued by the competent authority), the condition of completing the construction within a period of five years from the end of the financial year in which the housing project was approved, got vitiated, making the assessee ineligible for deduction u/s 80IB(10) of the Act. The relevant observations of the Tribunal from para 4 to 20 read as under: “4. We have heard the rival submissions and perused the relevant material on record. The case of the Department is that the assessee did not fulfil the condition of completing the project within five years from the end of the financial year in which the housing project was approved by the local authority, viz., The District

Adverting to the facts of the instant case, we find that the date of completion certificate issued by the competent authority, a copy placed at page 133A of the paper book, is 30-03-2013. The assessee lodged a claim before the Tribunal that though the completion certificate was issued on this date, but the project was actually completed on 7-03-2012, when it intimated about the completion of construction to the District Collector, Pune vide its letter, a copy placed at page 215 of the paper book It is also claimed that another letter intimating about the completion of the project was sent to the District Collector, Pune on 24-09-2012, whose copy is available at page 217 of the paper book. The Id. AR argued that the date of completion of construction should be taken as the date when the project was actually completed, namely, 7-03-2012.

Explanation (i) to section 80IB(10)(a) states that in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority. The legal position which, therefore, emerges is that the crucial timeline under consideration is the date of approval of the housing project by the local authority, which in this case, is the District Collector, Pune. Thus, it is the date of approval by the District Collector, Pune, from which the period of five years is to be reckoned.

At this stage, we need to ascertain the logic behind the Explanation (i), which provides that where the approval in respect of the housing project is obtained more than once, the housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority. The requirement for this Explanation arose to deal with certain situations requiring the assessee to seek re-approval of the housing project from the local authority. One situation could be where the approval is subject to certain conditions to be certified by some other statutory authority and some variation actually happens on such certification vis-à-vis the originally approved plan. In that case, the assessee again needs to get the final approval from the local authority before starting development work. To deal with such contingencies, the legislature provided that even if more than one approval is received, the period of five years will run with reference to the first approval granted by the local authority to the housing project.

Now we advert to the relevant facts of the case for finding out the date of approval by the competent authority Office of the District Collector, Pune granted permission on 30-03-2007 to the assessee's application dated 21-12-2006, whose copy is available at page 125A of the paper book. Opening part of this order states that "P.A. Vijay Tukaram Raundal….. and others has requested for getting Non- Agricultural permission and approval for building plan for residential use on Survey No….. owned by him vide his application dated 21-12-2006". This order further records in para 2: "As the residential construction drawings for the above location submitted by the applicant, this area being outside the limits of Municipal Corporation, were sent for examination to the Assistant Director, Urban Planning. Pune and the Assistant Director. Town Planning, Pune has examined and conveyed vide their outward no. Drawing/NABP/M Sus/Tal Mulshi/S.No.28/2 and others/SSP/1056 dt. 30-03-2007 that on examination of planned residential use space drawings of the referred place, they generally seem to appropriate as per the existing guidelines". This shows that the assessee applied for getting both the N.A. permission and approval for building plan of the project to the District Collector. Pune. On finding that the area was outside the limits of Municipal Corporation, the District Collector, Pune sought the opinion of the Assistant Director, Urban Planning, and the latter vide his order dated 30-03-2007, gave a green signal on finding the drawings of the planned residential site to be appropriate. On the basis of that order, the District Collector, Pune gave permission for NA. use and also approved the building plan for construction on that very date itself, namely, 30-3-2007 by observing that grant the non- agriculture and building plans purpose. This permission was granted on certain terms and conditions and one of the terms. considered by the Id. CIT(A) for deciding the issue in favour of the assessee, has been set out at St. No. 3, which reads as under "This drawing will have to be marked on the ground and certified by the land records department before commencing any development work here. After marking on the ground, the minimum area of any piece of land must not be less than that shown on the drawing. Also, the area of road widening must not measure less than the approved drawings. If there is any variation, it has to be re-approved. No development be done without the final approval of a copy of such certified drawing submitted to the Hon'ble District Collector and this office."

When we read sub-clause (ii) to section 80IB(10)(a) in juxtaposition to the Explanation (i), the position which comes to the fore is that construction of the housing project has to be completed within a period of five years from the end of the financial year in which it is approved by the local authority and where the multiple approvals are obtained, the date of the approval shall be deemed to be the date on which the building plan of such housing project is first approved by the local authority. Applying this legal position to the facts of the present case, we find that the housing project has been approved only once by the District Collector, Pune on 30-3-2007. Arguendo, the contention of the id. AR that the date of the certificate by the office of the Land record department should be taken as the date of approval, it would still not alter the crucial date, which, in case of multiple approvals, is when the approval was first granted. The date of first approval to the housing project by the District Collector, Pune is 30-3-2007, which does not get erased by the date of certificate issued by the office of land records department.

At this juncture, it would be relevant to take note of the Constitution Bench judgment of the Hon'ble Supreme Court, relied by the Id. DR. in Commissioner of Customs (Import) v. Dilip Kumar and Co. [2018] 95 taxmann.com 327/69 GST 239/361 ELT 577/2018] 9 SCC 1. The Constitution Bench was set up to examine the correctness of the ratio in Sun Export Corpn. v Collector of Customs 1997 taxmann.com 696/1997 (93) ELT. 641 (SC)/([1997] 6 SCC 564 and the question posed before it was- "What is the interpretative rule to be applied while interpreting a tax exemption provision/notification when there is ambiguity as to its applicability with reference to the entitlement of the assessee or the rate of tax to be applied?" The Hon'ble Constitution Bench took note of its earlier judgment in Tata Iron & Steel Co. Ltd. v. State of Jharkand 2006 taxmann.com 1843/2005 (140) ELT 284 (SC)/[2005] 4 SCC 272 in which it was held that the principle that in the event a provision of fiscal statute is obscure such construction which favours the assessee may be adopted, and held in the Constitution Bench judgment that such principle would have no application to construction of an exemption notification. It went on to hold that in such a case it is for the assessee to show that he comes within the purview of exemption. After considering the issue in detail, the Bench held that exemption notification should be interpreted strictly and "the burden of proving the applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification". It further held that When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed extended to the subject/assessee and it must be interpreted in favour of the Revenue Going with the ratio decidendi of this Constitution Bench judgment, it is manifested that the assessee has to strictly satisfy the conditions as given in the section for availing the deduction and in case of any doubt or ambiguity, the benefit of interpretation has to be given in favour of the Revenue.

Extantly, we are concerned with a situation in which there is no ambiguity in the relevant language of section 80IB(10) and even on the plain interpretation of the provision, it is clear that the period of five years for completion of construction has to be reckoned from the end of the financial year in which the building plan of the housing project is first approved by the local authority.

The ld. AR heavily relied on the judgment of Hon'ble Bombay High Court in Jamunabai Parmananddas Shah v Bajirao Seetaram Kalbhor [1995] (1) Mh.L.J 564. This judgment was rendered in the context of Maharashtra Land Revenue Code and Bombay Tenancy and Agricultural Land Act. The question before the Hon'ble Bombay High Court, as set out in the beginning, was: "When and under what circumstances can it be said that the character and definition of agricultural land stand altered to non-agricultural land pursuant to the permission being granted by the Collector for non-agricultural use in that case, the plaintiffs purchased certain land through a registered sale deed dated 20-3-1965. Prior to that, the competent authority granted NA permission to the respondent by an order dated 9-10-1964. The issue before the Hon'ble Court was about the date of change of the character of land. The NA permission was granted u/s 65 of the Land Revenue Code subject to the condition that the applicant shall commence the non- agricultural use of this plot within a period of six months from the date of this order, failing which it shall be deemed to have been cancelled. The Hon'ble High Court held that the order granting permission u/s. 65 of the Maharashtra Land Revenue Code granting permission for NA use was conditional and it did not automatically come into operation. The order would become operational and effective only on the compliance of the condition satisfied therein within the prescribed time. It can be seen from the facts of that case that the issue raised was about the date of coming into operation of the NA order, which was held to be actually becoming operational on the fulfilment of the condition. The Id. AR sought support of this judgment for canvassing a view that the condition No. 3 given in the order by the District Collector was to be considered as a condition precedent for compliance and unless that condition of marking was fulfilled, the NA order should not be considered to have come into force. In our considered opinion, this argument is far-fetched. It can be seen from the judgment itself that the question for consideration was about the date of change of the character of agricultural land to non-agricultural land pursuant to the permission granted by the Collector for non-agricultural use. Au contraire, we are considering the language of section 801B(10), which requires interpretation of the financial year in which the housing project is approved by the local authority The texts as well as contexts of both the cases are altogether different and are streets away from each other. Ergo, the reliance of the Id. AR on this judgment is of no consequence in the present case.

The Id. AR also relied on a decision of the Bombay Bench of the Tribunal in Shree Krishna Sai Development Corpn. v. ITO [2011] 9 taxmann.com 153/130 ITD 31/139 TTJ 123 (Mum.). In that case, the assessment years orders under consideration were 2005-06 and 2006-07 and the assessee claimed deduction u/s 80IB(10) in earlier years which was accepted in the assessments completed u/s 143(3). The CIT assuming jurisdiction u/s 263 opined that deduction u/s 80IB(10) should not have been allowed by the AO without proper verification of the certificate issued by the CIDCO indicating the date of commencement as 7-04- 1998 The Tribunal considered the fact that though the commencement certificate issued by the CIDCO indicated the date of commencement as 7-04-1998, the actual commencement took place only after obtaining permission from the District Collector on 19-05-1999. It was held that the date as per CIDCO certificate was irrelevant It was only the date of District Collector which was held to be relevant. When we apply the ratio of this decision to the facts of the instant case, it rather than advancing the case of the assessee, fortifies the view of the AO in considering the date of certificate issued by the District Collector as the relevant date for consideration.

After the order of the Tribunal the Assessing Officer initiated penalty proceedings u/s 271(1)(c) of the Act. Rejecting the various explanations given by the assessee, the Assessing Officer levied penalty of Rs.15,38,96,534/- being penalty @ 100% of tax sought to be evaded. While levying the penalty the Assessing Officer, relying on various decisions, held that the assessee has furnished inaccurate particulars of his income and had there been no survey, the assessee would have escaped by claiming deduction u/s 80IB(10) of the Act.

So far as the merit of the case is concerned, the assessee relying on various decisions submitted that full particulars were given and the Ld. CIT(A) allowed the claim of the assessee in the original quantum appeal proceedings. It was further argued that the issue of allowability of deduction u/s 80IB(10) is a debatable issue and therefore no penalty should be levied.

However, the Ld. CIT(A) was not satisfied with the arguments advanced by the assessee. So far as the argument of the assessee that inappropriate words have not been struck off in the notice issued u/s 274 and therefore in the light of the decision of Hon’ble Bombay High Court in the case of Mohd. Farhan A. Shaik (supra) the penalty is not leviable is concerned, the Ld. CIT(A) relying on the subsequent decision Hon’ble Bombay High Court in the case of Veena Estate P. Ltd. vs. CIT reported in 158 taxmann.com 341 (Bom) rejected the arguments advanced by the assessee. He noted that Hon’ble Bombay High Court in the case of Veena Estate P. Ltd. vs. CIT (supra) after considering the facts of the case in the case of Mohd. Farhan A. Shaik (supra) has held that when the assessee responds to the notice on both counts and participates in the penalty proceedings before the Assessing Officer, notice cannot be held defective for want of indication in notice as to which limb the proceedings are initiated.

So far as the merit of the case is concerned, he upheld the action of the Assessing Officer on the ground that the Tribunal in quantum appeal after examining the documents has reached to a conclusion that the project was first approved by the district collector on 30.03.2007 and the project was not completed before 24.09.2012. The Tribunal has also given a factual finding that the letter dated 07.03.2012 claimed to have been furnished to Zila Adhikari Karyalaya, Pune remained unproved and the said letter has been treated as farce.

So far as the merit of the case is concerned, the Ld. Counsel for the assessee submitted that the claim of the assessee is bonafide and full disclosure of primary facts were made. Full amount of taxes were paid along with the return of income which can be seen from the statement of total income, copy of which is placed at page 2 of the paper book. Referring to page 3 of the paper book he drew the attention of the Bench to the payment of advance tax of Rs.2 crore and self assessment tax of Rs.10.5 + Rs.3.14 crores. Referring to page 4 of the paper book for assessment year 2014-15, he submitted that the assessee has paid advance tax of Rs.9.18 crores including TDS and self assessment tax of Rs.2.46 crores. Referring to pages 5 and 6 of the paper book for assessment year 2015-16, he submitted that the assessee has paid advance tax including TDS of Rs.3.20 crores and self assessment tax of Rs.0.43 crore.

The Ld. Counsel for the assessee submitted that specific disclosure of material facts were furnished for making the claim in the return. Referring to page 7 of the paper book for assessment year 2013-14, the Ld. Counsel for the assessee drew the attention of the Bench to the Notes regarding the deduction of claim u/s 80IB(10) of the Act. Referring to page 29 of the paper book, he drew the attention of the Bench to Form 10CCB. Referring to page 32 of the paper book, he drew the attention of the Bench to item No.23 according to which the date of approval by the local authority vide Commencement Certificate No.PMA/NA/SR/51/07 dated 30.03.2007 from Collector, Pune was received on 03.04.2007. Referring to page 36 of the paper book he drew the attention of the Bench to the declaration by the auditor. Referring page 39 of the paper book he drew the attention of the Bench to para 3 which contains the approval of the building plans. Referring to page 41 of the paper book he drew the attention of the Bench to the declaration by the auditor regarding the completion of the project. Referring to pages 75 to 106 of the paper book he drew the attention of the Bench to the order of the Ld. CIT(A) wherein he has allowed the claim made u/s 80IB(10) of the Act.

The Ld. Counsel for the assessee in his rejoinder relying on various decisions submitted that the Assessing Officer could have allowed prorata deduction u/s 80IB(10) of the Act since the assessee fulfils all conditions except in respect of the 2 bungalows where the built up area is more than 1500 sq.ft.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and the Ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the Assessing Officer in the instant case levied penalty of Rs.15,38,96,534/- u/s 271(1)(c) of the Act on the ground that the assessee has furnished inaccurate particulars of income by claiming deduction u/s 80IB(10) of the Act on the project under consideration which was not completed within the stipulated period of 5 years. According to the Assessing Officer when the first approval of the project was received vide order dated 30.03.2007 the project should have been completed on or before 31.03.2012. However, the final completion certificate of the project was issued on 30.03.2013 and therefore, the project was not completed within the stipulated period of 5 years. We find in appeal the Ld. CIT(A) confirmed the penalty levied by the Assessing Officer on the ground that the Tribunal in the quantum appeal, after examining the documents, has reached to a conclusion that the project was not completed before 24.09.2012 and that the letter dated 07.03.2012 claimed to have been furnished to Zila Adhikari Karyalaya, Pune remained unproved and the said letter has been treated as farce. The contention of the Ld. Counsel for the assessee that the initiation of penalty proceedings are invalid on account of non-striking off of the inappropriate words in the notice in view of the decision of Hon’ble Bombay High Court in the case of Mohd. Farhan A. Shaik vs. DCIT (supra) was also rejected by him by relying on the later decision of Hon’ble Bombay High Court in the case of Veena Estate P. Ltd. vs. CIT (supra). It is the submission of the Ld. Counsel for the assessee that the facts in the case of Veena Estate P. Ltd. vs. CIT (supra) are distinguishable and not applicable to the facts of the present case in view of the later decision of Mumbai Bench of the Tribunal in the case of Lyka Labs vs. DCIT (supra) where the Tribunal distinguishing the decision of Hon’ble Bombay High Court in the case of Veena Estate P. Ltd. vs. CIT (supra) has quashed the penalty proceedings on account of non-striking off of the inappropriate words in the notice issued u/s 274 r.w.s. 271(1)(c) of the Act. Therefore, the penalty proceedings in the instant case not being in accordance with law have to be quashed. It is also his submission that since the full particulars were given in the return and the claim of deduction u/s 80IB(10) is a debatable issue, therefore, in view of the various decisions cited (supra) by the assessee, no penalty should be levied. It is also his submission that during penalty proceedings the assessee can always make new arguments and produce new evidences to substantiate its claim. It is also his submission that the assessee now has obtained certain details from the District Collector (Local authority) under the RTI Act to substantiate that it has filed an application on 07.03.2012 intimating the completion of the project. It is his submission that since reasons for upholding the penalty by the Ld. CIT(A) is on account of the findings given by the Tribunal that the letter dated 07.03.2012 claimed to have been furnished to Zila Adhikari Karyalaya, Pune remained unproved and that the said letter is a farce, therefore, in view of the details obtained from the local authority now under the RTI Act, no penalty is leviable u/s 271(1)(c).

So far as the argument of the Ld. Counsel for the assessee that the penalty proceedings are not in accordance with law on account of non-striking off of the inappropriate words is concerned, it is an admitted fact that the Assessing Officer in the body of the assessment order passed u/s 143(3) on 31.03.2016 has clearly mentioned that the assessee has furnished inaccurate particulars of income for which the penalty proceedings are initiated u/s 271(1)(c) of the Act. It is an admitted fact that the first notice u/s 271(1)(c) r.w.s. 274 was issued on 31.03.2016. However, the CIT(A)-3, Pune passed the order on 12.11.2018 allowing the claim of deduction u/s 80IB(10). Therefore, no penalty was leviable u/s 271(1)(c) of the I.T. Act, 1961 on the basis of first notice. Only when the ITAT reversed the order of the Ld. CIT(A) and upheld the disallowance of deduction u/s 80IB(10) that the Assessing Officer issued notice u/s 271(1)(c) r.w.s. 274. A perusal of the second notice issued by the Assessing Officer u/s 271(1)(c) r.w.s. 274, copy of which is placed at page 116 of the paper book clearly shows that the penalty proceedings have been initiated for furnishing inaccurate particulars of income. Therefore, when the Assessing Officer passed the assessment order on 31.03.2016 but subsequently the Ld. CIT(A) allowed the claim of deduction u/s 80IB(10) and only when the Tribunal reversed the decision of the Ld. CIT(A) the Assessing Officer issued the second notice on 27.02.2020 initiating penalty proceedings u/s 271(1)(c) of the Act for furnishing inaccurate particulars of income, therefore, under these circumstances, we do not find any merit in the arguments of the Ld. Counsel for the assessee that the penalty proceedings are not in accordance with law on account of non-striking off of the inappropriate words in the first notice. The various decisions relied on by the Ld. Counsel for the assessee are not applicable to the facts of the present case and are distinguishable. Therefore, the grounds raised by the assessee on the issue of validity of the penalty proceedings in absence of non-striking off of the inappropriate words are dismissed.

So far as the merit of the case is concerned, we find the assessee in the return of income filed along with the audit report has given full particulars of the claim of deduction u/s 80IB(10) of the Act. We find the assessee while claiming deduction u/s 80IB(10) in Note No.6 has given the full details which read as under:

A perusal of the above would show that while claiming the deduction u/s 80IB(10), the assessee has made full disclosure of all primary facts. The computation of income itself carries a detailed note on the claim of deduction u/s 80IB(10) giving the details of the project, date of commencement including the commencement certificate dated 30.03.2007 which was received on 03.04.2007. It is also mentioned that although the completion certificate is dated 31.03.2013 but the certificate from the architecture was obtained on 02.03.2012. We find the application dated 07.03.2012 filed before the competent authority was not signed and there were certain cuttings for which the Tribunal, while deciding the issue against the assessee made certain observations that the letter dated 07.03.2012 furnished to Zila Adhikari Karyalaya, Pune remained unproved and that the said letter has been treated as farce. Based on the above observations, we find the Ld. CIT(A) upheld the penalty levied by the Assessing Officer u/s 271(1)(c) of the Act. We find the assessee subsequent to the order of the Tribunal obtained certain details from the office of the District collector, Pune under the RTI Act which are filed as additional evidences. Since these additional evidences go to the root of the matter, therefore, we admit the same and deem it proper to restore the issue to the file of the Assessing Officer with a direction to verify the details and in case it is proved that the assessee has filed the letter seeking the approval on 07.03.2012 before the competent authority, then to cancel the penalty. The Assessing Officer shall also keep in mind the submission of the Ld. Counsel for the assessee that the Tahsildar has issued a further report dated 02.06.2025 clarifying the assessee’s application / letter dated 07.03.2012 stating that the same was in accordance with the SOP of the relevant office for issuing completion certificates and there was no defect letter or defect notice issued by the Tahsildar’s office in connection with this application / letter. Needless to say the Assessing Officer, while deciding the issue shall afford due opportunity of being heard to the assessee and decide the issue as per fact and law. We hold and direct accordingly. The grounds raised on the issue of levy of penalty on merit are accordingly allowed for statistical purposes.

Identical grounds have been raised by the assessee for assessment years 2014-15 and 2015-16. Since we have restored the issue to the file of the Assessing Officer while deciding the appeal for assessment year 2013-14 in the preceding paragraphs, therefore, following similar reasonings, the appeals filed by the assessee for assessment years 2014-15 and 2015-16 respectively are also allowed for statistical purposes.

Grounds raised

Facts of the case, in brief, are that the Assessing Officer in the order passed u/s 143(3) r.w.s. 144B of the Act rejected the claim of deduction u/s 80IB(10) of the Act made by the assessee amounting to Rs.1,18,67,128/-. While doing so the Assessing Officer, followed his order for assessment year 2013-14.

In appeal, the Ld. CIT(A) following his order for assessment year 2013-14 upheld the action of the Assessing Officer rejecting the claim of deduction u/s 80IB(10) of the Act.

Aggrieved with such order of the Ld. CIT(A) the assessee is in appeal before the Tribunal.

The Ld. Counsel for the assessee at the outset filed an application requesting for admission of additional evidences, the contents of which read as under: “The Addition U/s.80IB(10) of Rs.1,18,67,128/- is upheld by CIT(A) based on the decision of Hon'ble ITAT, Pune in the assessee's own case for AY 2013-14. The assessee during the appellate proceedings before the Hon'ble ITAT from A Y 2013-14 onwards had furnished application for completion certificate to District Collector (local authority as per the provisions of Section 80IB(10) dated 07.03.2012. The Hon'ble ITAT while deciding the case for AY 2013-14 treated the said application dated 07.03.2012 (and the fact of furnishing of the said letter to competent authority) as being unproved/farce (page No.9 of the ITAT Order). Accordingly, the revenue's appeal against the order of the CIT(A) who had decided the issue in favour of the assessee was allowed. Thereafter, even penalty was levied by the AO and confirmed by CIT(A) based on treating the said application as non-genuine. Subsequent to the above order of the Hon'ble ITAT where the application was treated as not proved, the assessee filed application under the Right to Information Act ("RTI”) to obtain a copy of the said application from the official government records. The assessee has obtained a copy of the said letter dated

He submitted the Ld. CIT(A) following the order for assessment year 2013- 14 has dismissed the appeal filed by the assessee and thereby upheld the order of the Assessing Officer rejecting the claim of deduction u/s 80IB(10) of the Act. However, on the basis of certain remarks passed by the Tribunal the assessee obtained certain details from the local authority through RTI which have got a bearing on the subject. He accordingly submitted that the additional evidences should be admitted and the matter may be restored to the file of the Assessing Officer for adjudication of the issue afresh.

The Ld. DR on the other hand submitted that the Tribunal has already taken a view on this issue and the assessee has gone to the Hon’ble High Court, therefore, following the order of the Tribunal in assessee’s own case for preceding assessment years, this issue should be decided against the assessee. He accordingly submitted that the order of the Ld. CIT(A) should be upheld and the grounds raised by the assessee be dismissed.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and the Ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. It is an admitted fact that the Assessing Officer, following his order for assessment year 2013-14, which has been upheld by the Tribunal, rejected the claim of deduction u/s 80IB(10) of the Act amounting to Rs.1,18,67,128/-. We find the Ld. CIT(A) following his order for assessment year 2013-14 upheld the action of the Assessing Officer. It is the submission of the Ld. Counsel for the assessee that in view of the details now obtained under the RTI Act from the government department on account of certain remarks by the Tribunal in assessee’s own case for assessment year 2013-14 which have got a bearing on the issue, the matter should be set aside to the file of the Assessing Officer.

We find some force in the above arguments of the Ld. Counsel for the assessee. Since we have admitted the additional evidences while adjudicating the penalty proceedings, therefore, the additional evidences filed by the assessee for this year are also admitted. Since these additional evidences have got a bearing on the issue of allowability of deduction u/s 80IB(10), therefore, considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore this issue to the file of the Assessing Officer with a direction to decide the issue afresh in the light of these additional evidences filed by the assessee and in accordance with law after giving due opportunity of being heard to the assessee. The grounds raised by the assessee are accordingly allowed for statistical purposes. In the result, the appeals filed by the assessee are allowed for statistical purposes.

Since we have decided all the penalty appeals and restored the issue to the file of the Assessing Officer, therefore, the SAs filed by the assessee become infructuous and are dismissed.

In the result, all the 4 appeals filed by the assessee are allowed for statistical purposes and the SAs filed by the assessee are dismissed.