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Income Tax Appellate Tribunal, MUMBAI BENCHES “F”, MUMBAI
Before: Shri Joginder Singh, & Shri Ramit Kochar
Per Joginder Singh (Judicial Member) Both these appeals are by the Revenue for Assessment Year 2005-06 and 2008-09 of the same assessee on the ground of deduction u/s 80IB(10) of the Income Tax Act, 1961 (hereinafter the Act) as the first approval of the housing project was 06/10/2000 (before 01/04/2004).
During hearing of this appeal, the ld. DR, Ms. R. M. Madhuri, advanced her arguments, which are identical to the ground raised by submitting that the assessee furnished amended plan and the commencement certificate was issued on 11/06/2008, thus, the building was not completed before 31/03/2008. None was present for the assessee. In spite of the fact that the on earlier occasions, the appeals were adjourned at the request of the assessee, more specifically, on 13/03/2013, 09/04/2014, thus, we have no option but to proceed ex-party qua the assessee and tend to dispose off these appeals on the basis of material available on record.
2.1. We have considered the submissions of ld. DR and perused the material available on record. The facts, in brief, are that the assessee is a builder and developers, declared nil income in its return filed on 25/10/2005. The assessee claimed deduction u/s 80IB(10) of the Act to the tune of Rs.33,34,871/- (A.Y. 2005-06). The ld. Assessing Officer completed the assessment u/s 143(3) allowing the claimed deduction. Later on, it came to the notice of the Assessing Officer that the project was not completed before the 3 M/s Vikram Builders stipulated time i.e. 31/03/2008, hence in order to deny the claim, the assessment was reopened u/s 147/148 of the Act and the claimed deduction (which was earlier allowed) was denied. The assessee, for the first time, got the plan approved from the competent authority i.e. Thane Municipal Corporation on 06/10/2000 to construct two buildings namely Virat and Sankar Park. This plan got further amended on 13/09/2002. The Assessing Officer was of the view that since the buildings were not completed as on 31/03/2008, therefore, the requisite conditions were not fulfilled for claiming the deduction u/s 80IB(10)(a)(i) of the Act.
2.2. On appeal, before the ld. Commissioner of Income Tax (Appeals), the factual position along with the provisions of the Act were considered and duly examined the approved plans and found that for the third time, the plan got amended on 28/10/2004 to include building C and part completion certificate in respect of building A & B were obtained on 28/12/2005 and 14/02/2007. The decision in Saroj Sales Organisation vs ITO (2008) 115 TTJ (Mum.) 485 and Bajaj Tempo Ltd. vs CIT 196 ITR 188 (SC), holding that “the provisions in the taxing statute, granting incentives, for promoting growth and development should be construed liberally so as to advance the objective of the provision and not to frustrate it” were considered and found that the original plan which was approved on 06/10/2000 was for construction of buildings A & B and building C was not part 4 M/s Vikram Builders of this project. Buildings A & B were completed before 31/03/2008 and for building C, the commencement certificate was issued on 11/06/2008 for which no deduction was claimed, meaning thereby, building C was a separate building. In view of these factual findings, we find no infirmity in the conclusion drawn by the ld. Commissioner of Income Tax (Appeals). The factual finding recorded by the ld. First Appellate Authority was not controverted by the ld. DR with the help of any positive material. Being on identical fact, our view will cover, identical issue for A.Y. 2008-09 also, thus, we affirm the conclusion drawn by the ld. Commissioner of Income Tax (Appeals), resulting into, dismissal of appeals of the Revenue. Finally, the appeals of the Revenue are dismissed. This Order was pronounced in the open court in the presence of ld. DR at the conclusion of the hearing on 28/09/2015.