TaxTMI 
TaxTMI 
2014 (12) TMI 929
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.... residential unit violates this condition the entire project will not be eligible for deduction u/s 801 B. (b) Assessee has not furnished audit report u/s 10CCB despite specific requirements as per section 801A(7) of the LT. Act, 1961 which is also applicable to section 801B. (c) The assessee has not furnished any completion certificate from the competent authority. In place of filing the completion certificate from the local authority. 02. Whether the Ld. CIT (A) has erred in law and on facts in deleting the addition made on account w2rong claim of depreciation on computer accessories and peripherals amounting to Rs. 19,990/- ignoring the facts that only the computers and computer software are eligible for depreciation of 60% and the same cannot be extended to computer accessories and peripherals." 3. Briefly stated the facts giving rise to these appeals and Cos are that the assessee company is engaged in the business of hospitality and real estate. The assessee company filed its return of income and subsequently, the case was selected for scrutiny. During the course of assessment, the AO noted that the appellant company has claimed deduction u/s 80IB of the Income Tax....
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....gh Court of Delhi dated 22.1.2014 in ITA No. 298/2013 CHD Developers Ltd. for AY 2007-08 reported as 362 ITR 117 (Del) and submitted that the CIT(A) granted relief for the assessee by following the decision of ITAT Delhi 'B' Bench dated 26.9.2012 in ITA No. 2902 and 4694/Del/2010 for AY 2006-07 and 2007-08 and submitted that the CIT(A) has simply followed the decision of the Tribunal dated 26.9.2012 (supra) and there is no error or ambiguity in the impugned orders. Ld. Counsel further contended that the order of the Tribunal dated 26.9.2012 for AY 2007-08 has been upheld and approved by Jurisdictional High Court of Delhi through order dated 22.1.2014 (supra). Ld. Counsel supported the impugned orders and submitted that the AO adopted a hyper technical approach for rejecting the claim of the assessee for deduction u/s 80IB of the Act which was deleted by the CIT(A) on cogent and reasonable grounds. Ld. counsel vehemently contended that if CIT(A) is following orders of the Tribunal in assessee's own cases pertaining to the immediately previous years on the similar issue and facts, then the revenue cannot take a different or deviated stand without any substantial and strong reason. ....
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.... to the assessee. 9. From the impugned orders of the CIT(A), we observe that the CIT(A) granted relief for the assesseee dismissing the action of the AO, which denied deduction u/s 80IB of the Act to the assessee, with following observations, findings and conclusion:- "5. I have carefully considered the submissions made by the Id. AR and have gone through the assessment order. It is seen that the AO has disallowed the claim of deduction u/s 80IB of the I.T.Act in respect of Shri Krishna Lok Project at Virandvan of the appellant company mainly on two reasons: Firstly, that the aforesaid project of the appellant company is having areas of more than 1500 sq.ft. and even if one residential unit of a project violates this condition the entire project would not be eligible for deduction u/s 80IB. Secondly, the appellant company failed to furnish completion certificates from the Competent Authority in respect of its aforesaid project. It is observed that the AO was guided in making the aforesaid disallowance from the previous assessment orders in the case of the appellant company for the AY. 06-07 and 07-08. 5.1 It is further observed that the disallowances made in respect of the....
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....elf noted that assessee's 48 units of Type-A flats; 90 units of Type-B & Type- C units were under construction, the Assessing Officer himself computed the built up area by including the stair case area, therefore, it exceeded the prescribed limit. Such factual finding recorded in the impugned order was not controverted by the Revenue by bringing any positive material on record. In view of these facts we are of the considered opinion that the assessee is clearly entitled for such deduction. Therefore, we find no justification to interfere with the conclusion drawn in the impugned order, which is affirmed." 5.2 Similar issue was also adjudicated upon by the Hon'ble ITAT in respect of AY 2007-08 in the appellant's case in ITA No. 4694/Del/10 dated 26.9.2012. For ready reference the relevant extracts of the order of the Hon'ble ITAT is reproduced below:- "8.4. We have considered the rival submissions and perused the material available on record. The facts in brief are that the assessee declared taxable income of Rs. 5,97,15,620/- in its return filed on 31-10-2007. The case of the assessee was selected for scrutiny. The assessee claimed deduction of Rs. 5,19,92,472/- u/s 80-....
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....ed company and does not ah any discretion about the issue price and require to issue shares through preferential allotment only at the rate as per SEBI guidelines and approved by stock exchange. During the year the assessee company has calculated average market price as per general meeting, certification by statutory auditor etc., has submitted to Bombay Stock Exchange and has issued the preferential share after getting approval from Bombay Stock Exchange. These are normal business transactions because these are issued as per SEBI and Stock Exchange guidelines. These shares are issued to a number of companies and individuals and not only to RGSL. Valuation of these shares are done as per SEBI and Stock Exchange guidelines which were as per average market rats and approved by Board of Directors and General Meeting of CHD, statutory auditor and Bombay Stock exchange approval. There is no close or remote nexus between CHD and RGSL. There is no common relation among the directors or major share holders. Since CHD is listed company it has no control over market rate or guidelines of SEBI and Stock Exchange. It is immaterial for CHD what its shareholder does with their investments. As re....
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....its in case of an undertaking developing and building housing projects approved before the 31st day of March, 2005 by a local authority, shall be hundred per cent of the profits derived in any previous year relevant to any assessment year from such housing project if, - (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998; (b) the project is on the size of a plot of land which has a minimum area of one acre; and (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometers from the municipal limits of these cities and one thousand and five hundred square feet atany other place." 8.9. If the aforesaid position of law existing at the time when the plan was sanctioned/ approval was granted to the assessee is analyzed , there was no condition like production of complete certificate. This is a settled legal proposition of law that the law existing at the particular point of time will be applicable unless and until it is specifically made retrospective by the leg....
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....ssessee. It was held by the Hon'ble High Court that the assessee was entitled to hundred per cent benefit of sec. 80-IB(10). 8.11. Another case cited was from Visakhapatnam Bench of the ITAT in the case of M/s Vishnu Builders Vs. ACIT (ITA nos. 178, 179 & 180/Vizag/2011), order dated 27th July 2011. In that case also, completion certificate was not filed before the Assessing Officer and the proof of municipal tax assessment of various flat owners establishing that the housing project was completed before September 2008 was filed. Since there was no practice of issuing the project completion certificate, therefore, it was held that it was not a condition precedent of filing the completion certificate for allowing deduction u/s 80-IB(10) of the Act. 8.12. In the case of CIT Vs. Tarnetar Corporation (Tax appeal no. 1241 of 2011), the Hon'ble Gujarat High Court vide judgment dated 12-9-2012, observed that the confirmation issued by municipal authorities was filed on 15-2-2006 and was rejected on 1-7-2006. The assessee also paid penalty for regularization of the units. Since construction was completed well before 31st March 2008, the outer limit for such construction and the permi....
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....n 259 ITR 489 (Del.); and Union of India & others Vs. Kaumudini Narayan Dalal & another 249 ITR 219 (SC). From this angle also, the assessee is having a strong case in its favour. 8.16. Leave apart, we are of the considered opinion that the assessee is expected to complete the project as per the approved plan at a particular point of time and the assessee is not expected to do or to fulfill the conditions which are not in existence at the relevant point of time or made compulsory after making some amendment in the Act from the future date. Since the assessee was to complete the project on or before 31- 3-2009 and request was duly made with the Competent Authority on 5-11-2008 mentioning that the project has been completed and completion certificate may be issued and if the same is not issued by the Competent Authority the assessee should not be penalized for the same unless and until some contrary facts are brought on record evidencing that the assessee contravened the conditions contained in the approval granted by such Competent Authority. As per sub-section (10) of Sec. 80-IB, the housing project which were approved before 31st day of March, 2008, the benefit will be hundred ....
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.... the same. Accordingly, ground no.1 of revenue in both the appeals being devoid of merits is dismissed. Ground no. 2 of the revneue 12. Ld. DR contended that the CIT(A) has erred in deleting the addition made on account of wrong claim of depreciation on computer accessories and peripherals ignoring the fact that only the computer and computer software are eligible for depreciation of 60% and the same cannot be extended to computer accessories and peripherals. Ld. DR prayed that the impugned order may be set aside by restoring that of the AO on this issue. 13. Ld. Counsel for the assessee supporting the impugned orders submitted that the issue is squarely covered in favour of the assessee by the order of the Hon'ble Delhi High Court in the case of CIT vs BSES Rajdhani Power Ltd. dated 31.8.2010 in ITA No. 1266/2010 and he has drawn our attention towards operative para 6.3 and 6.4 of the impugned orders of the CIT(A). 14. On careful consideration of above rival submissions and perusal of the impugned order, we observe that the CIT(A) granted relief for the assessee with following conclusion:- "6.3 I have carefully considered the submissions of Id. AR and have gone thro....