2016 (8) TMI 647

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....30. 01. 2012 2. During the course of hearing before us, the Authorised Representative(AR) stated that assessee had filed additional evidences as per the provisions of Rule 29 of the ITAT, Rules, 1963, that those documents were not available at the passing of assessment/appellate orders, that same directly dealt with the issues on hand, that in the appeal filed by the AO for the AY. 2007-08 some new issues were raised, that the AO had revised the grounds of appeal for the AY. 2005-06, that paper included correspondence with the local authorities of the year 2012 and the assessment and appellate orders for the subsequent years. The Departmental Representative(DR)left the issue to the discretion of the bench. We find that the department had revised the grounds of appeal and raised 17 grounds for the AY. 2007-08 and for the year 2005 -06 raised some grounds that are not arising out of the orders of the AO, that the documents came in to existence after the assessment proceedings. As the papers will assist us to decide the matter, so, we are admitting them as additional evidences invoking the provisions of Rule 29 of the ITAT, Rules. As the issues involved in the appeals and the CO. s....

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.... After considering the submission of the assessee and the order/report of the AO, the FAA referred to the verifications received from the TMC and held that the housing project of the assessee was first approved on 21/09/2004, that it had to be completed on or before 31/03/2009 as per the provisions of section 80 IB (10)(a)(ii) of the Act, that the assessee had complied with requirement of the provisions by obtaining the final occupation certificate on 19/06/2008 well within the time available to it. Finally, he allowed the appeal filed by the assessee. 6. During the course of hearing before us The DR supported the order of AO. The AR stated that issue stands decided in favour of the assessee by the Tribunal order delivered for the AY. 2005-06, at paragraphs no. 16 and 17 of the order, that the case of the assessee was covered by the provisions of section 80IB(10)(a)(ii)and not by 80IB(10)(a)(i)of the Act, that the commencement certificate was issued on 21. 09. 2004, that it was the date of first approval by the municipal authorities for the purposes of section 80IB(10)of the Act, that the project was completed well within the stipulated time i. e. before 31. 03. 2009. 7. W....

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....of the Corporation, that there is delegation of powers by him to his officers, that delegated powers were used by his junior officers. In our opinion, what is material is the approval of the municipal authorities and not the person signing the permission letter/CC. We do not find any precondition in the Act or the Income Tax Rules, 1962 that prescribes that for availing deduction u/s. 80 IB (10) a certificate has to be signed by a particular officer only. The purpose to introduce the section was to encourage the construction of affordable houses for common man. The AO has tried to raise super/hyper technical objections to deny the deduction to the assessee. The stand taken by him is against the spirit and intent of the provision. We also agree that the issue is not arising out of the order of the FAA. However, we have decided the issue on merits. As stated earlier, effective first ground (GOA 1-7 &11-17)stands decided against the AO. 11. Last ground of appeal (GOA 8-10)is about expenditure of Rs. 21. 86 lakhs incurred prior to receipt of commencement certificate. In that regard the FAA, in the second round of hearing, observed that the assessee had entered into an agreement for ....

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.... of CC by a particular municipal authority(GOA 8-10). While adjudicating the identical issues for the AY. 2005-06, we have decided the ground against the AO. Following the same, Grounds no. 1-17 are dismissed. 15. Second effective Ground(GOA-18-20)deals with expenditure of Rs. 21. 86 lakhs incurred prior to receipt of CC. Following our order for AY. 2005-06, where we have decided the identical ground of appeal, we decide Grounds no. 18-20 against the AO. 16. Third effective ground of appeal(GOA 21)pertains to pro-rata deduction in respect of eligible units of the housing project. It is found that while deciding the appeals for the AY. s. 2005-06(Paragraph 1. 3 at pg. 5) and 2006-07(Paragraph 26 at pg. 17)the Tribunal has held that proportionate deduction should be allowed to the assessee for the housing project, except for the 12 flats. Following the orders for earlier year, we dismiss the third ground of appeal also. ITA/2858/Mum/2012-AY. 2008-09: 17. All the three effective grounds of appeal(GOA-1-17, 18-20 and 21 respectively)deal with the identical issues that were raised by the AO in the earlier year. Following our order for that year we decide Grounds no. 1-21 aga....