TaxTMI 
TaxTMI 
2019 (5) TMI 1118
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....jor surgery to him, due to which, the appeals filed belatedly. It was therefore submitted that the delay may be condoned and admit the appeals for hearing and adjudication as the reason is genuine and not wilful. 2.1 The ld. DR on the other hand filed written submissions wherein it was stated that the grounds cited for the delay are that the task of filing appeal was entrusted to AR and he was hospitalized. The name of the AR, nor the proof of assigning the task of filing appeal and the proof of hospitalization are not filed. Further, it was submitted that without proper evidence, the delay may kindly not be condoned. Opportunity may also kindly be granted to the revenue to examine the proof, if any. 3. After considering the submissions of the assessee, the Bench has noticed that the ld. AR who has to represent the case in fact undergone the medical treatment as claimed by the assessee. Therefore, we are of the view that the assessee was prevented by a reasonable cause for not filing the appeals in time. Therefore, we condone the delay and admit the appeals for hearing and adjudication. ITA Nos. 1140 & 1141/Hyd/2017 and ITA Nos. 217 & 218/Hyd/2017 by the assessee and reven....
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....r: 5.7 The projects referred to in the above table in AY 2009-10 as well as 2010-11 have been the subject of examination in the appellate proceedings for the immediately preceding AYs 2007-08 and 2008-09. The enclosures to written submissions described above are part of the submissions considered in the earlier years. By an order of even date, JP Lakeview Phase - II was found eligible for the deduction in A.Y, 2007-08 and JP 1st Avenue was found eligible in A.Y.2008-09. Similarly, in A.Y.2008-09 it was held on a consideration of identical material in the case of the same projects - JP Arcadia and JP Metropolis, that the information furnished was incomplete, and did not permit any inference to be drawn in respect of the nature of the project originally approved, nu mber and size of apartments constructed, extent of plot on which project was located, and details of commercial establishments, if any. For the detailed reasons given in the common order for A.Y.2007-08 & 2008-09, therefore, the deduction claimed in respect of JP Lakeview Phase-II and JP 1st Avenue are allowed, and the disallowance of deduction claimed in so far it pertains to JP Arcadia and JP Metropoli....
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....rs vide order dated 23/01/2019. 10. Ld. DR, on the other hand filed written submissions and the same are extracted as under: 4. it is humbly submitted that in the present case, the assessee did not obtain the completion certificate within the specified time. All the letters filed from Gram Panchayat and Municipal Authorities (issued after several years of the alleged completion) stating that the houses are occupied and municipal assessment is done would not be taken as compliance to the specific provisions of the Income Tax Act, which mandate filing of completion certificate. From the letters filed by the assessee before the lower authorities, it is clear that completion certificates were not obtained. It is humbly submitted that the decision of Hon'ble ITAT in case of the assessee for earlier years (A.Y 2007-08 & 2008-09) dated 23/01/2019 is in contradiction to the decision of the same bench in the case of Sainath Estates Pvt Ltd. In the case of Sainath Estates Pvt Ltd ([2013] 32 taxmann.com 7 (Hyderabad - Trib.)) it was held that application made for completion certificate and certificate of licensed architect are not substitute for the completion certificate of t....
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....lature in its wisdom has predicated that, "the completion of construction" of the housing project is taken to be "the date on which" the completion certificate "is issued" by the Local Authority. To interpret it to include an ex post facto certificate or such certificate issued by the Local Authority after the cut off date, would not only result in rewriting of the express provision and run contrary to the unambiguous position pronounced in the Section, but also doing violence to the legislative intent. For, Explanation {ii)will then have to be read as "date of completion of construction of the housing project shall be taken to be the date as certified by the Local Authority in that behalf", irrespective of the date of issuance of such certificate by the Local Authority. Indeed, in a given case if the assessee is able to substantiate that the completion certificate "was in fact issued" by the Local Authority before the cut off date, but could not be produced by him within time due to reasons beyond his control, the argument of substantial compliance of the provision can be tested. Any other interpretation would result not only in uncertainty (in finalization of assessment ....
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...., has retrospective effect or that it is unjust in any manner or incapable of compliance at al/. Similarly, the requirement of securing completion certificate issued by the Local Authority before the cut off date is not directory, in view of the express provision in Section 80IB(10)(0) and the Explanation (ii) thereunder. The completion certificate granted by the Local Authority must bear the date of having been issued before the cut off date. 27. That takes us to the argument of the assessee that the stipulation in Section 80IB(10)(a) of completion certificate issued by the Local Authority before the cut off date, cannot be applied in the case of assessee following the work in progress accounting method. In our opinion, the provision in the form of Section80IB(10)(a), applies uniformly to all the assessees be it following work in progress accounting method or otherwise. The benefit of deduction under this provision can be availed by the assessee following the work in progress accounting method, provided he has complied with the stipulation of having produced completion certificate issued by the Local Authority before the cut off date, as may be applicable in his ....
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....f the revenue (3) The ratio in Sun Export case (Supra) is not correct and all the decision which took similar view as in Sun Export case (supra) stands overruled". In light of the above, the appeals of the assessee may kindly be dismissed and appeals of the Department may kindly be allowed." 11. Considered the rival submissions and peruse the material on record. We find that similar issue came up for consideration before us in assessee's own case for AY 2007-08 and 2008-09 (supra) wherein the coordinate bench held as under: "8.4 Considered the rival submissions and perused the material on record. We notice that assessee has only submitted the letters before CIT(A) to claim the deduction in pro-rata basis. As per the findings of ld. CIT(A), these letters do not give any details about the stage of completion, size of the flat to ascertain whether these projects satisfy the conditions specified in section 80IB(10). Therefore, we direct the AO to collect information about the stage of completion of the projects and size of the flats. If it is within the norms, AO should give pro-rata deduction u/s 80IB(10). This is accepted law as far as allowing pro-rata ....
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....ompleted before 31-03-2008. According to the revenue, for claiming deduction u/s.80IB(10) the assessee has to fulfil all the conditions laid down in section 80IB(10) and there is no concept of pro-rata deduction. According to the assessee it is entitled to pro-rata deduction u/s.80IB(10) in respect of the units which fulfill the conditions laid down in section 80IB(10). 13. We find the Hon'ble Madras High Court in the case of Viswas Promoters Pvt. Ltd. (Supra) while allowing proportionate deduction u/s.80IB(10) has observed as under : "14. On the facts admitted by the Revenue, in the projects"Agrini" and "Vajra", there are number of flats which are below 1500 sq.ft., and the relevant built-up area equirement is specified underSection 80IB(10)(c) of the Income Tax Act. Thus, the built-up area in some of the flats in both these projects are in excess of 1500 sq.ft., i.e., 32 flats in Agrini and only one flat in Vajra and that the assessee had not claimed any deduction on this. We hold that the Tribunal is not correct in its view, that by reason of these Units being in excess of 1500 sq.ft., the entire claim of the assessee in respect of these two projects would ....
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....ion 80IB(10) of the Act, the assessee would be entitled to the relief on a proportionate basis." 14. We find following the above decision the Pune Bench of the Tribunal in the case of Padmavati Developers (Supra) has decided the issue of pro-rata deduction in favour of the assessee by holding that assessee is entitled to pro-rata deduction in respect of the residential units which have complied with the conditions and were eligible for the deduction u/s.80IB(10). The relevant observation of the Tribunal at Paras 36 to 38 of the order read as under : "36. Now, coming to the second housing project in Sector No.7. Admittedly, the assessee in assessment year 2006-07 has completed only 2 buildings i.e. Q-1, Q-2 and some flats in assessment year 2007-08. The building comprised in P-1 to P-6 and the row houses have not been constructed by the assessee till the date of survey and upto 31.03.2008. 37. The Hon'ble Madras High Court in Viswas Promoters Pvt. Ltd. vs. ACIT, (2013) 255 CTR 149 (Mad.) have laid down that within a composite housing project, where there are eligible and inelligible units, the assessee can claim deduction in respect of eligible units i....
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....of Hon'ble Supreme Court in the case of Dilip Kumar and Co. & Others 9supra) and submitted that exemption provision has to be construed literally; there is no room for liberal interpretation. We notice that the above decision of Hon'ble Supreme Court is on the subject of interpreting the exemption notification, not on the exemption provisions in the Act. Yes, while interpreting, the eligibility of exemption has to be interpreted literally, but, when extending benefits of the provision, it has to be done liberally. Therefore, the ratio in Sun Export Case is still valid. 11.2 Therefore, following the decision of the coordinate bench in assessee's own case for AYs 2007-08 and 2008-09, we direct the AO to decide the issue as per the said directions and accordingly, grounds raised the assessee on this issue are allowed. 12. ITA No. 217 & 218/Hyd/2017 for AY 2009-10 & 2010-11 by the revenue 13. In these appeals, the revenue has raised the following grounds of appeal, which are common in both the appeals under consideration: "1. The CIT(A) is not justified in holding that the assessee is eligible to claim deduction u/ s 80IB without appreciating the fact that the asse....