2022 (1) TMI 831

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.... Tribunal, disposing off the appeals filed by the Department for assessment years 2005- 06 and 2006-07 (ITA Nos. 2481 and 2482/Del/2011) along with Cross Objections of the applicant (CO. Nos.221 and 222/Del/2011) involving common issues. Copy of the order is annexed hereto and marked as Annexure 1. The present application under section 254(2) of the Act is being filed for rectification of certain mistake(s) apparent from record in the order dated 19.07.2021, which calls for being rectified for the reasons elaborated hereinafter. Facts: The applicant is a cooperative society engaged in the business of development and construction of residential projects since the year 2000. A development agreement dated 21.09.1999 was entered into between the applicant and M/s Sahara India Commercial Corporation Ltd ["SICCL"] wherein the applicant appointed SICCL to construct Sahara States, Lucknow and Sahara Grace, Lucknow projects. The project map was approved on 26.03.2003 by the Lucknow Development Authority and the said project was completed by SICCL on 14.03.2008 for which the completion certificate was furnished (as additional evidence before the H....

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....al Corporation Ltd dated 18/03/2008 [Pg 6 of additional evidence compilation] c. Architect certificate dated 15/09/2.009 along with the official translation [Pg 7 and 8 of additional evidence compilation]. Vide the appellate order dated 19.07.2021, the Hon'ble Tribunal, upheld the order of the CIT(A) with respect to grounds / objections (i) and (iii) taken by the assessing officer (set out above) to deny the claim of deduction under section 80IB(10) of the Act. While dismissing Revenue's objection no. (i), the Hon'ble Tribunal held that the condition introduced vide Finance (No.2) Act, 2004 w.e.f. 01.04.2005, with respect to extent of commercial area, being prospective in nature and not applicable to projects approved prior to 01.04.2005, relying upon the decision of the Hon'ble Supreme Court in the case of CIT vs. Sarkar Builders: 375 ITR 392 and CIT vs. Vatika Township Pvt. Ltd. reported in 367 ITR 466, could not be applied to the projects being executed by the applicant, which were approved by the Development Authority on 2.6th March, 2003 (refer para 24.1 of the impugned order). In so far as objection no. (ii) was concerned, the applicant, at the outs....

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....onsidering that - - the amended provision for issuance of completion certificate for availing benefit of section 80IB(10) of the Act was not applicable for projects approved before 01.04.2005, in view of the judicial precedents cited, including the binding decision of the jurisdictional High Court; and - even otherwise, assuming for sake of argument that the said condition was applicable, the same stood satisfied as evident from the letter dated 14.03.2008 issued by developer to the applicant evidencing completion of project along with certificate dated 15.09.2009 issued by the architect (submitted as additional evidence), as held by the Apex Court in the case of Majestic Developers (supra). Ignoring the settled legal position set out hereinabove, the Hon'ble Tribunal ought to have affirmed the decision of the CIT(A) qua objection no.(ii) as well; instead, the Hon'ble Tribunal without dealing with the legal submissions, restored the issue to the file of the assessing officer for deciding the same as per law. The relevant paragraph 25 of the appellate order is reproduced hereunder for ready reference: "25. Since these documents were never produced....

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....a 25 of the appellate order to uphold the order of the CIT(A) and reject the denial of deduction of deduction under section 80IB(10) of the Act on the said ground; alternatively, recalling the impugned order dated 19.07.2021 to the limited extent of dealing with the aforesaid objection (ii), namely, issuance of completion certificate, afresh. The applicant trusts that the request shall be acceded to. An opportunity of being heard is being prayed for." 3. Referring to the contents of the Miscellaneous Application, the ld. Counsel for the assessee submitted that the same is self explanatory; therefore, appropriate order may be passed. 4. The Ld. DR, on the other hand, strongly objected to the Miscellaneous Application filed by the assessee. He submitted that the Tribunal after considering the various submissions made by the assessee and the additional evidences filed before the Tribunal has admitted the additional evidences and restored the same to the file of the Assessing Officer for verification with certain direction. He submitted that the assessee through this Miscellaneous Application is trying to persuade the Tribunal to modify the order which amounts t....