2022 (10) TMI 101

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....e as; "1. The Learned CIT-A erred on the facts and in circumstance of the case by invoking revisionary power u/s 263 of the Act on the basis of audit objection raised by the government auditors. The appellant prays revisionary order passed should be annulled. 2. The Learned CIT-A erred on the facts and in circumstance of the case by treating the order in original passed by learned assessing officer as erroneous and prejudicial to the interest of revenue. The appellant prays revisionary order passed should be annulled. 3. The Learned CIT-A erred on the facts and in circumstance of the case by invoking revisionary powers and setting aside the order in original passed by learned assessing officer. The appellant prays revisionary order passed should be annulled. 4. The Learned CIT-A erred on the facts and in circumstances of the case by directing fresh assessment by the learned assessing officer. The appellant prays revisionary order passed should be annulled. 5. The Learned CIT-A erred on the facts and in circumstances of the case by dis-regarding and not replying on the various documents submitted before him, by ....

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....n the absence fulfilment of condition of project by within the stipulated period in the form of completion certificate from the local authority. 4.3 In response to SCN issued u/s 263 of the Act, the appellant made representation, however the absence of certificate of completion of housing project, which is one of the basic condition for the entitlement of exemption, the Ld. PCIT set aside the 143(3) order of assessment holding it as erroneous insofar as prejudicial to the interest of the revenue and directed the Ld. AO to pass a fresh order in accordance with the provisions of the Income Tax Act and applicable circulars / judicial decision after making appropriate enquiries. 4.4 Pending such direction, the appellant assessee assailed the revisionary action before this Tribunal on the premise that, the subject matter under revision was duly considered while carrying out the regular assessment in the light of prevailing judicial precedents and hence the action of the revisionary authority is alleged contra legem. 5. After hearing to the rival contentions of both the parties; perused material placed on records and duly considered the facts of the case in the light of settled ....

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....oduced in para 5.3 of the revisionary order, which read as under; "The fact in assessee case is akin to the above cited case wherein the assessee has applied for the completion to the local authority which is deemed to be accepted as per the application laws thought formal completion certification not granted by the authorities. All the necessary evidence was brought on record which substantiates that the construction is duly completed and authorities are duly collecting the Municipal Property Tax thereon. Hence non-production of completion certificate which is technical in nature cannot be reason for denying deduction u/s 80BI(10) of the Act overlooking the other condition which were duly complied in present case, as every condition of the statute cannot be seen as mandatory. If substantial compliance thereof is established on record, minor deviation thereof would not vitiate the very purpose for which deduction was being made available." (Emphasis Supplied) 6.3 The Ld. PCIT considering the assessment records inter alia, the audit report submitted in the Form No 10CCB issued for claiming deduction u/s 80IB(10) of the Act and r.w.r. 18BBB of the Income Tax Rules, 1962 d....

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....n the case of an undertaking developing and building housing projects approved before the 31st day of March, [2008] by a local authority shall be hundred per cent of the profits derived in the 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 and completes such construction,- (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004, within four years from the end of the financial year in which the housing project is approved by the local authority. Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; ....

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....e the record of any proceeding under this Act, and if he considers that any order passed therein by the [Assessing] Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. [(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.] (3) . . . . . . . Explanation.-In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. (Emphasis Supplied) 7.3 A plain reading of this provision makes it clear that, the precondition to exercise revisionary jurisdiction by ....

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.... enquiry) by the tax authorities into assessee's eligibility of claim, basis of claim and compliance of pre as well post conditions as may be attached to the claim under scrutiny, and (4) There should be even-handed application of mind by the adjudicating authority in reaching out the allowability or dis-allowability of claim under consideration, (5) And finally, the adjudication must ensure the correct application of law as regards to aforesaid following principle of natural justice. 9. In the instant case, during the course of assessment proceedings, explicit queries on the entitlement of 80IB(10) claim of the appellant assessee in relation to eligible housing project were raised and unreserved submission in the form of audit report issued by the practicing chartered account in Form No 10CCB (r.w.r. 18BBB) along-with other relevant documents were matured before the Ld. AO, consequent to which inquiries into entitlement of claim of deduction u/s 80IB(10) were conducted and thereupon in the light of supportive material and judicial precedents, drawing even-handed conclusions, assessment allowing the deduction u/s 80IB(10) of the was carried out, leaving no air in the assessment.....