TaxTMI 
TaxTMI 
2024 (9) TMI 1882
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....e to smallness of disallowance the assessee does not press ground no. 2 of the grounds of appeal and the same may be dismissed as not pressed. Ld. DR has raised no objection if ground no. 2 of the assessee's appeal is dismissed as not pressed. Accordingly ground no. 2 of the assessee's appeal is dismissed being not pressed. 3. Solitary issue remains to be considered is regarding the disallowance of claim of deduction u/s 80IB(10) in respect of project D.K. Honey Homes. The assessee has filed an application u/s 158A(1) of the Act along with declaration in form 8 which reads as under: "1. That the following question(s) of law is pending in my case before the Supreme Court in a Special leave petition under article 136 of the Constitution of India in respect of the assessment year 2005-06 & 2008-09 A copy of the statement of the case and the question(s) of law referred to the Supreme Court is/are enclosed. A Copy of the judgment of the High Court and grounds of appeal to the Supreme Court is/are enclosed. 2. That the said question(s) of law is/are identical with the question(s) of law arising in my case in respect of the assessment year 2014-15 wh....
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....ra 3.2.2 as under: "3.2.2 As regards to housing project 'D K Honey Homes' the project was approved by local authorities on 26.04.2003 and therefore, as per provisions of section 80IB(10)(a)(i) of the Act, the construction of the project was to be completed on or before 31.03.2008. The appellant claimed that the construction of housing project was completed on 21.03.2008 and the appellant had applied for obtaining the completion certificate to the local authorities. However, the completion certificate was issued by local authorities on 24.12.2010 mentioning that the project was completed on 31.03.2008. The appellant during appellate proceedings as well as during assessment proceedings has contended that similar issue was dealt with by Hon'ble ITAT Indore in the case of appellant for AY 2006-07 in ITA No 243/Ind/2010 dated 06.12.2010 and for AY 2005-06 to 2007-08 in ITA No 521 & 522/Ind/2010 dated 30.11.2011 wherein, Hon'ble ITAT has allowed claim of deduction u/s 80IB(10) w.r.t project D K Honey Homes stating that the date of issue of letter is not important, but the date mentioned in letter certifying completion of project is important. The appellant has al....
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....the Local Authority before the cutoff date is not directory, in view of the express provision in Section 80IB(10)(a) and the Explanation (ii) thereunder. The completion certificate granted by the Local Authority must bear the date of having been issued before the cutoff 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 cutoff 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 Section 80IB(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 cutoff date, as may be applicable in his case. In other words, if the housing project was approved by the Local Authority before 1st April, 2004, he must submit completion certificate issued by the Authority having been iss....
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....t the sweep of the amended Section 80IB (10) (a); and consequently the correctness of disallowance of assessee's claim in that behalf, due to non-submission of the completion certificate issued by the Local Authority before 31.03.2008." 3.5 The Hon'ble High Court in case of CIT vs. Global Reality (supra) has concluded in para 26 as under: "26. We accordingly hold that issuance of completion certificate, after the cutoff date by the Local Authority but, mentioning the date of completion of project before the cutoff date, does not fulfill the condition specified in clause (a) of Section 80IB (10) read with Explanation (ii) thereunder. We reject the argument of the assessee that the effect of amended clause (a) of sub-Section 10 of Section 80IB, which has come into force with effect from 1st April, 2005, has retrospective effect or that it is unjust in any manner or incapable of compliance at all. Similarly, the requirement of securing completion certificate issued by the Local Authority before the cutoff date is not directory, in view of the express provision in Section 80IB(10)(a) and the Explanation (ii) thereunder. The completion certificate granted by the Local Au....
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.... Supreme Court for A.Ys. 2005-06 & 2008-09. Therefore, it is incumbent on the tribunal to pass an order in writing as per sub-section (3) of section 158A of the Act. The Hon'ble Bombay High Court in case of Titanor Components Ltd. v. CIT 323 ITR 266 has analyzed the provisions of section 158A and held in para 7 to 12 as under: "7. The appellant Company wants depreciation to be calculated on the amount of actual costs incurred by it for acquiring assets from WIMCO. The Department has obtained surveyor's report about valuation of those assets and has granted the benefit of depreciation as per Section 32 on the valuation as worked out in the said valuation report by the surveyor. This exercise for the first assessment years i.e. 1990-91, and 1991-92 is already under consideration of the Delhi High Court. It is to be noted that if the order of Delhi ITAT is maintained, the appellant Company will not be entitled to any benefit for subsequent assessment year in relation to which appeals have been filed before this Court. However, if the said order of Delhi ITAT is set aside and depreciation under Section 32 is held to be admissible on actual costs for acquisition, the benefi....
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....ot entitled to raise, in relation to that case, such question of law in appeal before any appellate authority or the High Court or the Supreme Court. 8. Thus, if in the present circumstances the claim of the assessee/present appellant was accepted by the ITAT, its appeals could have been disposed of in terms of section 158(4)(a) and he would not have been required to file Appeals before this Court as contemplated by clause (b) of sub-section (4). The provisions clearly show that the ITAT is required to pass an order after ascertaining the claim made by the assessee about "other case". In the facts before this Court, the ITAT has overlooked the provisions of sub-section (2)(3)(4) and (5) of Section 158A totally and has considered only the following portion of Section 158A(1): "a declaration in the prescribed form and verified in the prescribed manner, that if the [Assessing] Officer or the appellate authority, as the case may be, agrees to apply the in the relevant case the final decision on the question of law in other case, he shall not raise such question of law in the relevant case in appeal before any appellate authority or [in appeal before the High Court und....
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....ven the provisions of Section 158A(6) also show that the legislature contemplated passing a separate order either admitting the claim of the assessee or rejecting his claim. In the present circumstances, there is no order passed as required by Section 158A(3). The order passed is only one and under Section 254(1) on 7.4.2006 The said order is a common order in all appeals as mentioned above. As the issue was found to be covered by the order of ITAT, Delhi Bench, the ITAT Panaji Bench has not gone into the merits of the controversy and the appeals filed by the assessee were dismissed straight away. The impugned order, therefore, cannot be read as an order under Section 158A(3) against which no appeal is provided. 11. The ITAT, Panaji Bench has not recorded any separate reasons of its own while upholding the orders passed by the Commissioner (Appeals) or the Assessing Officer. The impugned order, therefore, does not reveal why, as contended by the assessee, the actual costs incurred by it for acquisition of relevant assets could not have been accepted as base for computing depreciation. In view of absence of this material on record, it is apparent that the impugned order can....