Claimed And Also, Other Conditions Were Not Fulfilled By Theassessee? v. Saket Corporation Reported In 2015 (62)Taxmann.com 38 (Gujarat

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/TAX APPEAL NO. 204 of 2022 ========================================================== THE PRINCIPAL COMMISSIONER OF INCOME TAX, (CENTRAL),AHMEDABAD VersusM/S. VENUS INFRASTRUCTURE AND DEVELOPERS PVT. LTD. ========================================================== Appearance: MR M.R. BHATT, SENIOR ADVOCATE WITH MR KARAN SANGHANI, ADVOCATE FOR M R BHATT & CO.(5953) for the Appellant(s) No. 1MR TUSHAR HIMANI, SENIOR ADVOCATE WITH MR PARIMALSINH PARMAR(7296) for the Opponent(s) No. 1========================================================== CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALAand HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 04/04/2022 ORAL ORDER (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1.This appeal under Section-260A of the Income Tax Act, 1961[for short ‘The Act, 1961’] is at the instance of the revenue and isdirected against the order passed by the Income Tax AppellateTribunal. ‘A’ Bench, Ahmedabad dated 17.09.2021 in the ITANo.1568/Ahd/2019 for A.Y. 2012-13. 2.The Revenue has proposed the following two questions of lawfor the consideration of this Court. [A]Whether on the facts and circumstances of the case andin law, the Appellate Tribunal has erred in upholding thedecision of Ld. CIT(A) deleting the dis-allowance u/s.80IB(10) ofRs.32,13,73,570/- without appreciating the fact that the projectwas not completed before 31/03/2012 as the BU permission wasnot received for all the blocks for which the deductions was claimed and also, other conditions were not fulfilled by theassessee? [B]Whether on the facts and circumstances of the case andin law, the Appellate Tribunal has erred in upholding thedecision of CIT(A) deleting the dis-allowance u/s.80IB(10) ofRs.32,13,73,570/- without considering the plea of the revenuethat the return was filed after the due date and therefore, theassessee is not eligible for deduction u/s.80IB(10) of the Act? 3.It appears from the materials on record that the assessee hadclaimed deduction under Section-80IB of the Act, 1961 with respectto The Venus Parkland Project to the tune of Rs.32,13,73,570/-. Thededuction was claimed under Section-80IB of the Act as the assesseecompleted the project before 31.03.2012. The deduction underSection-80IB of the Act of the aforesaid amount came to bedisallowed by the Assessing Officer on the ground that the assesseehad failed to file his return of income within the stipulated timeunder Section-139(1) and the project namely The Venus ParklandProject was not completed within the period of 05 years from theend of the year in which the approval was granted by the localauthority under Section-80IB(10) of the Act. 4.The assessee being dissatisfied with the dis-allowance at theinstance of the Assessing Officer went in appeal before the CIT(A).The CIT(A) allowed the appeal and granted the deduction underSection-80IB by placing reliance on a decision of this High Court inthe case of ITO Vs. Saket Corporation reported in 2015 (62)Taxmann.com 38 (Gujarat). 5.The revenue being dissatisfied with the order passed by theCIT(A) went in appeal before the Tribunal. The tribunal dismissed the appeal and thereby, affirmed the findings recorded by theCIT(A). 6.In such circumstances referred to above, the revenue is herebefore this Court with the present appeal. 7.We have heard Mr. M.R. Bhatt, the learned senior counselassisted by Mr. Karan Sanghani, the learned counsel appearing forthe revenue and Mr. Tushar Himani, the learned senior counselassisted by Mr. Parimalsinh Parmar, the learned counsel appearingfor the assessee. 5.The revenue being dissatisfied with the order passed by theCIT(A) went in appeal before the Tribunal. The tribunal dismissed the appeal and thereby, affirmed the findings recorded by theCIT(A). 6.In such circumstances referred to above, the revenue is herebefore this Court with the present appeal. 7.We have heard Mr. M.R. Bhatt, the learned senior counselassisted by Mr. Karan Sanghani, the learned counsel appearing forthe revenue and Mr. Tushar Himani, the learned senior counselassisted by Mr. Parimalsinh Parmar, the learned counsel appearingfor the assessee. 8.We take notice of the fact that the CIT(A) relied upon thetwo decisions of this High Court one in the case of ITO Vs. SaketCorporation reported in 2015 (62) Taxmann.com 38 (Gujarat) andthe other one in the case of Deputy Commissioner of Income Tax,Central Circle-3, Surat Vs. M/s. Rekha Construction Company, ITANo.3659/Ahd/2015/SRT. 9.The ratio in the case of Saket Corporation appears to be thatin a case where the assessee completes the construction of its entirehousing project and thereafter applied for the BU Permission withinthe prescribed time-limit, then irrespective of the fact whether suchBU permission has been granted or not before the prescribed date,the assessee would be entitled to deduct under Section-80IB(10) ofthe Act. 10.The tribunal while dismissing the appeal filed by the revenueobserved in Paragraphs-27.8 onward as under:- “27.8Coming to the merit of case we note that the AO hasdisallowed the deduction claimed by the assessee for the reasonthat it has not got the BU permission for entire project up-to 31[st]March 2012. Accordingly, the AO concluded that the project wasnot completed within the period prescribed under the provisionof section 80-IB(10) of the Act. However, we find that assesseebefore the AO has submitted that the entire project i.e. 860 unitswas completed before 31[st] March 2012 and it has applied for BUpermission for entire project on 25[th] January 2012 alongwith thefees but till 31[st] March 2012 perission was received for only 480units. The assessee also furnished other documentary evidencessuch conveyance deed, electricity bills, possession letter for theunit in respect of which BU permission was not received. 27.9It was also contended that there was dispute for thejurisdiction over issuance of BU permission between AMC andAUDA from April 2012. Therefore, the permission for remainingunits was delayed. However, the AI ignored all these evidencesand placed his reliance heavily on letter submitted by the AUDAin compliance with the notice issued under Section 133(6) of theAct and made disallowances of claim of the assessee. 27.10In this regard, we find that the learned CIT(A) has givenflawless finding that after resolution of dispute of jurisdictionover issuance of BU permission, the AMC has issued suchpermission for remaining units to the assessee and certified thatthe project was completed before due date i.e. 31[st] March 2012.These permissions are placed at page 120 to 123 of paper book.This fact was not controverted by the revenue before us.” 11.So far as the second question is concerned, the findingrecorded by the tribunal in Paragraph-27.6 reads as under:- “27.6From the above, it is inferred that there was relationshipof AE created between assessee and ATTCO and further enteredinto international transaction by crediting brokerage commissionin the name of ATTCO. Thus, as per the provision of section92E, the assessee was required to get TP report in form 3CEB.Accordingly, it enjoy the extended period of due date for filingreturn of income.” 12.Thus, as regards the delay in filing the returns under Section-139 of the Act is concerned, the finding recorded by the tribunal as above is that in view of the provisions of Section-92E, the assesseewas required to get the transfer pricing report in the Form 3CEB. Insuch circumstances, the assessee had the benefit of the extendedperiod of the due date for filing of the return. “27.6From the above, it is inferred that there was relationshipof AE created between assessee and ATTCO and further enteredinto international transaction by crediting brokerage commissionin the name of ATTCO. Thus, as per the provision of section92E, the assessee was required to get TP report in form 3CEB.Accordingly, it enjoy the extended period of due date for filingreturn of income.” 12.Thus, as regards the delay in filing the returns under Section-139 of the Act is concerned, the finding recorded by the tribunal as above is that in view of the provisions of Section-92E, the assesseewas required to get the transfer pricing report in the Form 3CEB. Insuch circumstances, the assessee had the benefit of the extendedperiod of the due date for filing of the return. 13.Thus, in our opinion, no error not to speak of any error oflaw could be said to have been committed by the tribunal inaffirming the order passed by the CIT(A) and thereby dismissing theappeal filed by the revenue. 14.In view of the aforesaid, the appeal fails and is herebydismissed. (J. B. PARDIWALA, J) A. B. VAGHELA (NISHA M. THAKORE,J)