Pr. Commissioner Of Income Tax-18 v. Rattanchand Rikhabdas Jain Chemical Works

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.INCOME TAX APPEAL NO. 1271 OF 2017 Pr. Commissioner of Income Tax-18..Appellant Versus Rattanchand Rikhabdas Jain Chemical Works ..Respondent ................. Mr. Sham Walve a/w. Mr.Pritish Chatterji for Appellant.….............. CORAM : UJJAL BHUYAN & MILIND N. JADHAV, JJ. DATE : MARCH 3, 2020. P.C. : 1.Heard Mr. Sham Walve, learned standing counsel,revenue for the appellant. 2.This appeal has been preferred by the revenue underSection 260A of the Income Tax Act, 1961 (for short "the Act")against the order dated 03.11.2016 passed by the Income TaxAppellate Tribunal, "D" Bench, Mumbai (for short "Tribunal") inIncome Tax Appeal No. 1532/Mum/2014 for the Assessment Year2011-12. 3.The appeal has been preferred projecting the followingquestions as substantial questions of law : 1. Whether on the facts and in the circumstances of the case andin law, Tribunal erred in overlooking the categorical fnding of theCIT(A) that the assessee had been unable to produce thecompletion / occupation certifcate evidencing the completion ofthe project till 31.03.2013, and in admitting fresh evidenceproduced before it for the frst time, without recording itssatisfaction, in violation of Rule 29 of the ITAT Rules, 1963 ? 2. Whether on the facts and in the circumstances of the case andin law, Tribunal erred in law by not setting aside the assessment tothe fle of the Assessing Ofcer for examination of additionalevidence produced by the assessee before the Tribunal ? 4.Basic objections of Mr.Walve, learned standingcounsel is that Tribunal did not follow the procedure laid down inRules 29 and 30 of the Income Tax (Appellate Tribunal) Rules,1963 vide accepting additional evidence adduced by therespondent-assessee. He has also referred to the provisionscontained in Section 143(2) of the Act to contend that if at allTribunal desired to have the additional evidence, respondent-assessee ought to have been relegated to the forum of theAssessing Ofcer. That having not been done, the same hasvitiated the impugned order giving rise to the two aforesaidsubstantial questions of law. 5.To appreciate the contention of Mr.Walve, let usbriefy advert to the orders passed by the authorities below. 6.Respondent-assessee is a partnership frm engaged inthe business of "developers and builders". In the assessmentproceeding for the assessment year under consideration,assessee fled e-return of income declaring total income at Nilfollowing claims of deduction under Section 80IB of the Act for anamount of Rs.7,06,04,247.00. During the assessment proceeding,Assessing Ofcer queried about the completion certifcate of thebuildings in question. Respondent-assessee stated before theAssessing Ofcer that the completion certifcate was underprocess though the building project was completed. By theassessment order dated 14.03.2013, Assessing Ofcer did notallow the claim of the assessee for deduction under Section 80IBof the Act which was thereafter added to the income of theassessee and treated as its income. 7.Aggrieved by the aforesaid decision of the AssessingOfcer, respondent-assessee preferred appeal before theCommissioner of Income Tax (Appeals)-25, Mumbai, also referredto as the frst appellate authority hereinafter. In the appellateproceedings too, the frst appellate authority noted thatrespondent-assessee did not produce the completion / occupationcertifcate within the stipulated time limit i.e. on or before31.03.2013. Before the appellate authority also, the said 3 of 5 certifcate was not produced. Accordingly, by the appellate orderdated 01.01.2014, the frst appellate authority held that therespondent-assessee was not entitled to get deduction underSection 80IB(10) of the Act. 7.Aggrieved by the aforesaid decision of the AssessingOfcer, respondent-assessee preferred appeal before theCommissioner of Income Tax (Appeals)-25, Mumbai, also referredto as the frst appellate authority hereinafter. In the appellateproceedings too, the frst appellate authority noted thatrespondent-assessee did not produce the completion / occupationcertifcate within the stipulated time limit i.e. on or before31.03.2013. Before the appellate authority also, the said 3 of 5 certifcate was not produced. Accordingly, by the appellate orderdated 01.01.2014, the frst appellate authority held that therespondent-assessee was not entitled to get deduction underSection 80IB(10) of the Act. 8.Respondent-assessee thereafter preferred furtherappeal before the Tribunal. Tribunal noted that respondent-assessee had furnished the commencement certifcate issued bythe Bombay Municipal Corporation dated 10.09.2007 and,occupation certifcate issued by the Municipal Corporation ofGreater Mumbai dated 26.02.2013, besides other documentswhich clearly shows that there were approvals which cover fulloccupation / permission for all the blocks of the building project.In view of the above facts, Tribunal vide the order dated03.11.2016, accepted the contention of the respondent-assesseethat the building was completed on 31.03.2013 and occupation inrespect of all the blocks of the project were obtained within thestipulated time limit on 31.03.2013. There being no violation ofany of the conditions mentioned in Section 80IB(10)of the Act, theabove claim of the respondent-assessee was allowed by theTribunal. 9.In so far contention of Mr.Walve is concerned, we feel thatthe same is more on form rather than on substance. Even duringthe assessment proceeding, respondent-assessee had assertedthat the completion certifcate to be issued by the Municipal Corporation was under process but the project was completed. Ithas to be noted that the certifcate was issued by anotherauthority i.e. Municipal Corporation over which the respondent-assessee had no control. When the completion / occupationcertifcate was handed over to the respondent-assessee, thesame was produced before the Tribunal. We see no harm in theTribunal taking cognizance of this certifcate. In so far referenceto Rules 29 and 30 of the Income Tax (Appellate Tribunal) Rules,1963 is concerned, it is trite that rules and procedures are thehandmaid of justice which are required to be applied to advancethe cause of justice and not to frustrate the same. 10.Be that as it may, the conclusion reached by theTribunal that the building was completed within the stipulatedtime on 31.03.2013 is a fnding of fact. Revenue has notquestioned that this fnding is incorrect or has not questioned theveracity of the completion / occupation certifcate producedbefore the Tribunal. If that be so than it is merely an objection onprocedure. In the light of the above, we are of the view that noquestion of law, much-less any substantial question of law, arisesfrom the order of the Tribunal. 11.The appeal is devoid of merit and is accordinglydismissed. No cost. [ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ]