Pr. Commissioner Of Income Tax – 6 v. Kewal Real Estate Pvt Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.INCOME TAX APPEAL NO. 793 OF 2016 Pr. Commissioner of Income Tax – 6 VersusKewal Real Estate Pvt Ltd ................... Mr. Suresh Kumar for the AppellantMr. Suresh Kumar for the Appellant ................... ..Appellant ..Respodent CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. P.C.: DATE : DECEMBER 10, 2018. 1.The Revenue has challenged the judgment of theIncome Tax Appellate Tribunal ("Tribunal" for short) dated21.9.2015. Following questions were urged before us:- “(i) Whether on the facts and in the circumstances of thecase and in law, the Tribunal was justified in holdingthat the assessee satisfied all the conditions stipulatedin the provisions of Section 80IB(10) of the Income TaxAct, 1961 and therefore, would be eligible to claimdeduction?case and in law, the Tribunal was justified in holdingthat the assessee satisfied all the conditions stipulatedin the provisions of Section 80IB(10) of the Income TaxAct, 1961 and therefore, would be eligible to claimdeduction? (ii) Whether on the facts and in the circumstances of thecase and in law, the Tribunal erred in allowingdeduction u/S. 80IB(10) ignoring the fact that, theassessee has not completed the project due to failureattributable to assessee itself within stipulated timeprescribed u/S. 80IB(10) of the Income Tax Act, 1961?case and in law, the Tribunal erred in allowingdeduction u/S. 80IB(10) ignoring the fact that, theassessee has not completed the project due to failureattributable to assessee itself within stipulated timeprescribed u/S. 80IB(10) of the Income Tax Act, 1961? 2.The issues pertain to the assessment year 2008-09.Respondent - assessee is a Private Limited Company andengaged in the business of real estate development. Inrelation to residential units constructed by the assessee, ithad claimed deduction under Section 80IB(10) of the IncomeTax Act, 1961 ("the Act" for short). Assessing OfÏcer deniedthe benefit on the premise that the housing project was notcompleted within the time permitted. The CIT(A) allowed theassessee's appeal upon which the Revenue filed appealbefore the Tribunal. The Tribunal, by the impugnedjudgment, dismissed the Revenue's appeal and confirmedthe decision of the CIT(A). The Tribunal made the followingobservations:- 9. It is evident from documents that originally theassessee sought approval of buildings A6 and A7,subsequently renamed as A1 and A2 on 2.2.2005. Itwas after the time lag of 18 months that the approval ofother six residential buildings was obtained by theassessee on 8.9.2006 from PMC, while seeking initialapproval there was no mention of other buildings. Theobservation of the Assessing Officer that thesubsequent approval by PMC is not fresh approval butrevised approval in our opinion does not carry weight.The building plan has been revised for buildings A1 andA2 only. As regards other buildings i.e A3 to A8 is concerned the building plan was approved for the firsttime. It is not disputed by the Revenue that buildingsA1 and A2 in Phase-I were complete and occupationcertificate was granted by the PMC in respect of saidbuildings on 5.9.2008. In so far as the buildings A3 toA8 in Phase-II are concerned, the completion certificatein respect of all the flats comprising in said buildingswere granted by PMC up to March 2011, whereas, thelast date for obtaining completion certificate was31.03.2012. Thus, the assessee had obtainedcompletion certificate well within the time framementioned in the provisions of Section 80IB(10) of theAct in respect of all the buildings in Phase-I and Phase-II.” concerned the building plan was approved for the firsttime. It is not disputed by the Revenue that buildingsA1 and A2 in Phase-I were complete and occupationcertificate was granted by the PMC in respect of saidbuildings on 5.9.2008. In so far as the buildings A3 toA8 in Phase-II are concerned, the completion certificatein respect of all the flats comprising in said buildingswere granted by PMC up to March 2011, whereas, thelast date for obtaining completion certificate was31.03.2012. Thus, the assessee had obtainedcompletion certificate well within the time framementioned in the provisions of Section 80IB(10) of theAct in respect of all the buildings in Phase-I and Phase-II.” From the above portion of the judgment of the Tribunal,it can be seen that the assessee had established on recordthat the buildings referred to as Complex A1 and A2 werepart of separate project for which a separate approval wasgranted by the Municipal Corporation. Likewise, with respectto buildings Complex A3 to A8, building permission wasgranted by the Municipal Corporation separately. It was, inthis background, that the CIT(A) and the Tribunal acceptedtwo different dates of completion taking into account therespective dates of approval of the housing project. Theentire issue is one of the facts. No question of law arises. The Income Tax Appeal is dismissed. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]