The ACIT, Circle-3(1), Visakhapatnam v. M/s Gayatri Construction Company, Visakhapatnam

ITA 253/VIZ/2009 | 2006-2007
Pronouncement Date: 29-03-2010 | Result: Dismissed

Appeal Details

RSA Number 25325314 RSA 2009
Assessee PAN AAFFG6320C
Bench Visakhapatnam
Appeal Number ITA 253/VIZ/2009
Duration Of Justice 10 month(s) 16 day(s)
Appellant The ACIT, Circle-3(1), Visakhapatnam
Respondent M/s Gayatri Construction Company, Visakhapatnam
Appeal Type Income Tax Appeal
Pronouncement Date 29-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 29-03-2010
Date Of Final Hearing 22-03-2010
Next Hearing Date 22-03-2010
Assessment Year 2006-2007
Appeal Filed On 13-05-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO.253/VIZAG/2009 ASSESSMENT YEAR : 2006-07 ACIT CIRCLE-3(1) VISAKHAPATNAM M/S.GAYATRI CONSTRUCTION COMPANY VISAKHAPATNAM (APPELLANT) VS. (RESPONDENT) PAN NO.AAFFG 6320C APPELLANT BY: SHRI G.V.N. HARI CA RESPONDENT BY: SHRI SUBRATA SARKAR DR ORDER PER SHRI S.K. YADAV JUDICIAL MEMBER:- THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST T HE ORDER OF THE CIT(A) ON VARIOUS GROUND WHICH ARE AS UNDER: 1. THE CIT(A) HAS ERRED BOTH IN LAW AND ON FACTS OF TH E CASE WHILE DELETING ADDITION MADE BY THE ASSESSING OFFICER. 2. THE CIT(A) OUGHT TO HAVE CONFIRMED THE DISALLOWANCE MADE BY THE ASSESSING OFFICER U/S 80IB(10). THE CIT(A) FAILED T O APPRECIATE THE FACT THAT DURING THE COURSE OF ASSESSMENT PROCEEDIN GS THE ASSESSEE FAILED TO FURNISH THE COMPLETION CERTIFICA TE FROM THE LOCAL AUTHORITY AS REQUIRED U/S 80IB (10) OF THE I.T. ACT 1961. THE CIT(A) OUGHT TO HAVE CONSIDERED THE FACT THAT THE L OCAL AUTHORITY (GVMC) ITSELF HAS CONFIRMED THAT THERE IS NO INFORM ATION ON ITS RECORDS WITH REGARD TO THE ACTUAL DATE OF COMPLETIO N OF THE SUBJECT- PROJECT VIDE COMMISSIONER GVMC VISAKHAPATNAMS LE TTER DATED 30.12.2008. 3. THE CIT(A) OUGHT TO HAVE GIVEN AN OPPORTUNITY TO TH E ASSESSING OFFICER BEFORE ADMITTING THE ADDITIONAL EVIDENCE AS REQUIRED UNDER RULE 46 OF I.T. RULES. THE CIT(A) OUGHT TO HAVE CON SIDERED THE ASSESSING OFFICERS REQUEST TO EXAMINE THE MUNICIPA L RECORDS AND ALSO THE MUNICIPAL COMMISSIONER BEFORE ALLOWING THE ADDITIONAL EVIDENCE AS HELD IN 296 ITR 106 (DELHI) & 305 ITR ( AT) 113 JODHPUR (TM). 4. THE CIT(A) OUGHT TO HAVE CONSIDERED THAT THE ASSESS EE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) SINCE THE ASSESS EE IS ONLY A CONTRACTOR AND NOT THE DEVELOPER. THE ASSESSEE SOL D THE FLATS AT THE FOUNDATION LEVEL/AT SEMI-FINISHED STAGE OF CON STRUCTION AND SUBSEQUENTLY CONSTRUCTED THE FLATS BY EXECUTING A S EPARATE CONTRACT. 2 5. THE CIT(A) OUGHT TO HAVE UPHELD THE ACTION OF THE A SSESSING OFFICER IN REJECTION OF BOOKS OF ACCOUNT AND CONFIRMED THE ADDITIONS MADE BY THE ASSESSING OFFICER. 6. THE CIT(A) OUGHT TO HAVE REMANDED THE MATTER BACK T O THE FILE OF THE ASSESSING OFFICER FOR REFERRING THE COST OF THE PROJECT TO THE DEPARTMENTAL VALUATION OFFICER. THE CIT(A) OUGHT T O HAVE GIVEN AN OPPORTUNITY TO FURNISH COMPARABLE CASES ENGAGED IN THE BUSINESS OF CONSTRUCTION ACTIVITY TO PROVE THAT THE PROFIT SHOW N BY THE ASSESSEE IS UNCOMPARABLE ABNORMAL AND BEYOND THE MARKET REA LITY. 7. ANY OTHER GROUND(S) THAT MAY BE URGED AT THE TIME O F HEARING. 2. THOUGH THE REVENUE HAS RAISED VARIOUS GROUNDS OF APPEAL BUT THEY ALL RELATE TO THE DENIAL OF DEDUCTION CLAIMED U/S 80IB(1 0) OF THE I.T. ACT BY THE A.O. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE ORDERS OF AUTHORITIES BELOW AND DOCUMENTS PLACED ON RECORD . 4. THE FACTS BORNE OUT FROM THE RECORD ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE CONSTRUCTION ACTIVI TIES. FOR THE IMPUGNED ASSESSMENT YEAR THE RETURN WAS FILED DISCLOSING AN INCOME OF RS.6 29 81 237/- ON WHICH DEDUCTION WAS CLAIMED U/S 80IB(10) OF THE ACT THEREBY RETURNING INCOME AT NIL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS ASSESSING OFFICER WAS OF THE VIEW WITH REGARD TO THE CLAIM OF DEDUCTION U/S 80IB(10) THAT THE ASSESSEE IS NOT ENTI TLED TO THE SAID DEDUCTIONS AS THE PROJECT WAS NOT COMPLETED IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR. HE ACCORDINGLY DISALLOWED THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. BEFORE DISALLOWANCE THE CLAIM OF DEDUCTION ASSESSING OFFICER ASKED THE ASSESSEE TO FURNISH THE COMPLETIO N CERTIFICATE FROM THE LOCAL AUTHORITIES I.E. GREATER VISAKHAPATNAM MUNICIPAL CO RPORATION (GVMC). THE ASSESSEE FURNISHED A CERTIFICATE FROM GVMC WHICH WA S REJECTED BY THE A.O. ON THE GROUND THAT IT WAS NOT A COMPLETION CERTIFIC ATE. THE A.O. ISSUED THE SUMMONS AND DIRECTED THE GVMC TO FURNISH THE COMPLE TION CERTIFICATE. IN RESPONSE TO THE SAME THE GVMC VIDE LETTER DATED 30. 12.2008 CLARIFIED THAT THE PROJECT WAS COMPLETED ON 1.4.2006. SINCE THE D ATE OF COMPLETION WAS BEYOND THE PREVIOUS YEAR WHICH ENDED ON 31.3.2006 T HE ASSESSING OFFICER WAS OF THE VIEW THAT ASSESSEE WAS NOT ENTITLED TO D EDUCTION U/S 80IB(10) OF THE ACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION . THE ASSESSEE PREFERRED 3 AN APPEAL BEFORE THE CIT(A) AND SUBMITTED A CERTIFI CATE ISSUED BY THE GVMC DATED 28.1.2009 WHEREIN IT WAS CERTIFIED THAT PROJE CT WAS COMPLETED ON 15.3.2006. THE SAME WAS SOUGHT TO BE INTRODUCED AS AN ADDITIONAL EVIDENCE. IT WAS ALSO SUBMITTED BEFORE THE CIT(A) THAT A.O. DIRECTLY COLLECTED THE COMPLETION CERTIFICATE FROM THE GVMC ON 30.12. 2008 AND ON THE SAME DAY THE ASSESSMENT WAS COMPLETED ON THE BASIS OF SA ID CERTIFICATE WITHOUT AFFORDING ANY OPPORTUNITY TO THE ASSESSEES TO REBUT THE SAME. ON RECEIPT OF THE ASSESSMENT ORDER THE ASSESSEE APPROACHED THE GV MC AND OBTAINED THE CERTIFICATE DATED 28.1.2009 ACCORDING TO WHICH THE PROJECT WAS COMPLETED DURING THE FINANCIAL YEAR 2005-06 I.E. THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR UNDER CONSIDERATION. 5. AS ADDITIONAL EVIDENCE WAS SOUGHT TO BE INTRODUC ED THE ASSESSING OFFICER WAS GIVEN AN OPPORTUNITY BEFORE ADMITTING T HE SAME IN TERMS OF RULE 46A OF THE I.T. RULES VIDE OFFICE LETTER DATED 16.2. 2009. THE CIT HAS ALSO FORWARDED THIS ADDITIONAL EVIDENCE TO THE ASSESSING OFFICER FOR ITS EXAMINATION AND COMMENTS. HE HAS SPECIFICALLY DIRECTED THE A.O . TO EXAMINE THE CORRECTNESS OF THE CERTIFICATE DATED 18.1.2009 ISSU ED BY THE GVMC. BUT NOTHING WAS BROUGHT ON RECORD BY THE ASSESSING OFFI CER TO FALSIFY THIS CERTIFICATE ISSUED BY THE GVMC. RELYING UPON THE C ERTIFICATE THE CIT(A) GRANTED THE DEDUCTION U/S 80IB(10) TO THE ASSESSEES. 6. AGGRIEVED THE REVENUE HAS PREFERRED AN APPEAL W ITH THE SUBMISSION THAT ASSESSING OFFICER WAS NOT AFFORDED A PROPER OP PORTUNITY OF BEING HEARD BEFORE ADMITTING THE ADDITIONAL EVIDENCE. MORE SO THE ASSESSING OFFICER HAS ALSO OBTAINED THE CERTIFICATE FROM THE GVMC IN WHIC H IT WAS STATED THAT PROJECT WAS COMPLETED ON 1.4.2006. SINCE TWO CONTR ADICTORY AFFIDAVITS ARE PLACED BEFORE THE CIT(A) THE CIT(A) SHOULD HAVE MA DE ITS OWN INVESTIGATION OR REMANDED THE MATTER BACK TO THE A.O. FOR NECESSA RY ENQUIRIES FROM THE GVMC BUT HE DID NOT DO SO AND ACCEPTED THE CLAIM OF THE ASSESSEES. 7. THE LD. COUNSEL FOR THE ASSESSEES ON THE OTHER H AND HAS SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS A SSESSING OFFICER HAS OBTAINED THE COMPLETION CERTIFICATE DATED 30.12.200 8 AND ON THE SAME DAY HE 4 COMPLETED THE ASSESSMENT WITHOUT CONFRONTING THIS E VIDENCE TO THE ASSESSEE. BY DOING SO THE ASSESSING OFFICER HAS VIOLATED THE PRINCIPLE OF NATURAL JUSTICE. WHEN THESE FACTS WERE BROUGHT TO THE NOTICE OF THE ASSESSEE IT OBTAINED THE COMPLETION CERTIFICATE FROM THE GVMC VIDE DATED 28. 1.2009 AND IN THIS CERTIFICATE IT HAS BEEN MENTIONED THAT IT WAS ISSUE D IN PARTIAL MODIFICATION TO THE COMPLETION CERTIFICATE ISSUED BY THIS OFFICE DA TED 30.12.2008 AND IN THIS CERTIFICATE THE DATE OF COMPLETION WAS SHOWN AS 15. 3.2006. MEANING THEREBY THE PROJECT WAS COMPLETED WITHIN THE PREVIOUS YEAR RELEVANT TO THE IMPUGNED ASSESSMENT YEAR. THIS CERTIFICATE WAS CONFRONTED T O THE ASSESSING OFFICER WITH A DIRECTION TO ASCERTAIN THE GENUINENESS OF THE CER TIFICATE FROM THE GVMC. ASSESSING OFFICER HAS NOT BROUGHT OUT ANYTHING ON R ECORD TO FALSIFY THIS CERTIFICATE. THEREFORE THE CIT HAS RIGHTLY ACCEPT ED THE CERTIFICATE AND HAVING RELIED UPON IT HE ALLOWED DEDUCTION U/S 80IB OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE HOWEVER PLACED HEAVY RELIANCE UPON THE ORDER OF THE CIT(A). 9. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF THE ORDERS OF THE LOWER AUTHORITIES WE FIND THAT SOLE DISPUTE IN THIS CASE IS WITH REGARD TO THE DATE OF COMPLETION OF THE PROJECT. U NDISPUTEDLY THE ASSESSING OFFICER HAS OBTAINED THE CERTIFICATE ON 30.12.2008 FROM THE GVMC AT THE BACK OF THE ASSESSEES. THIS CERTIFICATE WAS NEITHER CON FRONTED TO THE ASSESSEES NOR HIS COMMENTS WERE CALLED. HAVING RELIED UPON THIS CERTIFICATE THE ASSESSING OFFICER HAS DENIED THE DEDUCTION U/S 80IB OF THE ACT . THE ACTION OF THE ASSESSING OFFICER IS AGAINST THE PRINCIPLE OF NATUR AL JUSTICE ACCORDING TO WHICH BEFORE ADMITTING ANY EVIDENCE WHICH GOES AGAINST TH E ASSESSEES AN OPPORTUNITY OF BEING HEARD SHOULD BE AFFORDED TO TH E ASSESSEE. BEFORE THE CIT(A) THE ASSESSEE HAS PRODUCED THE CERTIFICATE O F THE GVMC WHICH WAS ISSUED IN PARTIAL MODIFICATION OF THE EARLIER CERTI FICATE AND ACCORDING TO THIS CERTIFICATE THE PROJECT WAS COMPLETED ON 15.3.2006 . THIS CERTIFICATE WAS CONFRONTED TO THE A.O. BY THE CIT BEFORE ADMITTING THE SAME. A.O. WAS ALSO DIRECTED TO EXAMINE THE CORRECTNESS OF THE CERTIFIC ATE. A COPY OF THIS CERTIFICATE AND THE LETTER OF THE CIT ARE PLACED ON RECORD FOR OUR PERUSAL. WHEN THE ASSESSING OFFICER HAS NOT BROUGHT OUT ANYT HING ON RECORD CONTRARY TO THE CERTIFICATE THE CIT(A) HAS RELIED UPON THIS CERTIFICATE AND ALLOWED THE 5 DEDUCTION U/S 80IB TO THE ASSESSEES. THE RELEVANT O BSERVATION OF THE CIT(A) IS EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: I HAVE CAREFULLY EXAMINED THE FACTS OF THE CASE AS WELL AS THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT COM PANY. THE ONLY GROUND ON WHICH THE ASSESSING OFFICER REJECTED THE CLAIM OF DEDUCTION U/S 80IB(10) IS THAT THE PROJECT WAS COMPL ETED NOT IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEAR UNDER CON SIDERATION BUT ON 1.4.2006. THE SAID CONCLUSION WAS REACHED ON TH E BASIS OF COMPLETION CERTIFICATE OBTAINED BY THE ASSESSING OFFICER DIRECTLY FROM GVMC WHO VIDE LETTER DATED 30.12.2008 STATED T HAT THE DATE OF COMPLETION OF THE PROJECT WAS 1.4.2006. THE APP ELLANT SOUGHT TO INTRODUCE ADDITIONAL EVIDENCE IN THE FORM OF ANOTHE R COMPLETION CERTIFICATE ISSUED VIDE B.A. NO.10615/04/ACP-I(III)/G 2 DATED 28.1.2009 WHICH READS AS UNDER: IN PARTIAL MODIFICATION TO THE COMPLETION CERTIFICATE ISSUED BY THIS OFFICE DATED 30.12.2008 THIS IS TO CERTIFY THAT THE PROJECT CONSTRUCTED BY M/S. GAYATRI CONSTRUCTION COMPANY IN PLOT NOS.8P 9P 10 11 & 12 OF T.S. NO.78 & 1032/B OF WARD NO.(OLD WARD NO.18) RAMNAGAR VISAKHAPATNAM WAS COMPLETED AS ON 15.3.2006 FOR WHICH APPROVAL WAS ISSUED BY THE MUNICIPAL CORPORATION VIDE B.A. NO.10615/04/ACP-I/V2 DATED 8.6.2004. AS ALREADY STATED IN PARA-4.2 OF THIS ORDER THE AS SESSING OFFICER OBJECTED TO THE INTRODUCTION OF SUCH ADDITIONAL EVI DENCE. IN THIS CONTEXT IT IS OBSERVED THAT HON'BLE GAUHATI HIGH C OURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. RANJIT KUMAR CHOUD HARY REPORTED IN 288 ITR 179 EXAMINED THE ISSUE RELATIN G TO ADMISSIBILITY OF ADDITIONAL EVIDENCE. IN THE SAID D ECISION IT HAS BEEN HELD THAT PRODUCTION OF ADDITIONAL EVIDENCE IS NOT A MATTER OF RIGHT. HOWEVER IN EXCEPTIONAL CASES ON THE BASIS OF ANY ONE OF THE GROUNDS WHICH HAVE BEEN MANIFESTLY AND APPARENT LY SET OUT IN RULE -46A(1) ITSELF THE APPELLANT IS PERMITTED TO PRODUCE ADDITIONAL EVIDENCE SUBJECT TO APPROVAL/ADMISSION OF THE SAME BY THE APPELLATE AUTHORITY. THIS PROVISION ENUMERATES FOU R CIRCUMSTANCES ALLOWING THE APPELLANT TO PRODUCE ADDITIONAL EVIDEN CE VIZ. (A) IF THE ASSESSING OFFICER REFUSES TO ADMIT THE EVIDENCE WHI CH OUGHT TO HAVE BEEN ADMITTED; (B) WHEN THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING SUCH EVIDENCE WHICH HE WAS CAL LED UPON TO PRODUCE BY THE ASSESSING OFFICER; (C) IN CASE WHERE THE APPELLANT WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING BE FORE THE ASSESSING OFFICER ANY EVIDENCE WHICH IS RELEVANT TO ANY GROUND OF APPEAL AND (D) WHEN NO SUFFICIENT/REASONABLE OPPORT UNITY OF HEARING TO THE APPELLANT WAS GIVEN TO ADDUCE ANY RE LEVANT EVIDENCE BY THE ASSESSING OFFICER AT THE TIME OF PASSING THE ORDER IMPUGNED. SUB-RULES (2) AND (3) OF RULE-46A PROVIDE THAT IF A DDITIONAL 6 EVIDENCE IS PERMITTED TO BE PRODUCED THEN FIRSTLY THERE MUST BE REASONS TO BE RECORDED IN WRITING AND SECONDLY REAS ONABLE OPPORTUNITY HAS TO BE GIVEN TO THE ASSESSING AUTHOR ITY TO REFUTE AND REJECT SUCH PRODUCTION. IN THE INSTANT CASE THE PE TITION FOR ADMISSION OF ADDITIONAL EVIDENCE WAS FORWARDED TO T HE ASSESSING OFFICER FOR HIS COMMENTS WHO OBJECTED TO THE SAID A DDITIONAL EVIDENCE ON THE GROUND THAT ADEQUATE OPPORTUNITY WA S PROVIDED TO THE APPELLANT IN COURSE OF THE ASSESSMENT PROCEEDIN GS TO FURNISH THE COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY WHICH THE APPELLANT FAILED TO PRODUCE. FURTHER IT WAS STATE D BY THE ASSESSING OFFICER THAT EVEN THE COPY OF THE COMPLETION CERTIF ICATE DATED 30.12.2008 RECEIVED DIRECTLY BY HIM FROM GVMC WAS G IVEN TO THE APPELLANT AND THE APPELLANT DID NOT FURNISH ANY EXP LANATION TO THE SAME IN COURSE OF THE ASSESSMENT PROCEEDINGS. HOWE VER THE APPELLANTS CONTENTION THAT THOUGH A COPY OF THE CO MPLETION CERTIFICATE DATED 30.12.2008 RECEIVED BY THE ASSESS ING OFFICER WAS GIVEN TO THE APPELLANT ON THE SAME DAY THE ASSESSM ENT ORDER WAS ALSO PASSED ON THE SAME DAY WITHOUT AFFORDING A REA SONABLE OPPORTUNITY TO THE APPELLANT FOR FURNISHING FURTHER CLARIFICATION IN THAT REGARD. PERUSAL OF THE RECORD CONFIRM THE FAC T THAT A NUMBER OF OPPORTUNITIES WERE PROVIDED TO THE APPELLANT FOR FURNISHING OF COMPLETION CERTIFICATE FROM THE LOCAL AUTHORITY. IN PURSUANCE TO THE SAME THE APPELLANT FILED AN ENDORSEMENT ISSUED BY GVMC DATED 16.12.2008 WHEREIN THE ASSESSMENT OF PROPERTY TAX A FTER COMPLETION OF BUILDINGS I.E. SARADA TOWERS ON 1.10 .2005 DURGA TOWERS ON 1.10.2005 AND SEETA TOWERS ON 1.4.2006 WA S ENDORSED. THE SAID ENDORSEMENT WAS REJECTED BY THE ASSESSING OFFICER STATING THAT THE SAME DID NOT CONSTITUTE A COMPLETION CERTI FICATE AS IT WAS ONLY AN ENDORSEMENT REGARDING THE ASSESSMENT OF PRO PERTY TAX. THEREAFTER THE ASSESSING OFFICER BY ISSUING SUMMON S TO THE GVMC OBTAINED A COMPLETION CERTIFICATE DATED 30.12.2008 WHEREIN THE DATE OF COMPLETION OF THE PROJECT WAS INDICATED AS 1.4.2006. THOUGH A COPY OF THE SAID CERTIFICATE WAS FURNISHED TO THE APPELLANT WITHOUT WAITING FOR THE CLARIFICATION T HE ASSESSMENT WAS COMPLETED ON THE SAME DAY I.E. 30.12.2008 BASED UP ON THE COMPLETION CER5TIFICATE OBTAINED BY THE ASSESSING O FFICER. NARRATION OF THE ABOVE FACTS CLEARLY INDICATE THAT THE APPELL ANT WAS PREVENTED BY SUFFICIENT CAUSE IN PRODUCING FURTHER EVIDENCE I N SUPPORT OF ITS CLAIM THAT THE PROJECT WAS COMPLETED PRIOR TO 1.4.2 006 AS NO REASONABLE OPPORTUNITY WAS PROVIDED TO THE APPELLAN T TO ADDUCE FURTHER EVIDENCE IN THIS REGARD BY COMPLETING THE A SSESSMENT ON THE SAME DAY I.E. THE DAY ON WHICH THE COMPLETION CERTIFICATE OBTAINED BY THE ASSESSING OFFICER WAS COMMUNICATED TO THE APPELLANT. IT IS NORMAL THAT T6HE APPELLANT NEEDED S OME TIME TO GET FURTHER CLARIFICATION FROM THE GVMC REGARDING THE C OMPLETION CERTIFICATE ISSUED BY IT ON 30.12.2008. THE SAME W AS DONE AFTER COMPLETION OF THE ASSESSMENT AND THE GVMC VIDE CERT IFICATE DATED 28.1.2009 CONFIRMED THAT THE COMPLETION DATE IS 15. 3.2006. THEREFORE IN MY CONSIDERED VIEW THE ADDITIONAL EV IDENCE FURNISHED BY THE APPELLANT IS ADMISSIBLE. ONCE ON THE BASIS OF THE COMPLETION CERTIFICATE DATED 28.1.2009 THE DATE OF COMPLETION BEING 15.3.2006 7 IS ACCEPTED THE APPELLANT WOULD BE ENTITLED TO THE DEDUCTION U/S 80IB(10) OF THE ACT. EVEN OTHERWISE ALSO IN VIEW OF THE ALTERNATIVE ARG UMENT OF THE APPELLANT THE DEDUCTION U/S 80IB(10) WOULD BE ADMISSIBLE. S. 80IB(10) READS AS UNDER: THE AMOUNT OF DEDUCTION IN THE CASE OF AN UNDERTAK ING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31 ST DAY OF MARCH 2007 BY A LOCAL AUTHORITY SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN THE PREV IOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING P ROJECT IF :- (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER 1 ST DAY OF OCTOBER 1998 AND COMPLETES SUCH CONSTRUCTION- (I) IN A CASE WHERE THE HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY BEFORE THE 1 ST DAY OF APRIL 2004 ON OR BEFORE THE 31 ST DAY OF MARCH 2008; (II) IN A CASE WHERE THE HOUSING PROJECT HAS BEEN OR IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1 ST 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; (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. PERUSAL OF THE APPELLANTS CASE SHOWS THAT IT FALLS IN SUB-CLAUSE (II) OF CLAUSE (A) OF S. 80IB(10). THE APPELLANTS PROJ ECT WAS APPROVED BY THE LOCAL AUTHORITY I.E. GVMC VIDE BA NO.2004 B A-10615/ACP- VG2 DATED 8.6.2004 I.E. AFTER 1.4.2004. THEREFOR E IN ORDER TO BE ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT THE PROJECT SHOULD HAVE BEEN COMPLETED WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE PROJECT WAS APPROVED BY THE GVMC I.E. 31.3.2009. EXPLANATION (II) AS REPRODUCE3D ABOVE R EQUIRES THE COMPLETION CERTIFICATE TO BE ISSUED BY THE LOCAL AU THORITY FOR AVAILING 8 THE DEDUCTION ADMISSIBLE U/S 80IB(10). HENCE EVEN IF THE COMPLETION CERTIFICATE DATED 30.12.2008 OBTAINED BY THE ASSESSING OFFICER WHEREIN IT WAS INDICATED THAT THE PROJECT W AS COMPLETED ON 1.4.2006 IS TAKEN INTO COGNIZANCE WITHOUT TAKING IN TO ACCOUNT THE ADDITIONAL EVIDENCE IN THE FORM OF COMPLETION CERTI FICATED DATED 28.1.2009 WHEREIN IT WAS INDICATED THAT T6HE PROJEC T WAS COMPLETED ON 15.3.2006 STILL THE APPELLANT WOULD B E ELIGIBLE FOR DEDUCTION U/S 80IB(10) AS THE PROJECT HAS BEEN COMPL ETED BEFORE 31.3.2009. IN VIEW OF THE ABOVE FINDINGS THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE DEDUCTION U/S 80IB(10) OF THE ACT TO THE E NTIRE PROFIT OF RS.6 29 81 237/- AS DISCLOSED BY THE APPELLANT AND WHICH IS TO BE TAKEN AS THE PROFIT OF THE UNDERTAKING AS PER THE F INDINGS GIVEN WITH RESPECT TO GROUND NO.1 OF THE APPEAL. THUS THIS G ROUND OF APPEAL IS ALSO ALLOWED. 10. DURING THE COURSE OF HEARING OF THE APPEAL A SP ECIFIC QUERY WAS RAISED FROM THE LD. D.R. WHETHER THEY HAVE ANY MATERIAL TO CONTRADICT THE DATE OF COMPLETION OF THE PROJECT AS STATED IN THE COMPLETI ON CERTIFICATE ISSUED ON 28.1.2009. IN RESPONSE THERETO THE LD. D.R. PLACED A RELIANCE UPON CERTIFICATE DATED 30.12.2008 WHICH WAS OBTAINED AT THE BACK OF THE ASSESSEES. WE HAVE ALSO EXAMINED THE CONTENTIONS O F THE LD. D.R. THAT IN THE LIGHT OF TWO CONTRADICTORY CERTIFICATES THE MA TTER MAY BE SENT BACK TO THE A.O. BUT WE DO NOT FIND ANY FORCE IN THIS ARGUMENT BECAUSE THE SECOND CERTIFICATE WAS ISSUED IN A PARTIAL MODIFICATION OF THE EARLIER COMPLETION CERTIFICATE. SINCE NOTHING IS BROUGHT ON RECORD TO FALSIFY THE GENUINENESS OF THE CERTIFICATE WE ARE OF THE VIEW THAT THE PROJEC T WAS COMPLETED WITHIN THE PREVIOUS YEAR RELEVANT TO THE IMPUGNED ASSESSMENT Y EAR AND ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE ACT. SIN CE NO INFIRMITY IS POINTED OUT IN THE ORDER OF THE CIT(A) WE CONFIRM THE SAME . 11. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON 29.3.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM DATED 29 TH MARCH 2010 9 COPY TO 1 ACIT CIRCLE-3(1) VISAKHAPATNAM 2 M/S. GAYATRI CONSTRUCTION COMPANY 1-113-20/1 PL OT NO.165/166 SHIVAS CASTLE SECTOR-8 M.V.P. COLONY VISAKHAPATNAM 3 THE CIT VISAKHAPATNAM 4 THE CIT(A) VISAKHAPATNAM 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM