The assessee a developer and builder, had filed the return of income for relevant AY claiming deduction u/s 80(IB)(10) of the Act. During assessment, the AO noted that with respect to certain housing project, the occupation certificate issued by Commissioner of Municipal Corporation was dated 28.08.2013. It was also observed that project was not completed on or before 31.03.2012 as the OC was issued on 28.08.2013. Similarly, the plumbing contractors M/S Star Plumbers issued plumbing work completion certificate on 26.04.2013 and final NOC issued by fire department was dated 24.03.2013. On this basis, the AO formed an opinion that buildings were not completed within the specified time as prescribed under section 80(IB)(10) of the Act. The AO further observed that the built up area of flats of the housing project had exceeded the prescribed limit as provided by the provisions of section 80IB(10)(c) of the Act. The AO held that assessee had not fulfilled the various conditions as envisaged by the provisions of section 80IB(10) of the Act and disallowed the deduction claimed. The CIT(A) partly allowed the appeal of the assessee. Aggrieved Revenue filed appeal before the Tribunal.

Tribunal held that,

++ assessee has applied for issue of completion certificate to the municipality on 22.03.2012 which was within the cut-off date of 31.03.2012 in terms of the provisions of section 80(IB)(10) of the Act and the said certificate was issued by Commissioner of MBMC on 28.08.2013. Besides, architect of the assessee i.e. M/s. Nakasha Architect, independent architect M/s. P.R. Consultants issued completion certificates certifying the completion of construction of building in the month of March. Similarly,other various evidences such as sample copy of possession letter dated 15.01.2012, copy of certificate dated 10.03.2012 issued by M/s. Fire Ext. Engineering for compliance of fire prevention and life safety measures dated 12.02.2012 and application for transfer of electric meters in the name of the purchasers were examined. All these evidences corroborate that assessee has completed the project within the specified time as prescribed under section 80(IB)(10) of the Act. The observations of the AO as regards non completion of the project on or before 31.03.2012, purchase of three flats by one family and area of each flat exceeding 1000 sq. ft. are based upon wrong appreciation of facts and based upon conjectures and surmises of the AO which are rightly negated by the CIT(A) by passing a very reasoned and speaking order discussing the satisfaction of each and every conditionality as provided in section 80(IB)(10) of the Act;

++ the case of the assessee is squarely covered by the decision of the jurisdictional High Court in the case of CIT vs. Hindustan Samuh Awas Ltd in which it has been held that it would be suffice if the assessee has applied for the issuance of completion certificate before the cutoff date or specified date under the provisions of section 80(IB)(10) of the Act and architect has specified the completion of the project. The High Court has held that the actual issuance of completion certificate by the municipal authorities is not relevant for the purpose of claiming deduction under section 80(IB)(10) of the Act. Similarly, in the case of Om Swami Smaran Developers (P.) Ltd. the co-ordinate bench of the Tribunal has held that where the conditions of clause (f) of section 80(IB)(10) of the Act is violated in respect of two flats then the disallowance has to be restricted only for the two flats and not qua the remaining flats which complied with the condition as envisaged under clause (f) of the Act. No reason was found to deviate from the finding of the first appellate authority.

(See 2019-TIOL-173-ITAT-MUM)