7-ITXA-1271-17.doc S.S.Kilaje IN HIGH COURT OF JUDICATURE AT BOMBAY O.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 appellant. 2. This appeal has been preferred by revenue under Section 260A of Income Tax Act, 1961 (for short "the Act") against order dated 03.11.2016 passed by Income Tax Appellate Tribunal, "D" Bench, Mumbai (for short "Tribunal") in Income Tax Appeal No. 1532/Mum/2014 for Assessment Year 2011-12. 3. appeal has been preferred projecting following questions as substantial questions of law : 1 of 5 Uploaded on - 11/03/2020 Downloaded on - 14/03/2020 16:42:34 7-ITXA-1271-17.doc 1. Whether on facts and in circumstances of case and in law, Tribunal erred in overlooking categorical fnding of CIT(A) that assessee had been unable to produce completion / occupation certifcate evidencing completion of project till 31.03.2013, and in admitting fresh evidence produced before it for frst time, without recording its satisfaction, in violation of Rule 29 of ITAT Rules, 1963 ? 2. Whether on facts and in circumstances of case and in law, Tribunal erred in law by not setting aside assessment to fle of Assessing Ofcer for examination of additional evidence produced by assessee before Tribunal ? 4. Basic objections of Mr.Walve, learned standing counsel is that Tribunal did not follow procedure laid down in Rules 29 and 30 of Income Tax (Appellate Tribunal) Rules, 1963 vide accepting additional evidence adduced by respondent-assessee. He has also referred to provisions contained in Section 143(2) of Act to contend that if at all Tribunal desired to have additional evidence, respondent- assessee ought to have been relegated to forum of Assessing Ofcer. That having not been done, same has vitiated impugned order giving rise to two aforesaid substantial questions of law. 2 of 5 Uploaded on - 11/03/2020 Downloaded on - 14/03/2020 16:42:34 7-ITXA-1271-17.doc 5. To appreciate contention of Mr.Walve, let us briefy advert to orders passed by authorities below. 6. Respondent-assessee is partnership frm engaged in business of "developers and builders". In assessment proceeding for assessment year under consideration, assessee fled e-return of income declaring total income at Nil following claims of deduction under Section 80IB of Act for amount of Rs.7,06,04,247.00. During assessment proceeding, Assessing Ofcer queried about completion certifcate of buildings in question. Respondent-assessee stated before Assessing Ofcer that completion certifcate was under process though building project was completed. By assessment order dated 14.03.2013, Assessing Ofcer did not allow claim of assessee for deduction under Section 80IB of Act which was thereafter added to income of assessee and treated as its income. 7. Aggrieved by aforesaid decision of Assessing Ofcer, respondent-assessee preferred appeal before Commissioner of Income Tax (Appeals)-25, Mumbai, also referred to as frst appellate authority hereinafter. In appellate proceedings too, frst appellate authority noted that respondent-assessee did not produce completion / occupation certifcate within stipulated time limit i.e. on or before 31.03.2013. Before appellate authority also, said 3 of 5 Uploaded on - 11/03/2020 Downloaded on - 14/03/2020 16:42:34 7-ITXA-1271-17.doc certifcate was not produced. Accordingly, by appellate order dated 01.01.2014, frst appellate authority held that respondent-assessee was not entitled to get deduction under Section 80IB(10) of Act. 8. Respondent-assessee thereafter preferred further appeal before Tribunal. Tribunal noted that respondent- assessee had furnished commencement certifcate issued by Bombay Municipal Corporation dated 10.09.2007 and, occupation certifcate issued by Municipal Corporation of Greater Mumbai dated 26.02.2013, besides other documents which clearly shows that there were approvals which cover full occupation / permission for all blocks of building project. In view of above facts, Tribunal vide order dated 03.11.2016, accepted contention of respondent-assessee that building was completed on 31.03.2013 and occupation in respect of all blocks of project were obtained within stipulated time limit on 31.03.2013. There being no violation of any of conditions mentioned in Section 80IB(10)of Act, above claim of respondent-assessee was allowed by Tribunal. 9. In so far contention of Mr.Walve is concerned, we feel that same is more on form rather than on substance. Even during assessment proceeding, respondent-assessee had asserted that completion certifcate to be issued by Municipal 4 of 5 Uploaded on - 11/03/2020 Downloaded on - 14/03/2020 16:42:34 7-ITXA-1271-17.doc Corporation was under process but project was completed. It has to be noted that certifcate was issued by another authority i.e. Municipal Corporation over which respondent- assessee had no control. When completion / occupation certifcate was handed over to respondent-assessee, same was produced before Tribunal. We see no harm in Tribunal taking cognizance of this certifcate. In so far reference to Rules 29 and 30 of Income Tax (Appellate Tribunal) Rules, 1963 is concerned, it is trite that rules and procedures are handmaid of justice which are required to be applied to advance cause of justice and not to frustrate same. 10. Be that as it may, conclusion reached by Tribunal that building was completed within stipulated time on 31.03.2013 is fnding of fact. Revenue has not questioned that this fnding is incorrect or has not questioned veracity of completion / occupation certifcate produced before Tribunal. If that be so than it is merely objection on procedure. In light of above, we are of view that no question of law, much-less any substantial question of law, arises from order of Tribunal. 11. appeal is devoid of merit and is accordingly dismissed. No cost. [ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ] 5 of 5 Uploaded on - 11/03/2020 Downloaded on - 14/03/2020 16:42:34 Pr. Commissioner of Income-tax-18 v. Rattanchand Rikhabdas Jain Chemical Work