TMI Blog2012 (12) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit furnished by the Director of the assessee and submitted that the delay was solely attributable to a serious lapse on the part of its employee and was totally unintended and beyond the control of the assessee. He has also referred to the following affidavit furnished by the concerned employee which is self explanatory:- I, Sambhaji Gulab Puri aged about 40 years at present residing at 1195 Fergusson College Road, Pune-411 005, do hereby declare on solemn oath and affirmation as under: 1. That I am working as accounts clerk in M/s. Shivshanti Constructions Pvt. Ltd., having its office at 501 Eden Hall, Model Colony, Pune-411 016 (hereinafter referred to as the said company). 2. That on or about 17-2-2010 the inward clerk Smt. Jyoti Sinha in the said company handed over to me an envelope received from the Income-tax Office, Pune for handing over the same to the Board of Directors. However, through mistake and oversight the said envelope was misplaced by me and I lost track of the same and forgot to inform my seniors about the same. 3. That in the month of May 2011, when an inquiry was made by my seniors in the matter, I came to know that the said envelope contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him in the matter and requested for a copy of the same. 9. That the similar reminders were sent by the said company to the learned CIT(A)-III Pune vide letters dated 12- 4-2011 and 5-5-2011. 10. That the learned CIT(A)-III Pune vide his letter dated 24- 5-2011 informed to the said company that the impugned appellate order was duly served on the said company and enclosed copy of postal acknowledgement receipt, and further informed that the copy of the impugned order can be furnished upon payment of copying charges of ₹ 100.00. 11. That thereafter the said company made inquiries with Smt. Jyoti Sinha who had received the said envelope and it was discovered that she had handed over the said envelope to Mr. Sambhaji Gulab Puri the concerned accounts clerk for handing over the same to the Board of directors. However, Mr. Sambaji Gulab Puri, through mistake and oversight misplaced the said envelope and lost track of the same. 12. That thereafter the said company paid the copying charges and had received a copy of the impugned order on 2- 8-2011 from the office of the learned CIT(A)III Pune. 13. That the said company is now filing the appeal before the Hon. ITAT Pune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lan approved by the local authority i.e. Pune Municipal Corporation (in short PMC ). In the assessment year under consideration, assessee claimed deduction of ₹ 2,28,38,980/- u/s 80-IB(10) of the Act with respect to the profits derived from the aforesaid housing project, which has since been denied. 9. The Assessing Officer has noticed salient features of the project as follows. As per the Assessing Officer, the development and construction of the housing project commenced on 28-4-2004 on a plot admeasuring 78,406.2 sq. ft. and built-up area of residential units was 69226.2 sq. ft. and the built-up area of the shops and other commercial establishments contained in the project was 9180 sq.ft. On the basis of the aforesaid, as per the Assessing Officer, the built-up area of the shops and commercial establishments was 13.26% of the total built-up area. According to the Assessing Officer, the built-up area of the shops and commercial establishments included in the housing project was violative of the clause (d) to section 80-IB(10) of the Act. According to the Assessing Officer, the provisions of sec. 80-IB(10)(d) of the Act required that the built up area of the shops and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also pointed out that definition of expression built up area inserted in the Statute by way of section 80IB(14)(a) w.e.f. 1-4-2005 was explanatory in nature and therefore, it should apply to the assessment year under consideration also. 13. We have considered the rival submissions. It is a common ground between the parties that similar issue came up for determination before this Bench of the Tribunal in the case of Raviraj, Kothari Punjabi Associates in ITA No. 164, 1438/PN/2007 and 751 280/PN/2010 for A.Y. 2003-04 to 2006-07 vide order dated 23-11-2012 wherein, the issue was decided in favour of the assessee by observing as under: 7. On this aspect, we have carefully considered the rival submissions. Admittedly, the assessee has commenced development and construction of its housing project Citadel in terms of approval granted by the PMC which is the prescribed local authority within the meaning of sec. 80(IB)(10) of the Act. It is also not in dispute that the assessee commenced development and construction of the housing project as per the commencement certificate issued by the PMC dated 16-7- 2002. Pertinently, in para 2.3 of the order of the CIT(A), a ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court explained that since a local authority could approve the project to be a housing a project with or without commercial user, it was therefore, the intent of the legislature that deduction envisaged u/s 80-IB(10) of the Act was allowable to such housing projects approved by the local authority without or with commercial user to the extent permitted by the rules of local authority. Though, the assessment year before the Hon ble Bombay High Court was prior to 1-4-2005, it considered clause (d) of sec. 80-IB(10) of the Act as inserted by the Finance (No. 2) Act, 2004 and held the assessee eligible for deduction u/s 80-IB(10) of the Act. In the instant case before us, the parity of reasoning laid down by the Hon ble Bombay High Court in the case of Brahma Associates (supra) is wholly applicable. The project before us has been approved by the local authority i.e. PMC as a residential-cum-commercial project and therefore, it qualifies to be seen in the same manner as explained by the Hon ble Bombay High Court in the case of Brahma Associates (supra). Therefore, the aforesaid objection raised by the Revenue to dis-entitle the assessee from claiming of deduction u/s 80- IB(10) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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