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2018 (9) TMI 1905 - AT - Income TaxDeduction u/s 80IB(10) - project where plot was divided into two parts due to 30 meters reservation on DP road and 30 meters reservation for HCMTR - CIT-A allowed the claim - HELD THAT:- As decided in own case the total area of plot was 6900 sq.mtrs. and after reducing 300 sq.mtrs. for project road, remaining area was 6600 sq.mtrs. The first approval of PMC authorities was given on 28.04.2005 and in the said approval, area of land was shown at 6600 sq.mtrs. 30 mtrs. wide DP road as well as 30 mtrs for HCMTR reservation was there in between the plot and because of which the plot was divided into two parts i.e. Plot No.I and Plot No.II in the area statement. The Tribunal held that the issue regarding two plots had arisen because of the mistake of Architect where the plot was only one, but only for the sake of convenience, numbering was shown as plot No.I and plot No.II by the Architect - reservation on account of DP road as well as HCMTR would not alter the fact that the said plot was one plot and mere division on account of reservation would not change the character of existing plot. The conditions stipulated in section 80IB(10) of the Act, of the project being one acre of plot, was held to be fulfilled and hence, the assessee was held entitled to claim of deduction under section 80IB(10) of the Act. Following the same parity of reasoning, we hold that the assessee for the year under consideration is also entitled to claim the aforesaid deduction under section 80IB(10) of the Act. Project had commenced on 28.04.2005 as per first approved plan and the said project has been completed within stipulated time allowed under section 80IB(10) of the Act i.e. by 31.03.2011, for which necessary evidence has been filed on record. Consequently, the assessee is entitled to claim the deduction under section 80IB(10) of the Act. Thus, grounds of appeal raised by the Revenue are dismissed. Prorata deduction u/s 80IB - Violation to the provisions of section 80IB(10)(f) of the Act had made multiple allotments of the flats to family members - HELD THAT:- CIT(A) was of the view that two units allotted to spouses of individual being A8-302 and A2-103 had violated the conditions of section 80IB(10)(f) of the Act. He relied on the ratio laid down by the Hon’ble High Court of Madras in CIT Vs. Arun Excello Foundation Pvt. Ltd. (2012 (12) TMI 415 - MADRAS HIGH COURT ) and Vishwas Promoters Pvt. Ltd. Vs. ACIT [2012 (11) TMI 1117 - MADRAS HIGH COURT] and was of the view that the assessee was entitled to claim prorata deduction on the profits of balance project excluding two flats which were allotted to spouses of individuals. We are in conformity with the findings of CIT(A), where the violation of clause (f) of section 80IB(10) of the Act has been made by the assessee, then in respect of profits on flats allotted to spouses of individuals is to be excluded and is not entitled to the claim of deduction under section 80IB(10) of the Act. The CIT(A) has already directed the Assessing Officer to verify the correctness of profits worked out by the assessee on sale of above said flats and consequently, upholding the said directions, we dismiss the grounds of appeal raised by the Revenue. Claim of deduction u/s 80IB(10) though on prorata basis - completion certificate had not been received from the State Authorities - HELD THAT:- In the present case, no completion certificate has been received by the applicant till date. The learned Authorized Representative for the assessee pointed out that certificate of Architect that construction of Club house was completed on 29.03.2011, was filed before the CIT(A). Merely because the completion certificate had not been received from the State Authorities would not disentitle the assessee to the aforesaid claim of deduction under section 80IB(10) of the Act though on prorata basis. We find merit in the plea of assessee, wherein it had completed the construction of Club house within stipulated period and had also applied for completion certificate on the basis of certificate issued by the Architect that construction of Club house was completed on 29.03.2011. It is not case of the Department that assessee had not applied for completion certificate. However, merely because the completion certificate has not been issued by the State Authorities would not disentitle the assessee to its claim of deduction under section 80IB(10) of the Act on prorata basis. Accordingly, we hold so and direct the Assessing Officer to allow the said claim in the hands of assessee.
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