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2020 (3) TMI 600 - AT - Income TaxDeduction u/s.80IB(10) - Not having completed the project during the eligible period - out of the total 60 flats since for these 12 flats, completion certificate was not received - Assessing Officer held that the initial permission being given to the 60 flats the assessee has, therefore, failed to complete the project within 4 years from the ends of the financial year in which the project was approved i.e.31.03.2009 - HELD THAT:- Assessee has accepted disallowance made by the Assessing Officer for assessment year 2009-10 and paid the entire demand and has not filed an appeal against that order. The Explanation of the provision clearly states that “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.” This signifies that in order to get deduction under the relevant provision, after completion of the project, completion certificate has to be obtained from the concerned authority i.e. Municipal Corporation etc. which cannot be done away with. This becomes the fundamental requirement of this provision since prior to receiving the completion certificate whatever work is done, it cannot be said that the project has been completed and there has to be some authoritative check and finding about the completion of the project which is thereafter fit for residing etc. Therefore, we do not find any infirmity with the findings of the Ld. CIT(Appeals) and the same is hereby upheld. Thus, grounds raised in appeal by the assessee are dismissed. Deduction u/s 80IB - requirement of Section 80IB(10)(b) of the Act which states “the project is on the size of the plot of land which has a minimum area of one acre” - contention of the Revenue that after deducting the D.P Road, the total area of the plot which remains is only 3994.25 sq.mts which is less than one acre - First Appellate Authority has opined that what CBDT circular directed is that the area limit of the plot has to be understood with reference to the area of the site and not with reference to the demarcation done by the Municipal Authorities - HELD THAT:- It is settled legal position that area of land has to be determined including the D.P Road also procured by the Municipal Corporation since the area or size of the land for the project is rightly to be understood considering all amenities which are to be provided to the assessee. Such D.P. Road acquired by the Municipal Corporation cannot be reduced from the total land area of the project. This is moreso in terms with principles of equity and fairplay since the local authority or the Municipal Corporation has to work under certain set of rules and regulations but those set of rules and regulations should not restrict the right of the assessee. The project size has to be looked into in totality with all amenities which is already there even before such D.P. Road is acquired by the Municipal Authority. Therefore, such D.P. Road cannot be alienated or separated from main portion of the land and the area of the plot should be inclusive of the land acquired by the Municipal Corporation as D.P Road. Therefore, we do not find any infirmity with the findings of the Ld. CIT(Appeals) and relief provided to the assessee on this issue is hereby sustained.
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