TMI Blog2015 (11) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... see and is still undivided, we do not find any merit. The Hon'ble Madras High Court in the case of CIT Vs. Sanghvi and Doshi Enterprise (2012 (12) TMI 84 - MADRAS HIGH COURT) has held that ownership of land is not a criteria to decide status of developer to claim deduction u/s. 80IB(10). The provisions of section 80IB(10) does not require that the developer who owns the land is only eligible to claim deduction u/s. 80IB(10). Thus, in the facts of the case and the case laws discussed above, we are of the considered view that the authorities below have erred in coming to the conclusion that the housing project of the assessee at Damodar Residency is not eligible to claim deduction u/s. 80IB(10) of the Act. The appeals of the assessee are allowed in all the three impugned assessment years and the Assessing Officer is directed to grant deduction u/s. 80IB(10) to the assessee on the housing project at Damodar Residency. - Decided in favour of assessee. - ITA Nos. 583 & 2086/PN/2012, ITA No. 1920/PN/2013, ITA Nos. 707 & 2115/PN/2012 - - - Dated:- 30-9-2015 - SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM For The Assessee : Shri C.H. Naniwadekar For The Revenue : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm. The assessee was in complete control, ownership and domain of the aforesaid 3 buildings. The assessee claimed deduction u/s. 80IB(10) in respect of the buildings in Bhujbal Township in the assessment year 2007-08. However, the same was denied by the Assessing Officer on the ground that the plot of land on which the housing project is constructed is less than 1 acre i.e. less than the minimum area specified under the provisions of section 80IB(10) of the Act. The Commissioner of Income Tax (Appeals) vide order dated 22-02-2011 accepted the claim of the assessee and held that the assessee is eligible to claim deduction u/s. 80IB(10) on the housing project comprising in Bhujbal Township. Against the findings of Commissioner of Income Tax (Appeals), the Department carried appeal to the Tribunal in ITA No. 641/PN/2011 for the assessment year 2007-08. The Tribunal upheld the findings of Commissioner of Income Tax (Appeals) and dismissed the appeal of the Revenue vide order dated 25-02-2013. In the impugned assessment years i.e. assessment years 2008-09 and 2009-10, the assessee claimed deduction u/s. 80IB(10) in respect of housing project situated at Bhujbal Township. The Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive assessment years, the assessee filed appeals before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) vide impugned order allowed the claim of assessee with respect to the housing project at Bhujbal Township by placing reliance on the decision of the Tribunal in assessee s own case for assessment year 2007-08 decided on 25-02-2013. However, in respect to Damodar Residency the Commissioner of Income Tax (Appeals) upheld the findings of the Assessing Officer. Now, the assessee is in appeal against the findings of Commissioner of Income Tax (Appeals) in disallowing the claim of deduction u/s. 80IB(10) on the housing project Damodar Residency and the Revenue is against allowing deduction u/s. 80IB(10) on the housing project at Bhujbal Township . 3. Shri C.H. Naniwadekar appearing on behalf of the assessee submitted, that the authorities below have erred in coming to the conclusion that the total area of plot on which buildings A2, A3 and B1 have been constructed is less than 1 acre. The assessee has claimed deduction only in respect of residential buildings i.e. buildings A2 and A3 which are constructed on the plot measuring 4100 Sq. Mtrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of separate project and the size of plot. The assessee has not been able to show that the housing project developed by the assessee comply with the condition of minimum size of the plot i.e. 1 acre, as required u/s. 80IB(10) of the Act. The ld. DR strongly relied on the order of Commissioner of Income Tax (Appeals) as regards the findings on the project Damodar Residency and prayed for dismissing the appeals of the assessee. In so far as the appeals by the Revenue, the ld. DR relied on the order of Assessing Officer and prayed for reversing the findings of the Commissioner of Income Tax (Appeals) in respect of housing project of the assessee at Bhujbal Township . 5. We have heard the submissions made by the representatives of both the sides and have perused the orders of the authorities below. The assessee has developed two residential projects, one at Bhujbal Township in S. No. 67 at Kothrud wherein three residential buildings i.e. B2, B5 and B9 were developed by the assessee and the second residential project at Damodar Residency in S. No. 8, Kothrud, Pune. Bhujbal Township is developed on land measuring approximately 10 acres and Damodar Residency is developed on lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area statement in his order which does not require any interference. We accordingly, confirm the order of the Ld. CIT(A). 7. The Assessing Officer has denied the benefit of section 80IB(10) to the assessee on the residential project at Bhujbal Township only on the ground, that the Department has filed appeal against the order of Tribunal before the Hon'ble High Court. The ld. DR has not brought before us any order staying the order of the Tribunal or reversing the findings of the Tribunal by the Hon'ble Jurisdictional High Court. We respectfully follow the order of Co-ordinate Bench and dismiss the appeals of the Revenue. Thus, we hold that the housing project of the assessee at Bhujbal Township is eligible for deduction u/s. 80IB(10) of the Act. 8. In respect of housing project at Damodar Residency is concerned the deduction u/s. 80IB(10) has been denied primarily on two counts (i) the area of the housing project is less than 1 acre, and (ii) the land on which the housing project has been developed does not belong to the assessee. So far as the first objection of the Revenue is concerned it is an undisputed fact that the project Damodar Residency is being devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are existing on the said plot of land or not. In these circumstances, construing the provisions of Section 80IB (10) by adding words to the statute is wholly unwarranted and such a construction which defeats the object with which the Section was enacted must be rejected. 28. Apart from the above, the Central Board of Direct Taxes (CBDT) by its letter dated 4th May 2001 addressed to the Maharashtra Chamber of Housing Industry has stated thus: The undersigned is directed to refer to your letter No.MCHI:RSA:m:388/19799/3 dated 1st January 2001 and to state that the additional housing project on existing housing project site can qualify as infrastructure facility under Section 10(23G) and 80IB (10) provided it is taken up by a separate undertaking, having separate books of accounts, so as to ensure that correct profits can be ascertained for the purpose of Section 80IB and also to identify receipts and repayments of long term finances under the provisions of Section 10(23G), separately financing arrangements and also, if it separately fulfills all other statutory conditions listed in Sections 10(23G) and 80(B(10). With regard to your query regarding the definition of Housing P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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