TMI Blog2012 (9) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... ws :- I. Original Ground Nos. 1 2 1. The learned Commissioner of Income-tax (A) failed to appreciate that the appellant had obtained completion certificate in respect of Buildings on which deduction u/s.80IB(10) was claimed though the condition of obtaining building completion certificate is not applicable to the Appellant s the project commenced prior to 1/4/2005 when the condition to obtain building completion certificate did not exist and hence, deduction u/s 80IB(10) cannot be denied to the Appellant. 1.1 Without prejudice to above, the learned CIT(A) failed to appreciate that as no deduction u/s 80IB(10) was claimed on Krishnakunj A. Wing, deduction u/s 80IB(10) cannot be denied on the entire project. 2. The Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t once the project is approved as housing project it amounts to approval as housing project. The explanation of the appellant was rejected by the AC and relying upon the decision in the case of M/s Laukik Developers Vs DCIT , Circle-3 Thane , proceeded to hold that the assessee having failed to fulfill one of the conditions of Section 801B(10) is not entitled for the same. The excerpts of the submission are like this : i. The appellant has constructed 3 buildings out of 23 buildings approved as Salasar Brijbhoomi . The said project has fulfilled all the requisite conditions. ii. The plan is approved on 24/06/02 and the commencement certificate is issued on 28/5/03. iii. The amendment which came in to effect from 1.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Vs. DCIT, Mumbai. ii. ITO vs. M/s. Ideal Realtors iii. M/s. Saroj Sales Corporation vs. DCIT, Mumbai. iv. Poonam Grih Nirman Vs. ACIT, Mumbai v. Bengal Ambuja Housing Ltd. vs. DCIT. 4. The CIT(A), while accepting the contentions of the assessee, denied the deduction on the ground that OC (occupation certificate) had not been received and since one of the main condition embedded in section 80IB(10)(a)(ii) had not been fulfilled, the deduction could not be allowed. Aggrieved the assessee is now before the ITAT. 5. Before us, the AR reiterated the submissions made before the revenue authority and submitted that the provisions for completion certificate was not there in the statute and since the project had been ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (supra) that the law as existed in the A.Y. 2004-05 when the assessee submitted its proposal for slum rehabilitation and the permission for carrying out the development was accorded on 17.11.2003 and when the assessee commenced development is to be applied. 6.1 The AR also relied on the decision of ACIT vs Sheth Developers in ITA No. 4497/Mum/2006, reported in 33 SOT 277 (Mum), wherein the coordinate bench at Mumbai ITAT held, Whether definition of built-up area in clause (A) of section 80-IB(14) introduced by Finance Act, 2004 has only prospective effect from 1-4-2005 Held, yes Whether, therefore, prior to 1-4-2005 balcony would not form part of built up area, irrespective of area of such balcony Held, yes- Whether adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by various coordinate Benches and concluded that the deduction u/s 80IB(10) cannot be denied by the revenue authorities. 7. The DR on the other hand, strongly supported the decision of the revenue authority and submitted that the entire business of development wrests on the OC and if OC, as per the submissions of the AR is not required, the whole provision of section 80IB(10) shall be rendered otios. 8. We have heard the rival submissions and have also perused the material on record. We find that the assessee had undertaken the development of a part of development project of 23 buildings at Mira Bhayender area. The assessee was to construct 3 buildings aggregating ₹ 1,00,930 sq. feet including 7947 sq. ft. of commercial ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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