TMI Blog2012 (4) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... YADAV, J.M. AND SHRI G.S. PANNU, A.M. Appellant by: Ms Ann Kapthuama Respondent by: Shri Sunil Pathak And Shri Nikhil Pathak ORDER PER SHAILENDRA KUMAR YADAV, JM This appeal has been filed by the department against the order of the CIT(A)-II Pune dated 31st May 2010 on the point of deletion of addition of ₹ 32,30,904/- made by the Assessing Officer by way of disallowing the assessee s claim of deduction u/s 80- IB(10) of the Act. 2. The assessee is a firm engaged in business of builder and developer. The Assessing Officer stated that for the project at S.No. 101/2, Paud Road, Kothrud, Pune, the layout was first sanctioned by the Town Planning and Valuation Department on 3-6-1995 for 16 buildings. Subsequently, individual building plans had got sanctioned and building nos. A1, A2 and A3, B3, B4, B5 and B6, C1, C2 and C3 were constructed. Further, on 8-1-2001 the layout was revised and got sanctioned by PMC. Therefore, the Assessing Officer came to a conclusion that the assessee s project had commenced on 3-6-1995 when the layout plan was first sanctioned. The stand of the assessee has been that the development rights for the particular plot of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se area has been claimed to be 52245 sq.ft. as evident from the plan placed at page 16 of the paper book wherein boundaries of said plots are clearly mentioned. In pursuance of the development agreement dated 8-10- 2004 the commencement certificate for construction on part of the S.No. 11/2 Paud Road, Kothrud, took place. This commencement was in the light of sanctioned building plan dated 8-10-2004 placed at page 29 and 30 of the paper book. It means that the commencement took place on 8-10-2004 i.e. after 1998. The learned AR submitted that this issue is covered in favour of the assessee by the decision of coordinate Bench of this Tribunal in the case of Dy. CIT M/s. Aditya Developers in ITA No. 791 and 792/PN/2008 for A.Y. 2003-04 and 2004-05 dated 30- 1-2012 wherein the Tribunal has observed as under: The submission of the Ld. D.R. remained that the decision of Pune Bench in the case of Nirmiti Construction Vs. DCIT (Supra) followed by the Ld CIT(A), having different facts is not applicable in the case of the assessee. Having gone through that decision, we do not agree with the above contention of the Ld. D.R. The decision fully covers the case of the assessee on the issue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee . In that case, the assessee had plan for 4 independent buildings A , B , C D but, so far as E is concerned only planned when the status of the surplus land was converted as within ceiling limit and the assessee could get additional FSI for launching Wing E . Wing E was planned and construction was commenced after 1st October 1998 and building/Wing E was an independent housing project as contemplated u/s. 80 IB (10). The Tribunal held that the concept of housing project does not mean that should be the group of the buildings and only then same is called a housing project . It was further held that building/wing E cannot be passed with earlier buildings i.e. A, B,C D which work was commenced in the year 1993 whereas plan for wing E was approved for only once in the year 2002. It was held further that the conclusion drawn by the authorities below that the commencement of wing E is a continuation of the existing project is erroneous. 6.2. In the case of Saroj Sales Organization Vs. ITO (Supra), the Mumbai Bench has again expressed the same view and held that the commencement certificates in respect of these wings in block N were separately r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposed buildings ( except wings I, M, N, O, P and K in the present form) lay out plan was approved by the PMC on 25.5.1990 ( Page 94 of the paper book). The proposed building lay out plan was revised on 31.3.2001 (Page No. 5 of the paper book). The total area of land was 28905 sq. mtrs. The assessee had firstly completed development and construction of buildings A,B, C,D,E,F,G,H J in the area of 17,392 sq. mtrs of project KKN, leaving the land area of 8966 sq.mtrs vacant. In that vacant land, the assessee started the construction of buildings in wings K, M, N, I, O, P, K1 and K2 in the project KKT . In this project, 188 residential units were there each having built up area upto 1500 sq.ft. The building plans of the project KKT were approved on 9.3.2001 (wings K1 and K2) and 29.3.2001(wings I, M,N,O, P) which were completed on 10.10.2002 and 10.2.2003 respectively. Copy of building plan approved on 9.3.2001 has been made available at page No. 104 of the paper book, whereas the building plan approved on 29.3.2001 has been made available at page No. 103 of the paper book. There is no dispute on the dates of completion of the buildings in the housing project. The CBDT in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re given separately by the Municipal Corporation from the earlier project KKN. The grounds are thus rejected. Further, it was submitted that completion took place on 30-7- 2008. So the order of the CIT(A) should be upheld. 6. After going through the rival submissions and the material on record, we find that it is undisputed that the original key plan was submitted on 1-10-1998. The said project was sanctioned in the name of Smt Sunita Mahadkar with regards to whole of land in question and the said key plan was revised on 8-1-2001. Subsequent to this, the assessee entered into development rights with regards to the project in question and the said development right of the land itself was acquired by the assessee on 2-8-2004. Plot of this development right was part of key plan submitted on 1-10-998 as mentioned above. Subsequently, the building plan/commencement certificate was granted by the PMC on 8- 10-2004. The date of 8-1-2001 was merely the date when Mrs. Sunita Mahadkar, the original owner of the land had got her revised its layout plan after the said area was included within the PMC limits. As the assessee had got the building plan approved on 8-10-2004 as discussed ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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