TMI Blog2012 (9) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra Kumar Yadav, Judicial Member, and Shri G.S.Pannu, Accountant Member. Appellant by : Shri Manish Desai/Vipin Gujrathi Respondent by : Shri S.K.Singh ORDER PER SHAILENDRA KUMAR YADAV, JM: Both these appeals pertain to the same assessee for A.Y. 2006-07 and 2007-08 on similar issue. So they are being disposed off by a common order for the sake of convenience. ITA.No.229/PN/2010 for A.Y. 2006-07 The assessee has raised the following grounds: 1. The CIT(A) erred in upholding the disallowance of ₹ 3,42,86,458 by denying the deduction claimed by the appellant under section 80-IB(10) of the Act. 2. The CIT(A) ought to have held that the buildings in the project as approved on March 26, 2004 and forming part of the final approval, were completed within the time stipulated under section 80-IB(1) of the Act. 3. The CIT(A) failed to appreciate that Building G as found in the final approval was approved on 10th August 2006 was/could not have been contemplated when the project was first approved on March 6, 2004. 4. The CIT(A) failed to appreciate that though Building G (old) H was a part of the project as initially approved, the same d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008. It was also observed by the Assessing Officer that in statement assessee admitted that building H was submitted for sanction. Assessing Officer also pointed out that building G was part and parcel of Prakriti project which had common entrance, amenities, etc., and therefore, assessee s explanation given at the time of survey that claim u/s.80IB(10) was allowable for buildings A , B , C , D , E , F and I , since buildings G and H were not part of the project for deduction u/s.80IB(10) was not accepted. The Assessing Officer mainly observed that building G was part of the project Prakriti as it was included in the original sanction plan and building plan approval. Finally the Assessing Officer asked the assessee as to why section 80IB(10) should not be disallowed since completion certificate for buildings G and H were not issued within the stipulated time limit of 31.03.2008. The stand of the assessee has been that while first building plan was sanctioned for Prakriti project contained buildings A , B , C , D , E , F and G having commencement certificate dated 26.03.2004. This plan was redesigned with major modifications in buildings wherein A , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the paper book alongwith English translation of same on pages 26 27 of paper book filed on behalf of the assessee. Subsequent to this, assessee had other sanctioned plan dated 10.08.2006 vide commencement certificate No.CC/166006 having from left to right Type I, A , B , C , D , E G and H . Thus, Type I was placed in place of original G . Again there was some change in the building plan for these remaining 4 blocks I , E , F , G , and other commencement certificate was obtained on 31.03.2007 numbered as CC 48806 having from left to right Type I , A , B , C , D , E , F and G with certain modifications. Once more building plan was modified and sanctioned plan was obtained on 07.11.2007 vide commencement certificate CC/248107 having from left to right blocks mentioned as Type I, A , B , C , D , E , F and G and constructions were continued. However, only 3 blocks mentioned by Ld.Authorised Representative in his chart Annexure II wherein Type I, Type E and Type F were completed and completion certificate of the same was obtained on 07.12.2007 numbering BCO/6/OC/57. This shows that initially on left hand side assessee conceived Type G block which was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .80IB(10). 5. After going through the rival submissions and material on record, we find that the assessee in accordance with the provisions of the Bombay Provincial Municipal Corporations Act (hereinafter called as BPMC) applicable to Pune Municipal Corporation hereinafter called PMC, conceived the idea for erecting seven buildings on amalgamated plot bearing survey No.15/4, 15/3/1, 15/3/2, 15/2, 15/5 and 15/6 (hereinafter referred to as land ). He filed this proposal on 13.02.2004. Pursuant to this proposal, a commencement certificate bearing No.CC/2341/03 was issued to the assessee by PMC on 26.03.2004 for construction of seven buildings in accordance with the sanctioned lay out plan and the said seven buildings for the purpose of identification were marked on said plan from left to right as Type G, Type A, Type B, Type C, Type D, Type E, and Type F, as indicated in said plan. The said plan sanctioned for above 7 buildings underwent revision and revised plan was sanctioned on 22.02.2005 vide commencement certificate/building plan sanction CC/4347/04. In the said revised plan dated 22.02.2005, assessee conceived buildings A to H . Subsequent to this, assessee executed this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dated 20.03.2004 as shown as building No.2345 in Annexure A to this Order. Completion certificate dated 07.12.2007 placed at page 29 of the paper book was issued in respect of the balance 3 buildings shown in the sanctioned plan dated 07.12.2007 at Type I, Type E and Type F building (shown as building Nos.1, 6 and 7 in Annexure A), and assessee has claimed to recognise its receipts in the same manner. It is pertinent to mention here that building 8 subsequently marked as G was sanctioned for the first time on 10.08.2006 and was not completed till the relevant point of time and assessee has not claimed deduction u/s.80IB(10) in respect of the 8th building Type G which is claimed to be separate project itself. The assessee claims to have maintained separate books of account for 8th building named as Type G. As per the provisions of section 80IB(10) as it existed for A.Y. 2004-05 reads as under: 80IB(10) The amount of profits in case of an undertaking developing and building housing projects approved before the 31st day of March, 2005 by a local authority, shall be hundred per cent of the profits derived in any previous year relevant to any assessment year from such housing pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as above have been completed in two stages as mentioned above. So, the assessee is entitled for claiming deduction u/s.80IB(10) in respect of 7 types/blocks completed in two stages as discussed above. 5.5. In ACIT vs. Vandana Properties ITa.No.3633/PN/2009 and 4361/PN/2010 reported as (2010) 128 TTJ (Mumbai) UO 89, wherein the assessee having constructed wing E after obtained commencement certificate in 2002 and 2003 though similar certificate had been obtained for prior to 1998 in respect of A, B, C D Wing, wherein E was separate housing project and same having been completed before 31.03.2005, assessee was held entitled for deduction u/s. 80IB(10) in respect of wing A. From the above discussions it is clear that 8th building renamed as Type G should not be confused with originally conceived Type G in commencement certificate dated 26.03.2004 as clarified above. It is pertinent to mention here that originally assessee conceived Type G on left hand side subsequently it was relocated on right hand side as Type G but same should not be confused because the locations are different. Initially it was on the left hand side subsequently it was shifted to right hand side. Assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
