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TMI Blog2012 (9) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 did not find any place in the final approval. 5. The CIT(A) ought to have held that since the housing project under consideration was first approved on 26.03.2004 it should be governed by the provisions as applicable to assessment year 2004-05. Subsequent conditions as introduced by Finance (No.2) Act, 2004 which are not possible of compliance should not be the basis for denying the appellant's claim for deduction under section 80IB(10) of the Act. 6. The CIT(A) ought to have held that assuming without admitting that the condition in section 80IB(10)(ii) has not been fulfilled, the appellant should be allowed deduction under section 80-IB(10) of the Act in respect of the profits derived from the buildings which were completed within the stipulated time. 7. The CIT(A) erred in upholding the levy of interest under section 234A, 234B, 234C and 234D of the Act. 2. Brief facts of the case are that assessee is an individual engaged in the business of development and construction of housing projects. The Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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', 'B', 'C' and 'D', and buildings 'E', 'F', 'G' and 'H' were relocated with sanctioned housing project and were sanctioned as multi-storeyed buildings. This plan was sanctioned on 22.02.2005 placed at page No.5 of paper book alongwith English translation on page Nos. 6 to 8 of paper book filed on behalf of the assessee. Out of these buildings, 'A', 'B', 'C', 'D', 'E' and 'F' were taken up first for construction activity. The additional plan for building 'I' was sanctioned on 10.08.2006. It was also stated that relocated building 'G' was approved for first time on 31.03.2007 which was yet to be completed. Building 'H' was deleted from the project as per sanctioned plan as on 30.03.2007 and is shown as to be demolished. After explaining the above, assessee requested the Assessing Officer to allow deduction u/s.80IB(10) considering the completion certificates received for buildings 'A', 'B', 'C' and 'D' vide completion certificate dated 14.03.2006, and completion certificates for buildings 'E' and 'F' dated 07.11.2007. The As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate 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 shifted on right hand side vide sanctioned plan dated 22.02.2005 and assessee tried to raise Type G in place of H but same was planned to be demolished as mentioned in building plan dated 22.02.2005 vide commencement certificate CC/4347/04 wherein it is clearly mentioned that Type H be demolished. It is pertinent to mention here that Type H was conceived to be raised in the area where initially Type G was planned. Type G was shifted on to right hand side. This right hand side Type G building was not completed at relevant point of time. However, seven buildings initially conceived were completed one in group of four vide completion certificate BCO 146264 dated 14.03.2006 and they were Type A, Type B, Type C, Type D, and subsequently vide completion certificate No.71207 vide completion certificate No.BCO/6/OC/57 assessee completed buildings I, E & F which is not in dispute. At the stage of second completion dated 07.12.2007, the Type G building was shifted to right side has been confused with conceived Type G building by Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 plan and Buildings Type A, Type B, Type C, Type D, were completed for which completion certificate no.BCO/14/4264 was issued on 14.03.2006 which is not in dispute. Meanwhile on 31.12.2005 concern, Planning authority was pleased to approve RP roads of Village Balewadi and as an effect of which 24 mt. wide RP Road was deleted and land which was originally reserved for 24 mt. wide RP Road stood dereserved. The said Development Plan was eventually sanctioned by Government of Maharashtra vide Notification which is attached herewith as Annexure 4, which reads as follows: GOVERNMENT OF MAHARASHTRA Urban Development Department, Mantralaya, Mumbai - 400032. Date: 18.09.2008 NOTICE No.TPS-1807/39/CR-1017(A)/07/UD-13 The Government in Urban Development Department's Notice No.TPS-1807/39/CR-1017(A)/07/UD-13 dated 13.08.2008 regarding the modifications of substantial nature as Excluded Parts in the Draft Development Plan, Pune (Additional Area) (Baner-Balewadi, Sector-I) for inviting suggestions/objections is hereby withdrawn. The revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, shall be hundred per cent of the profits derived in any previous year relevant to any assessment year from such housing project if,- (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998; (b) the project is on the size of a plot of land which has a minimum area of one acre; and (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place." 5.3. In the above provision, there was no stipulation to the period of completion. Undisputedly the assessee has commenced the construction on or after 1st October, 1998 but before 31st March, 2005. In fact, the assessee has commenced his project on 26.03.2005 vide commencement certificate CC 2341/03. Area of land is not in dispute because it is more than 1 acre. The maximum area of a residential unit is 1500 sq.ft. in Pune. These issues are not in dispute before us. The housing project of the assessee as envisaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations are different. Initially it was on the left hand side subsequently it was shifted to right hand side. Assessee has completed construction of 'A', 'B', 'C' and 'D' buildings vide completion certificate No.BCO/14/6/264 dated 14.03.2006 while remaining 'E', 'F' and 'I' were completed vide completion certificate No.BCO/6/OC/57 dated 07.12.2007. Issue of relocated Type 'G' is not before us. In these circumstances, assessee is eligible for deduction u/s.80IB(10) in respect of building Types A, B, C, D, E, F and I, completed in two stages as discussed above. The Assessing Officer is directed accordingly. ITA.No.1149/PN/2010 - A.Y. 2007-08 6. The assessee has raised the following grounds: 1. On the facts and in the circumstances and in law the honourable Commissioner of Income-tax(Appeals)-II, Pune erred in confirming the disallowance of deduction of Rs. 2,02,47,344/- claimed under section 80IB(10) of the Income Tax Act 1961 without appreciating the facts of the case in proper perspective. The appellant hereby prays that the deduction under section 80IB(10) claimed by the appellant may please be granted. 2. Without prejudice to the first ground of appeal that the appellant is en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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