New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (2) TMI 884 - ITAT PUNE

2016 (2) TMI 884 - ITAT PUNE - TMI - Eligibility of benefit of deduction u/s.80IB(10) - case of the Revenue that since the assessee has not completed the B2 project, therefore, the assessee is not entitled to deduction u/s.80IB(10)- Held that:- We find the assessee in the instant case has constructed the housing project namely “Kumar Paradise” at Hadapsar, Pune on Plot No.2 Survey No.134/1/1A/1. The said plot is divided into 3 parts, Part A, Part B and Part C. The first layout of the plan of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

imilarly, Building A2 which was commenced vide commencement certificate dated 18-05-2004 consisting of 108 units was completed on 06-11-2007. The project B comprising of 10, 394.66 sq.mtrs of Part B and 1606.02 sq.mtrs of Part C. The Building B1 commenced construction vide commencement certificate dated 28-06-2006 and the same comprised of 44 residential units and the said building B1 was completed on 18-03-2008. The other building B2 was commenced vide commencement certificate dated 28-06-2006. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r the other 2 buildings, i.e. B3 and B4 on Part C of the plot another commencement certificate was obtained and building plan was sanctioned as there was no adequate FSI for building B2 itself.

It is the case of the assessee that it has completed A1, A2 and B1 of the project and because of inadequate FSI the assessee did not complete B2 building as it was not economically viable. Therefore, on stand alone basis itself, it is entitled to deduction u/s.80IB(10) in respect of whatever po .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing B1 is having built up area of more than 1 acre. The built up area of all the residential units are less than 1,500 sq.ft. and there is no commercial construction and the building independently on standalone basis satisfies all the conditions u/s.80IB(10). It has been held by various decisions that deduction u/s.80IB(10) of the Income Tax Act, 1961 is to be allowed on standalone basis on satisfaction of the conditions prescribed under the said section. - Decided in favour of assessee - ITA No .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

posed of by this common order. 2. Facts of the case, in brief, are that the assessee is a partnership firm engaged in the business of Real Estate Development, Construction and sale of residential flats. It filed its return of income for the impugned assessment year on 24-10-2009 declaring total income of ₹ 86,729/- after claiming deduction of ₹ 2,82,73,541/- u/s.80IB(10) of the Act. During the course of assessment proceedings the AO noticed that the assessee has continued the constru .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n 31-03-2008 the housing project was not complete. The AO, therefore, issued a show cause notice asking the assessee to explain as to why the deduction claimed u/s.80IB(10) should not be disallowed since the housing project was not complete within the stipulated period. 2.1 The assessee vide letter dated 24-10-2011 inter alia submitted as under which has been reproduced by the AO at page 5 of his order: "As regards B 2 building, said building is not completed. However, without considering B .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

portion justifies the conditions prescribed under the Act, it would still be eligible for 80IB(10) deduction. In the light of above decision assessee is eligible for deduction u/s 80IB(10) .. " 3. However, the AO was not satisfied with the explanation given by the assessee. According to him the request of the assessee for considering deduction on proportionate basis cannot be accepted. He observed that the Pune Special Bench of the Tribunal in the case of Brahma Associates and others report .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is more than 10% of the plot are, the Tribunal has allowed section 80IB(10) deduct ion in respect of 15 residential building on the ground that the profits from these exclusively residential buildings could be determined on stand alone basis. In our opinion that would not be proper, because, section 80IB(10) allows deduction to the entire project approved by the local authority and not to a part of the project. If the conditions set out in section 80IB(1) are satisfied, then deduction is allowa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ides that the date of completion of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority. In view of the above, the AO held that assessee has not fulfilled the conditions laid down in sub-clause (a) of section 80IB(10) of the Act. According to him, what is required to be completed by the assessee is the housing project in totality and not the individual flats as claimed by the assessee. In view o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2 was obtained on 08-01-204 and 18-05-2004. The sanctioned plan for Part B consisting of Buildings B1 and B2 was separately obtained on 28-06-2006. Thus, the complete venture of the assessee was divided into construction of A1 and A2 of Part A and construction of B1 and B2 of Part B. The following statistics was also submitted before the CIT(A) : Sr.No. Kumar Paradise Plot No.2 Hadapsar Part A Part B 1 Area of Land 8,553 Sq.mtr 2.11 Acre 10,394.66 Sq.mtr 2.57 Acre 2 Buildings proposed A1 and A2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

il Nil ** Other Buildings on Part B are sanctioned as parking area for want of Floor Space Index) (FSI) for construction purposes. 6. It was submitted that the assessee had completed construction of Part A with 216 residential units and Part B with 44 residential units on or before 31-03-2008. The assessee filed the return of income for the impugned assessment year claiming deduction of ₹ 2,82,73,541/- u/s.80IB(10) of the Act on the profits derived for sale of residential units in Building .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

isions it was argued that assessee is entitled for deduction u/s.80IB(10) as claimed. 7. Based on the arguments advanced by the assessee the Ld.CIT(A) allowed the claim of deduction made by the assessee u/s.80IB(10) by observing as under : 3.2 The appellant has raised five grounds of appeal. In the first three grounds raised by the appellant the disallowance of deduction claimed by the appellant u/s.80IB(10) of ₹ 2,82,73,541/- has been contested. During the assessment proceedings, the Asse .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for short) were on 6-1-2006 for 108 units, 54 in A-1 wing and A & B having 54 units each; 6-11-2007 for another 108 units in A-2, A&B wing; on 18-3- 2007 for 44 units in B-1 wing. The Assessing Officer also noticed that the project continued even after 31-3-2008 i.e. the date on which the project should have been completed as per the provisions of see 80IB(10), as the previously revised and sanctioned plan dated 28-06-2006 was again revised on 22-06-2010 sanctioning further 276 tenements .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

appellant submitted that the appellant commenced development and construction of a housing project 'Kumar Paradise' at Hadapsar Pune on 8-1-2004 though the DP layout plan was sanctioned on 21-10-2003. The appellant further stated that said plot is divided into two parts i.e Part A and Part B which becomes evident from the sanctioned plan and the sanctioned plan for Part A comprised of two buildings A 1 and A2 and the sanctioned plan for Part B consisting of B1 and B2 buildings was obtain .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ts) - 6 November 2007 vide certificate No.01391 (copy enclosed at Page 24 of 24) B1 (44 units) - 18March 2008 vide certificate No.01924 (copy enclosed at Page 25 to 25) 5 Size of residential units Less than 1,500 sq.ft. Less than 1,500 sq.ft. 6 Commercial area Nil Nil The appellant has contended that the construction of Part A with 216 residential units and 44 residential units of Part B was completed before 31-3-2008. The appellant has further stated that Part B is a separate housing project co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e observation of the Assessing Officer that the sanction plan dated 28-06-2006 was revised on 22-6-2010 for 276 tenements and the project not completed before 31-3-2008 is not correct as the 276 tenements were sanctioned vide sanction plan dated 28-6-2006 and there was no revision/additional sanction granted. The appellant has filed the copies of the sanctioned plans of 2006 and 2010 during the appellate proceedings to support its claim. The appellant has thus contended that Building B1 on a sta .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Bang) 269 7. Saroj Sales organization Vs ITO (2008) 115 TT J 485 (Mumbai) 3.4 The appellant has also distinguished the decision of the Bombay High Court in the case of Bramha Associates (2011) 333 ITR 289 (Bom) relied upon by the Assessing Officer. It has been submitted that the assessee in that case had undertaken project comprising of 15 residential and 2 commercial buildings sanctioned by the local authority as 'residential-cum-commercial project'. Thus the issues involved before the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

itted under the DC Rules by the local authority. Accordingly the Court concluded that even if the project consists of commercial area more than 10% of the built up area, such project will be eligible in entirety for claim of deduction u/s 80IB(10) of the Act. The appellant has also stated that the Hon. High Court did not upheld the standalone principle of the Special Bench considering that it had concluded that the project as such in entirety even if sanctioned as residential cum commercial will .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

held that the judgment must be read as a whole and the observation of the judgment have to be considered in the light of the questions involved in the case in which it is rendered. The appellant has contended that the contention of fallowing proportionate deduction u/s 80IB(10) still stands merit as the judicial precedents and authorities relied upon supports the claim. The appellant has also placed reliance on the decision of the Mumbai ITAT in the case of Ekta Housing Pvt. Ltd, ITA No 3649/Mu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tenements for the people and such tax incentive provided u/s 80IB (10) should not be denied and the said proposition is supported by judicial precedents wherein it has been held that incentive provisions should be interpreted liberally so as to advance the object sought to be achieved and not frustrate it. The appellant has placed reliance on the following decisions in support: 1. Bajaj Tempo Ltd Vs CIT 196 ITR 188 (SC) 2. CIT Vs Gwalior Rayon Silk Manufacturing Co Ltd 196 ITR 129 (SC) The appe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

; A2 and building B-1 3. Part A and Part B is also physically divided by the Development Plan (DP) Road. The appellant has emphasized that during A.Y. 2007-08 it was submitted before the Assessing Officer that Part A and Part B are separate housing projects and the same was accepted by the Assessing Officer who had accordingly allowed the claim of deduction u/s.80IB(10) on the profit derived from sale of units in Buildings A 1 & A2. The appellant has contended that the Assessing Officer has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

udice contention has stated that even if buildings A-1, A-2 and B-1 are treated as part of one housing project it qualifies for deduction u/s 80IB(10) in view of the substantive principle as all the buildings satisfies the condition of completion of the project on or before 31-3-2008. The appellant has placed reliance on the following decisions in support of the claim: 1. Runwal Multihousing Pvt. Ltd Vs ACIT, ITA No 1015,1016 & 1017/PN/2011 2. Ramsukh Properties Vs DCIT (2012) 138 ITD 278 (P .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, Part B and Part C. The first layout plan of the entire scheme was sanctioned by the local authority i.e. PMC on 21-10- 2003. The appellant proposed two separate projects A and B on the aforesaid plot No.2. The project A of the plot comprised of buildings A 1 and A2 and project B on Part B & C of the plot comprised of buildings B1, B2, B3 and B4. The total area of the project A is 8853 sq.mtrs. The appellant started the construction of the building A 1 vide commencement certificate dated 8- .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rt C. The building B1 commenced construction vide commencement certificate dated 28- 06-2006 and the same comprised of 44 residential units and the said building B2 was completed on 18-3-2008. The other building B2 was commenced vide commencement certificate dated 28-6-2006, however, the same was not completed as there was not adequate FSI to complete the entire building as the same was sanctioned with only 16 units with an FSI of 677.64 sq.mtr with two floors to be feasible as the area of one f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a separate commencement certificate. The other two buildings B3 and B4 (on part C of the plot) no commencement certificate and building plan was sanctioned as there was no adequate FSI for the building B2 itself and therefore, in the building sanction plan dated 28-6-2006 the two buildings have been shown as parking area. The Assessing Officer on the other hand has noted that the housing project which commenced on 21.10.2003 ought to have been completed on or before 31-3-2008 and in the fact of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(Supra). Thus the Assessing Officer is seen to have concluded that the project undertaken by the appellant commenced on 21-10- 2003 which is factually not correct as the local authority had sanctioned the layout plan of the entire project on that date and not the commencement of the entire project. The construction of the project commences with the issuance of commencement certificate and sanction plan of the buildings by the local authority and hence not by the sanction of the layout plan of th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

0). Thus the Assessing Officer's contention that Part A and B are one and the same project is not correct in the given set of facts of the case. 3.6 The reliance placed by the appellant on the decision of the Pune ITAT in the case of Rahul Construction Co. (cited supra) is relevant and which has held as under: "9. There is no dispute on from material facts that out of 16 buildings in the housing project of the assessee only 11 buildings were completed within the prescribed time-limit up .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the deduction provided under section 80-IB(10), the date on which building plan of a housing project has been firstly approved by the local authority will be treated as approval in respect of the housing project. When Explanation (ii) is read with Explanation (i), it makes clear that the date of completion of construction of such housing project would be taken when completion certificate has been issued by the local authority. In other words, in clause (i) of the Explanation, it has been made .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

an are two different concepts. Thus Part A of the project comprising of building A 1 and A2 is a separate project and which satisfies all the conditions stipulated u/s 80IB(10) and hence the appellant is very much entitled to claim the deduction u/s 80IB(10) of the Act on Part A of the buildings A 1 and A2. 3.7 So far as the Part B of the project is concerned, the sanction plan of buildings B1 and B2 were separately obtained on 28-06-2006. The appellant has completed the construction of the buil .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t. The Assessing Officer, has however, held that due to non-completion of building B2 the entire benefit of the project of sec.80IB(10) in respect of profits derived from building B1 has been denied. Thus as evident the appellant was prevented by a reasonable cause which was completely impossible on the part of the assessee. In this regard the decision of the Pune ITAT in the case of Ramsukh properties Vs DCIT (Supra) also relied upon by the appellant becomes relevant and which held as under: 5. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and of project, etc. Assessee's housing project was approved vide commencement certificate No.3837/04 dated 13.01.2005 out of which completion certificate was obtained and furnished before the Assessing Officer for 173 out of 205 flats. Same was rejected by the Assessing Officer and confirmed by the CIT(A). The request for granting whole deduction in respect of whole project has rightly been rejected because deduction u/s.80IB(10) could not be granted to assessee on incomplete construction a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e of some of the residential units exceeded prescribed limit as laid down uls.80IB(10) of the Act. Above mentioned decisions are applicable in their own sphere, i.e. on point of excess area of some of the flats which hold good in its own sphere. However, in case before us, deduction uls.80IB(10) of the Act has been rejected on the ground that condition of completion of project before the due date i.e., 31.03.2008 as laid down uls.80IB(10)(c) of the Act, has not been complied by assessee which is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Such liberal interpretation should be used in favour of assessee when he is incapacitated in completing project in time for the reasons beyond his control. In case before us, as stated on behalf of assessee, that assessee submitted certain modifications/ rectifications for top floors of building. The said modification/ rectification could not be completed as local authority could not approve the modification as their files have been taken over by concern intelligence department for investigatio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ection 80IB(10) of the Act suggests about only completion of construction and no adjective should be used along with the word completion. This strict interpretation should be given in normal circumstances. However, in case before us, assessee was prevented by reasonable cause to complete construction in time due to intervention of CID action on account of violation of provisions of Urban Land Ceiling Act applicable to land in question. Assessee was incapacitated to com lete the same in time due .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the same. The provisions of taxing statute should be construed harmoniously with the object of statute to effectuate the legislative intention. In view of the above facts and circumstances, we hold that assessee is entitled for benefit u/s 80IB(10) of the Act in respect of 173 flats completed before prescribed limit. The Assessing Officer is directed accordingly. " 3.8 The building B1 has been contended by the appellant to have satisfied all the conditions u/s 80IB(10) i.e. commenced on 28 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing the conditions under the provisions of section 80IB(10) of the Act, even if constructed on an existing plot will be entitled for claim of deduction. 3.8.1 While deciding the case of Apoorva Properties & Estates Pvt. Ltd. along with other cases the jurisdictional High Court held it to be covered against the revenue by its own decision in CIT Vs Brahma Associates - ITA No. 1194 of 2010 whereby the decision of the ITAT regarding considering Phase-lion a standalone basis as it satisfies all .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

defined. Therefore, the expression housing project in Section 80IB(10) would have to be construed as commonly understood. 19. . . . . . . . . . . . . . . . . . . . . . the expression 'housing project' in common parlance would mean constructing a building or group of buildings consisting of several residential units. In fact, the Explanation in Section 80IB(10) supports the contention of the assessee that the approval granted to a building plan constitutes approval granted to a housing pr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s only in the year 2001 when the status of the land was converted from surplus vacant land into within the ceiling limit land by the State Government, an additional building could be constructed on the plot in question and accordingly building plan for construction of 'E' building was submitted and the same was approved by the local authority on 11th October 2002. 21. The fact that the local authority, namely the Municipal Corporation approved the building plan for 'E' building o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2002. Nowhere in the Intimation for Disapproval granted for construction of 'E' building on 11th October 2002, it is stated that building 'E' constitutes extension of the earlier housing project which is already completed. The fact that the objections raised while approving the earlier housing project on the same plot of land were made applicable to the housing project in question, it cannot be inferred that the housing project in question constitutes extension of the earlier hou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

constitutes extension of the housing project which was approved in the year 1993. 22. Reliance placed by the Revenue on the Explanation to Section 80IB (10)(a) which was introduced with effect from 1st April 2005 is also misplaced. What the said Explanation contemplates is that where the approval in respect of a housing project is granted more than once, then, that housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

housing project more than once and the said Explanation would not apply where the approval is granted to different housing projects. In the present case, as noted earlier, construction of 'E' building constitutes an independent housing project and, therefore, the date on which the earlier housing project had commenced construction could not be applied to the housing project consisting of 'E' building merely because the conditions set out while granting approval to the earlier ho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

project that construction of even one building with several residential units of size not excluding 1000 "sq. ft. would constitute a housing project u/s 80IB." The Hon ble Bombay High Court while arriving at the conclusion has also relied on the CBDT Notification referred to above. Thus the building 'B1' of part B of the project on a standalone basis satisfies all the conditions stipulated u/s.80IB(10) and hence eligible for the claim of deduction under the said section. 3.9 Th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sis. The appellant has placed reliance on a number of judicial decisions in this regard. On this aspect, I find that the Mumbai Bench of the Tribunal in the case of M/s. Ekta Housing Pvt. Ltd. (Supra) has upheld the plea of the assessee for a proportionate deduction u/s. 80IB(10) of the Act where some of the residential units in the project violated the condition contained in Sec. 80IB(10)(c) of the Act. The Mumbai Bench after noticing the precedents in the case of - i) ITO vs Air Developers, 25 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion u/s. 80IB(10) of the Act with regard to the profits earned on the eligible units .. Particularly, the Tribunal also considered the decision of the Hon'ble Bombay High Court in the case of Brahma Associates (Supra) and held that the same does not envisage denial of proportionate deduction in such circumstances. The relevant discussion, as contained in paragraphs 8 & 9 of the order of the Tribunal in the case of M/s Ekta Housing Pvt. Ltd. reads as under: "viii) We now examine the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and, hence the judgment cannot be said to be on this issue. The only issue before the High Court is when there is a commercial element in a residential project, will be assessee be denied the entire exemption. In this case, the Hon'ble High Court has observed that when the local authority approved a plan as a housing project or a residential cum commercial project, the assessee would be entitled to claim for deduction under section 80IB(10) even if the project had commercial element in exces .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in the absence of any restriction imposed under the Act, it was not open to the Tribunal to hold that the projects approved by the local authorities having residential buildings with commercial user upto 10% of the plot area would alone be entitled to deduction under section 80IB(10). As noted earlier, restriction regarding commercial user has been imposed for the first time by introducing clause (d) to section 80IB(10) with effect from 1.4.2005. Therefore, it was not open to the Tribunal to hol .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

0) allows deduction to the entire project approved by the local authority and not to a part of the project. If the conditions set out in section 80IB(10) are satisfied, then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to a part of the project. In the present case, the commercial user is allowed in accordance with the DC Rules and hence the assessee was entitled to section 80IB(10) deduction on the entire project appr .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion only in respect of the profits derived from 15 residential buildings." 3.9.1 Similarly, in the case of DCIT Vs. Brigade Enterprises (P) Ltd. (cited supra) the Tribunal held - Where some of the residential units in a bigger housing project, treated independently, are eligible for relief under s. 80IB (10), relief should be given pro-rata and should not be denied by treating the bigger Project as a single unit, more so, when assessee obtained all sanctions, permissions and certificates f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

al as a starting point, he has to verify as to whether these buildings were completed within the prescribed time-limit, i.e., 31-3- 2008 on the basis of the completion certificate in respect of such housing project issued by the PMC. The authorities below have not disputed the fact furnished in this regard by the assessee that under the project AN' consisting of buildings AI to A5, the first building plan for a type was approved by the PMC on 29-42003. However, actual construction of A type .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the authorities below. They have also not denied these material facts that the first building plan was sanctioned on 29-4-2003 vide commencement certificate issued by the PMC. The other material facts, like actual construction was executed as per the revised plan sanctioned on 20-3-2004, the project consists of 396 flats and construction of these flats have been completed on 14-7-2006 as per the completion certificate issued by the PMC are not in dispute. The authorities below have also not deni .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a Township Development Construction Co. (2013) 32 Taxmann.com 63, the Hon ble Jurisdictional Tribunal held as under : 22. It has been held in various cases that whatever portion of the project satisfies the conditions of the section should be considered as a housing project for the purposes of section 80IB(10). 23 . . . . . 24 The lower authorities were not justified in holding that since the flats in 'Prime building' had built-up area exceeding 1500 sq. ft. , the entire cosmos project d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pect of profit from such buildings. As regards two flats combined together, the assessee's stand has been that it conceived the flats as independent units and these were constructed as independent units. There is nothing on record to suggest that the assessee itself has joined the adjacent flats. In this situation, the assessee should not suffer for its no fault if purchaser join the adjoining flats. Therefore, the assessee was entitled for deduction under section 80-IB(10) in respect of ent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

per cent of the profits derived in the previous year relevant to the assessment year from such housing project complying with the condition, each block in the larger project by name Agrini' and 'Vajra', has to be taken as an independent building and hence a housing project, for the purpose of considering a claim of deduction. The undertaking qualifying for deduction under section 80-IB is an 'undertaking developing and building housing projects' and the education is in respe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ught out by the ratio of the aforesaid decisions, the contention of allowing proportionate deduction stands merit and the judicial precedents and authorities quoted directly support the claim made by the appellant in this regard. 3.11 In view of the above, grounds of appeal No.1 to 3 raised by the appellant are liable to be allowed. 8. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us with the following grounds : 1. The learned Commissioner of Income-tax (Appeals) erred .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

refore, in order to be eligible for deduction u/s.80IB(10), it is the "housing project" in its entirety and not specific buildings constructed thereunder, which will have to fulfill the conditions specified u/s.80IB(10) of the Act. 3. The learned Commissioner of Income-tax (Appeals) erred in not considering the decision of jurisdictional High Court in the case of CIT vs. Brahma Associates, 333 ITR 289 wherein it was held that if the conditions set out in section 80IB(10) are satisfied, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

g B1 of the housing project on standalone basis when Building B2 of Part B of the housing project was incomplete. 10. Referring to the decision of Hon ble Bombay High Court in the case of CIT Vs. Brahma Associates reported in 333 ITR 289 he submitted that the Hon ble High Court in the said decision has held that if the condition set out in 80IB(10) are satisfied then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to a p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nd A2 and B1 were completed before 31-03- 2008. Even the AO in the in A.Y. 2008-09 has allowed the claim of deduction u/s.80IB(10) after the case was reopened u/s.148. 12. Referring to page 43 and 44 of the paper book the Ld. Counsel for the assessee submitted that the deduction claimed u/s.80IB(10) amounting to ₹ 3,38,94,920/- was allowed by the AO in assessment completed u/s.143(3) on 29-12-2009 for A.Y. 2007-08. Referring to the copy of the assessment order for A.Y. 2008-09, a copy of w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

said sub-section : 1. CIT Vs. Vandana Properties (2013) 353 ITR 36 (Bom.) 2. Apoorva Properties and Estates Pvt. Ltd. - ITA No.113/PN/2007) 3. Viswas Promoters Pvt. Ltd. Vs. ACIT reported in 83 CCH 069 14. He submitted that whatever portion of the housing project which satisfies the conditions stipulated u/s.80IB(10) of the Act has to be considered as a housing project for the purpose of allowing deduction under the said section. For the above proposition he relied on the following decisions : .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ore, whatever portion is completed shall be treated as a housing project and deduction shall be allowed u/s.80IB(10) of the Act. For the above proposition, he relied on the following decisions : 1. Ramsukh Properties Vs. DCIT reported in (2013) 153 TTJ 211 (Pune) 2. CIT Vs. Tarnetar Corporation reported in (2014) 362 ITR 174 (Guj.) 16. Referring to the following decisions he submitted that only those statutory conditions which are present on the statute book on the date of approval of the housin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

view of the series of decisions relied on by the CIT(A) as well as the decisions now submitted the matter stands squarely covered in favour of the assessee. Therefore, the order of the CIT(A) should be upheld and the grounds raised by the Revenue should be dismissed. 18. We have considered the rival arguments made by both the sides, perused the orders of the AO and CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

B1, B2, B3 and B4. The total area of the project A was 8,853 sq.mtrs. The construction of the building A1 was started vide commencement certificate dated 08-01-2004 and the said building A1 comprising of 108 units was completed on 06-07-2006. Similarly, Building A2 which was commenced vide commencement certificate dated 18-05-2004 consisting of 108 units was completed on 06-11-2007. The project B comprising of 10, 394.66 sq.mtrs of Part B and 1606.02 sq.mtrs of Part C. The Building B1 commenced .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

omically viable the assessee did not complete the residential floors but only completed the parking floors for want of adequate FSI. However, subsequently, the assessee renewed the same on 22-06-2010 vide a separate commencement certificate. For the other 2 buildings, i.e. B3 and B4 on Part C of the plot another commencement certificate was obtained and building plan was sanctioned as there was no adequate FSI for building B2 itself. 19. It is the case of the Revenue that since the assessee has .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

10) was allowed in order passed u/s.143(3). In A.Y. 2008-09 the deduction claimed was allowed in the order passed u/s.143(3)/147. Therefore, there is no justification for denying the claim of benefit of deduction u/s.80IB(10). 20. We find merit in the above submissions of the Ld. Counsel for the assessee. The AO in the assessment proceedings for A.Y. 2007- 08 has accepted the contention of the assessee that Part A and Part B are separate projects and accordingly allowed the claim of deduction u/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d there is no commercial construction and the building independently on standalone basis satisfies all the conditions u/s.80IB(10). It has been held by various decisions that deduction u/s.80IB(10) of the Income Tax Act, 1961 is to be allowed on standalone basis on satisfaction of the conditions prescribed under the said section. 21. The Pune Bench of the Tribunal in the case of Padmavati Developers (Supra) has held that assessee is entitled to pro-rata deduction in respect of the residential un .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

date of survey and upto 31.03.2008. 37. The Hon ble Madras High Court in Viswas Promoters Pvt. Ltd. vs. ACIT, (2013) 255 CTR 149 (Mad.) have laid down that within a composite housing project, where there are eligible and intelligible units, the assessee can claim deduction in respect of eligible units in the project and even within the block, the assessee is entitled to claim proportionate relief against the units satisfying the extent of built-up area. 38. Similar proposition has been laid dow .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version