9911796707
TMI Blog2014 (8) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... CC/3152/06 dated 02-12-2006 vi. CC/1742/08 dated 28-08-2009 2.2 He noted that the assessee has received part completion (Occupancy) Certificate in 3 parts which are as under : i. Certificate Part-I dated 07-12-2006 for 7 row houses ii. Certificate Part-II dated 20-06-2008 for 28 flats in building 'C'. iii. Certificate Part-III dated 31-10-2009 for 28 flats in building 'B'. In view of the above, the AO asked the assessee to explain as to how this housing project is eligible for deduction u/s.80IB(10) when the conditions laid down under the Act are not fulfilled. 3. After considering the submissions made by the assessee the Assessing Officer held that the assessee is not entitled for deduction u/s.80IB(10) because it does not satisfy the conditions prescribed therein. He noted that the first plan was approved on 04-01-1997 for construction of 6 units which was revised on 24-01-2001 for construction of 34 units, i.e., 28 flats and 6 row houses. Commencement certificate issued on 16-07-2002 was for construction of 63 flats. This was again revised vide commencement certificates dated 25-08-2005, 02-12-2006 and 28- 08-2009. He noted that the last approved project building sanction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s laid down in other sub-clause (1) and (c) of section 80IB(10) of the Act, the Assessing Officer held that the assessee is not eligible for deduction u/s.80IB(10) of the Act. He accordingly disallowed the claim made by the assessee u/s.80IB(10). 4. The assessee preferred an appeal before the CIT(A). However, the CIT(A) also was not fully satisfied with the explanation given by the assessee and upheld the disallowance made by the Assessing Officer. So far as the observation of the Assessing Officer that the housing project was sanctioned for construction of 65 units which was not completed within the stipulated time, he held that the size of the project comprised of 63 units only which included 56 flats and 7 row houses which could quality for claim of deduction u/s.80IB(10) and not 65 units as held by the Assessing Officer. The Revenue is not in appeal before us on this observation of the CIT(A). Therefore, the first objection of the Assessing Officer that the housing project was sanctioned for construction of 65 units was negated by the CIT(A). 4.1 So far as the second objection of the Assessing Officer that the area of 2 row houses, i.e. 1 & 7 are having area of more than 1500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent approvals. The appellant during the appellate proceedings has filed the building plan approved vide CC dated 25-8-2005 only, though the Assessing Officer has mentioned in para 9 of the order about the commencement certificate dated 16.07.2002 was for construction of 63 flats which was again revised on successive dates. The Assessing Officer has taken the commencement date of the project of 25-8-2005 as an assumption with respect to the last revision of the plan on 28-8-2009 whereby construction of 65 tenements was approved and it ^ was in this context that the stipulated date of completion has been taken as at 31-3-2011. The Assessing Officer has, however, rightly taken the date of commencement of the project as at 16-7-2002 as the first approval held that for the 63 units i.e. the housing project was approved before 31st March 2004 and the project should have been completed before 31-3-2008. 3.12 Thus, the issue involves date of completion of the project for which Section 80IB(10)(a)(i) has prescribed the time limit upto 31.03.2008 when the housing project has been approved by the local authority before 01.04.2004 Further, the explanation (ii) below section 80IB(10)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above fact that the project has not been completed within the stipulated time frame u/s.80IB(10)(a) and, therefore, the ground of appeal No.1 raised by the appellant is liable to be dismissed". 5. Aggrieved with such order of the CIT(A) the assessee is in appeal before us with the following grounds : "1) On the facts and in the circumstances of the case and in law the learned CIT(A) erred in confirming the disallowance of deduction of Rs. 5,90,19,941/- claimed under section 80IB(10) of the I T Act made by the Income Tax Officer, Ward 4(5), Pune without appreciating the facts of the case in proper perspective and law prevailing for the project under consideration. The appellant hereby prays your honour that the claim of deduction may please be allowed. 2) On the facts and in the circumstances of the case and in law the learned CIT(A) failed to appreciate the fact that the date of commencement of the project is when the assessee submits the building plan for approval, the local authority approves the plan and the assessee commences the construction as per the said approval. The learned CIT(A) failed to appreciate the fact that the appellant commenced the construction as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in nature and it has no application to the housing project which was approved by local authority prior to 01-04-2005." 6. The Ld. Counsel for the assessee referring to the above ground submitted that the additional ground raised is part of the first ground of appeal and is more specific and as such strictly is not an additional ground of appeal. Further, this ground is purely a legal one. He submitted that all the facts and details were before the Assessing Officer as well as the CIT(A) and no new facts are being brought on record by the assessee. Relying on the decision of the Hon'ble Supreme Court in the case of NTPC Vs. CIT reported in 229 ITR 383 he submitted that since this additional ground is purely a legal one and no new facts are required to be looked into for adjudication of this ground, therefore, the same should be allowed. 7. After hearing the Ld. Departmental Representative and considering the additional ground being a legal one, the same is being admitted for adjudication. 8. The Ld. Counsel for the assessee at the outset referred to the decision of Hon'ble Delhi High Court in the case of CIT Vs. CHD Developers Ltd. reported in 362 ITR 177 and submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & 7 are more than 1500 sq.ft. each (c) the housing project was required to be completed in totality and not individual flats and (d) the condition laid down in section (a) and (b) of 80IB(10) of the Act was not fulfilled. 10.1 So far as the first 2 objections are concerned, we find the Ld.CIT(A) has decided the above issues in favour of the assessee. We find the CIT(A) has held that the size of the project comprise of 63 units only which included 56 flats and 7 row houses which could quality for the claim of deduction u/s.80IB(10) and not 65 units as held by the Assessing Officer (para 3.6 of the order). Similarly, he has held that the area of the 2 units, i.e. 1 & 7 are less than 1500 sq.ft. after excluding terrace, balcony and projections etc., and therefore the 2 units fulfil conditions prescribed u/s.80IB(10)(14)(a) of the I.T. Act. The above observations of the Ld.CIT(A) are not challenged by the Revenue and therefore it has attained finality and therefore we are not concerned with the above objections of the Assessing Officer. 10.2 The other ground on which the Assessing Officer based his rejection of deduction u/s.80IB(10) is that the assessee has not been able to obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the project in accordance with the approved plan at a particular point of time and the assessee was not expected to do or to fulfil the conditions which were not in existence at the relevant point of time or made compulsory by amendment in the Act from the future date. Since the assessee was to complete the project on or before March 31, 2009, and a request was duly made with the competent authority on November 5, 2008, mentioning that the project had been completed and the completion certificate may be issued and if the certificate was not issued by the competent authority the assessee should not be penalised therefore unless and until some contrary facts were brought on record evidencing that the assessee contravened the conditions contained in the approval granted by such competent authority. However, since the approval was granted to the assessee on April 1,2005, the assessee was not expected to fulfil the conditions which were not on the statute when such approval was granted to the assessee. The Tribunal accepted the assessee's claim to deduction under section 80-IB(10). On appeal: Held, dismissing the appeal, that the approval for the project was given by the Developme ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
