TMI Blog2016 (6) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... gible to claim the deduction under section 80IB(10) of the Act. Similar claim has been made by the assessee in the instant assessment year relating to assessment year 2009-10 and where the factual aspects and issue raised are identical to the issue in assessment year 2008-09, following the same parity of reasoning and also because of reason that the CIT(A) in allowing the claim of deduction, had in turn relied on the order of CIT(A) relating to assessment year 2008-09, which has been upheld by the Tribunal in assessment year 2008-09, we allow the claim of assessee. Upholding the order of CIT(A) in this regard, we dismiss the grounds of appeal raised by the Revenue. - Decided in favour of assessee. - ITA No.1174/PN/2014 - - - Dated:- 27-4-2016 - MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM For The Appellant by : Dr. Subhash K.R., JCIT For The Respondent : S/Shri Nikhil Pathak and Suhas Bora ORDER PER SUSHMA CHOWLA, JM: This appeal filed by the Revenue is against the order of CIT(A)-I, Pune, dated 29.11.2013 relating to assessment year 2009-10 against order passed under section 143(3) of the Income-tax Act, 1961 (in short the Act ). 2. The Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the project was approved prior to 01.04.2005, under which two commercial buildings were constructed and no deduction was claimed under section 80IB(10) of the Act. Further, in building F, area of flats including balcony exceeded 1500 sq.ft. and no deduction was further claimed under section 80IB(10) of the Act. In respect of building D, there were four adjacent flats, where the area exceeded 1500 sq.ft. and again deduction was not claimed by the assessee under section 80IB(10) of the Act. However, the Assessing Officer denied entire claim of deduction under section 80IB(10) of the Act in view of the amendments to the said section. The CIT(A) on the other hand, allowed deduction on all accounts except on which items which were not claimed in the return of income. Our attention was drawn to the order of Tribunal in this regard relating to assessment year 2008-09, wherein additional grounds of appeal in this regard were admitted and relief was given to the assessee. 4. The learned Departmental Representative for the Revenue on the other hand, pointed out that the project approved of the assessee was residential cum commercial project and the same was violative as per provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject. In view of all this, the Assessing Officer observed that the deduction claimed by the assessee under section 80IB(10) of the Act was in respect of the project which was residential and commercial project and had flats, where built up area was in excess of 1500 sq.ft. In view thereof, as per the Assessing Officer, the assessee had not fulfilled the conditions laid down under section 80IB(10)(c) of the Act and 80IB(10)(d) of the Act and the assessee was asked as to why the deduction under section 80IB(10) of the Act for this project should not be denied. The assessee put up its case before the Assessing Officer and pointed out that even if all the buildings in project Treasure Park were considered as part of one housing project, all the conditions have been satisfied except for the condition relating to maximum built up area as per clause (c) of section 80IB(10) of the Act in respect of part of building D and building F. The assessee further contended that on this ground alone, the deduction under section 80IB(10) of the Act in respect of eligible units could not be denied. Without prejudice basis, the assessee claimed that the proportionate deduction under section 80IB(10) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ony and also in respect of 4 flats in building D, which were sold independently, but were merged by the flat owners. Further, in respect of built up area of shops and commercial establishments in the housing project, the assessee claimed that since the project was sanctioned prior to amendment brought in by section 80IB(10)(d) of the Act, the assessee was entitled to the claim of deduction under section 80IB(10) of the Act. The CIT(A) referred to the decision of his predecessor relating to assessment year 2008-09, wherein the issue was examined in detail and it was held that there was no violation of conditions by the assessee as the project of the assessee was approved by local authority prior to 01.04.2005. In view thereof, the CIT(A) allowed the additional grounds of appeal raised by the assessee for allowing deduction in respect of 4 units in building D, all units in building F and commercial units in buildings J K. The CIT(A) in assessment year 2008-09 had admitted the additional evidence filed by the assessee and in view of the powers of CIT(A) being co-terminus with the powers of Assessing Officer and in view of the provisions of Rule 46 of the Income Tax Rules, 1962 (in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. We have also considered the various decisions cited before us. We find the assessee in the instant case has constructed a housing project at Survey No.61, Sahakar Nagar, Pune which comprise of 10 buildings A,B,C,D,E,F,G, H, J K. The buildings A to H are residential buildings and the buildings J K are exclusively commercial buildings/shops. The total residential built up area of the project is 97.25% and that of the commercial/shop is 2.75% whose area totals to 12,325 sq.ft. We find the assessee in its return of income had claimed deduction only in respect of the residential units having built up area less than 1500 sq.ft which is evident from the Form 10CCB filed along with the return of income wherein it has been mentioned that the housing project comprises of residential units having built up area of both more or less than 1500 sq.ft. In other words, the assessee has claimed proportionate deduction u/s.80IB(10). 24. We find the commencement certificate issued by PMC clearly shows that approval is residential + commercial and the occupancy/completion certificate mentions the completion of both the shops and showrooms. We find the AO denied the claim of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and when the project has been approved as a residential cum commercial project, therefore, the assessee is not entitled to deduction u/s.80IB(10) and the CIT(A) was not justified in allowing the claim. 28. We do not find any merit in the above argument of the revenue. It has been held by the Hon ble Bombay High Court in the case of CIT Vs. Pruthvi Brokers and Shareholders reported in 349 ITR 336 that an assessee is entitled to raise not merely additional legal submissions before the appellate authorities but is also entitled to raise additional claims before them. The appellate authorities have the discretion to permit such additional claims to be raised. The appellate authorities have jurisdiction to deal not merely with additional grounds which became available on account of change of circumstances or law but with additional grounds which were available when the return was filed. The words could not have been raised must be construed liberally and not strictly. There may be several factors justifying the reason of a new plea in an appeal and each case must be considered on its own facts. Therefore, the first ground of the revenue that when the claim of deduction u/s.80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt read as under : 2. This appeal was admitted on 14th January, 2013 on the following substantial questions of law : (a) Whether on the facts and in the circumstances of the case and in law, the Tribunal did not err in holding that the clarification of the built up area introduced by way of section 80IB(14)(a) with effect from 01-04- 2005 can only be applied to projects which have been sanctioned after 01-04-2005? (b) Whether on the facts and in the circumstances of the case and in law, the order of the Tribunal passed without appreciating and evaluating all the relevant facts and evidences including circumstantial evidences, not perverse? 3. The Respondent Assessee is a builder who claimed deduction u/s.80IB(10) of the Act in respect of its Housing Project at Pune. The admitted position is that the subject project was sanctioned/approved prior to 1st April, 2005. The Parliament by Finance (No.2) Act, 2004 introduced sub-section 14(a) to Section 80IB(10) of the Act w.e.f. 1st April 2005. Thus, the issue arising in this appeal is where Housing Projects has received sanction/approval prior to 1st April, 2005 would the provision of section 80IB(14)(a) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of fact that two adjoining flats were approved by the local authority as separate units and completion certificate issued on that basis. Therefore, on the above finding of fact, the Tribunal held that the two flats cannot be treated as one unit to compute the built up area for the purposes of section 80IB(10) of the Income Tax Act, 1961. The decision of the Tribunal being based on finding of fact, we see no reason to entertain question (ii). 34. Since in the instant case the Ld.CIT(A) has categorically given a finding that the assessee has sold the residential units to different individuals, the individual ownership is legally enforceable, the individuality of the ownership exists before the different authorities/organisations like PMC for corporation tax, MSEB for electricity meters and housing society for membership etc. and since he has also given a finding that it is the customers who have combined the adjacent units for their own requirements, therefore, in view of the decision of the Hon ble Bombay High Court in the case cited supra and in absence of any contrary material brought to our notice, the assessee cannot be denied the benefit of deduction u/s.80IB(10) in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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