TMI Blog2017 (2) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... on of land in question from PMC limits. The assessee should not suffer for the same. Under such circumstances, liberal interpretation should be used in favour of the assessee. It is settled legal position that law always gives remedy and law does wrong to no one. We are aware that provisions of section 80IB(10) suggest about only completion of construction and no adjective should be used alongwith word ‘completion’. This strict interpretation should be given in normal circumstances but facts before us are peculiar because of change of jurisdiction of land for the purpose of applicability of building bye laws. Assessee was incapacitated to obtain completion certificate from PMC because of exclusion of land in question from PMC limits which is beyond the control of the assessee. Assessee should not suffer for the same. - Decided in favour of assessee. - ITA Nos. 56, 57 & 58/PUN/2015 - - - Dated:- 25-1-2017 - Shri Anil Chaturvedi, Am And Shri Vikas Awasthy, JM Assessee by : Shri Krishna Gujrathi Revenue by : Shri Hitendra Ninawe ORDER Per Vikas Awasthy, JM These three appeals have been filed by the Revenue against the orders of Commissioner of Income Tax (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons laid down in para (i) of sub-clause (a) of section 80IB(10) of the IT Act, 1961 for claiming deduction u/s. 80IB(10). 2. The order of the CIT(A) be vacated and that of the AO be restored on this issue. 3. The appellant craves to add, alter, amend, substitute or delete any of the grounds urged herein above as and when found necessary. Identical grounds have been raised by the Revenue in appeals for assessment years 2010-11 and 2011-12 against the order of Commissioner of Income Tax (Appeals). 4. Shri Krishna Gujrathi appearing on behalf of the assessee submitted at the outset that the Assessing Officer had made disallowance for similar reasons in the assessment year 2006-07. The ld. AR pointed that this fact has been recorded by the Assessing Officer in para 5.2 of the assessment order dated 28-02-2014 for assessment year 2008-09 and para 4.2 of the assessment order dated 22-03-2013 for assessment year 2010-11. Similar observations have been made by the Assessing Officer in para 5.2 of the assessment order dated 14-02- 2014 for assessment year 2011-12. The ld. AR submitted that the Tribunal in appeal filed by the assessee in ITA No. 937/PN/2010 (supra) has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on record show that the first phase of the project consisting of buildings A, B, C, D and E was approved on 31-01-2001. As per the provisions of section 80IB(10)(1)(a) project should have been complete on or before 31-03-2008. Whereas, the approval of second phase of the project consisting of Buildings F, G and H + 10 row houses + amenities space was obtained on 25-01-2007. Therefore, as per the provisions of section 80IB(10)(a) the second phase of the housing project is eligible to claim deduction if the project is complete on or before 31-03-2012. As has been pointed earlier the assessee has obtained completion certificate in respect of 80 flats in Buildings A, B, C, D, and E and 48 flats in respect of Buildings F, G and H on 28-02-2008. This issue had come up before the Co-ordinate Bench of the Tribunal in ITA No. 937/PN/2010 (supra). The Tribunal held : 13. The next objection of the Assessing Officer is that the project is not complete on 31.03.2008. The Assessing Officer observed that on visit to the project site during assessment proceedings in December, 2008, the construction of buildings B-1 to B-10 and amenity building and shop was not started which proved that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nits of the size not exceeding 1000 square feet ('E' building in the present case) would constitute a 'housing project' under Section 80IB(10) of the Act. 14. In this background we find that the authorities below failed to appreciate that lay out can have number of housing projects and the fact that the building plan approved on 25.01.2007 by the Collector, Pune, was independent and was not the extension of the building plan approved on 31.03.2001 by PMC with regards to five earlier buildings. We find that ITAT Pune Bench in the case of Rahul Construction Co. Vs. ITO in ITA.No.1250/PN/2009 and 707/PN/2010 held observed that there is a difference between the layout plan and building plan. It was held that approval of housing project and approval of building plan are two different concepts. Thus it was held that whatever portion of the housing project is otherwise found to be eligible, has to be considered as a housing project for the purposes of deduction u/s.80IB(10). The next objection of the Assessing Officer is that the assessee could not produce the completion certificate from the local authority i.e., Collector, Pune, the competent authority who has sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defined in Explanation 2 to section 10(20) of the Act as under: Explanation - For the purposes of this clause, expression local authority means (i) Panchayat as referred to in clause (d) of Article 243 of the Constitution or (ii) Municipality as referred to in clause (e) of the Article 243P of the constitution or (iii) Municipal Committee or District Board, legally entitled to or entrusted by the Government with the control and management of Municipal or local fund (iv) Cantonment Board as defined in section 3 of the Cantonment Board Act 1924 15. In view of above we hold that assessee should not suffer for any administrative change with regard to applicability of building bye laws in particular area. The problem arose with regard to completion certificate by PMC by virtue of the fact that area of the land in question was excluded from PMC limits at relevant point of time as discussed above. In such peculiar conditions, the benefit bestowed on assessee should not be denied for no fault of the assessee. Such liberal interpretation should be used in favour of assessee when he is incapacitated in complying certain provisions for the reasons beyond his co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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