TMI Blog2015 (8) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... t of remaining 6 flats i.e. 2 flats in building A and 4 flats in building B, the completion certificate was obtained by the assessee from PMC on 09-08-2011 i.e. after the expiry of 4 years from the end of financial year in which the housing project was originally approved. It has been repeatedly held by various Hon'ble High Courts and the Tribunal, that where the part of the project has been completed and all the conditions as laid down u/s. 80IB(10) have been complied with, the assessee is eligible to claim deduction u/s. 80IB(10) on the completed part of project on pro-rata basis. Thus we hold that the assessee is eligible to claim deduction on 30 flats on proportionate basis. See Commissioner of Income Tax Chennai Versus M/s. Arun Excello Foundations Pvt. Ltd [2012 (12) TMI 415 - MADRAS HIGH COURT ] - ITA No. 524/PN/2013 - - - Dated:- 24-8-2015 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM Assessee by: Shri Nikhil Pathak Shri Suhas P. Bora Revenue by: Shri Rajesh Damor ORDER PER VIKAS AWASTHY, JM: The appeal has been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-II, Pune dated 29-10-2012 for the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e project was to be developed was more than 1 acre. The size of the plot was reduced to less than 1 acre only for the reason that part of the project land was acquired for D.P. Road. The Tribunal has been consistently taking a view that where the land has been acquired for construction of D.P. Road, and the project land is reduced below the statutory limit of 1 acre, the assessee would still be eligible for claiming deduction u/s. 80IB(10). In support of his submissions, the ld. AR placed reliance on the decision of the Tribunal in the case of M/s. B.K. Pate Enterprises Vs. ACIT in ITA No. 736/PN/2010 for the assessment year 2005-06 decided on 08-07-2011. With regard to the completion of the project the ld. AR submitted that originally the project was approved for 30 flats on 16-08-2004. Subsequently, the layout was revised on 31-03-2008 for 36 flats, 12 in building A and 24 in building B. Out of 12 flats in building A, 10 flats were completed within the stipulated period of 4 years. In building B, 20 flats were completed within the stipulated period of 4 years. The remaining 2 flats in building A and 4 flats in building B were completed within time limit from the date of revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory limit of 1 acre, if the reduction in size of plot is result of acquisition of land for D.P. Road. The land acquired for D.P. Road is part of the project. The relevant extract of the order of Tribunal is as under: 6. Considering the above submissions, we are of the view that only because the A.O has not discussed the issue, i.e. allowability of the claimed deduction u/s. 80 IB (10) of the Act, in detail in the assessment order, an inference cannot be drawn that the A.O has not applied his mind on the issue. The material available on record i.e. copy of questionnaire issued by the A.O (page Nos. 5 to 9 of the paper book) and reply dated 30th November 2007 of the assessee thereto (page Nos. 10 to 14 of the paper book) clearly suggest that during the course of assessment proceedings the A.O had asked the assessee to furnish the details of size of the plot on which the housing project was constructed. In point No. 9 of the said letter dated 30th November 2007, the assessee has clarified that the project Pate Sanskruti was constructed on the land situated at S. No. 89/1 +90/1 + 91/1. In the said letter, assessee has also clarified that the area is 49,628 sq. fts. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se circumstances, especially in view of CBDT Circular No. 5 of 2005 dated 15.7.2005 and the decisions of Pune Bench of the Tribunal in the above cited cases relied upon by the Ld. A.R, we are of the view that A.O has rightly allowed the claimed deduction u/s. 80 IB(10) treating the size of the plot as required under sub-clause (b) to Subsection (10) to Section 80IB of the Act. The Ld CIT was thus not justified in excluding the area of the land meant for D.P. Road while computing the area of the plot for the purpose of the deduction u/s. 80IB (10) of the Act. It is evident that Ld. CIT has held the assessment order granting the claimed deduction u/s. 80IB (10) to the assessee as erroneous and prejudicial to the interest of revenue only on the basis that the area of the plot on which the project was constructed is below the prescribed limit of 1 acre. In view of the foregoing discussion on the subject, we hold that Ld CIT was not justified in invoking the provisions of Section 263 of the Act against of the assessment order on the issue, only because he was nurturing different view which cannot be stated as even the different possible view within the meaning of Section 80 IB (10) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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