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TMI Blog2017 (3) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... verification of Form No. 10CCB found that the date of completion of the housing project was not mentioned therein. The appellant also could not produce the completion certificate from the local authority by which the housing project was approved for commencement of construction of the project. The appellant though has submitted to AO that the housing project was completed on 15-02-2011 and has given sufficient evidence for project completion but the AO was not convinced. A.O. held that thus the appellant failed to comply with one of the basic conditions of section 80IB(10) of the Act. The AO further noted that the appellant firm has allotted more than one unit to an individual and his spouse which is violated to section 80IB(10(f) of the Act. The AO found that firm has allotted more than one unit to Shri Dhananjay Ramlalji Choudhary and in another case also two units from the same housing projects were allotted to Shri Ravindra R. Akulwar and his wife Smt. Ashwini Akulwar. In this regard, the AO further found that during the FY 2011-12 relevant to the year under appeal the major work of the housing project was incomplete. Accordingly AO made the impugned disallowance of exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than one unit to Shri Dhananjay Ramlalji Choudhary and in another case also two units from the sme housing projects were allotted to Shri Ravindra R. Akulwar and his wife Smt. Aswini Akulwa. The contention of the AR that the provisions of section 80IB(10)(f) as amended w.e.f. Finance Act-2009 i.e. 01.04.2010 are not applicable has no merits. The amended provision reads as under : "In a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such a housing project is allotted to any of the following persons namely- (i)The individual or the spouse or the minor children of such individual" 5.2 On bare perusal of the above provisions, it is become quite obvious that the appellant has violated the provisions of section 80IB(10(f) of the Act. 5.3 The contention raised by the AR that the appellant has submitted the circumstantial evidence in the form of Gram-panchjayat in the orm of 'tax receipts', 'NOC' for electrical connection, 'valuation certificate' issued by the architect for financing loans, 'possession letter' etc., does not carry much substance in as much as that the AO has clearly established fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on various decisions including that from this Tribunal in ITA No. 35 & 36/Nag/2014 in the case of ITO vs. M/s Swapnashilp Developers vide order dated 24-11-2015 where similar issue was decided in favour of the assessee. Learned counsel further submitted that Hon'ble jurisdictional High Court has affirmed the order of the ITAT in Income Tax Appeal No. 25 & 26 of 2016 vide order dated 24- 10-2016. Learned counsel further submitted that the authorities below have drawn adverse inference on account of allotment of one house to one individual and his spouse by invoking the provisions of section 80IB(10)(f) of the Act. Learned counsel submitted that the said provision was not applicable to the assessee. In this regard learned counsel submitted the following in the form of paper book in support of his contentions : Copy of detailed submissions filed before AO PB Page 1 to 5. Copy of Audit Report Form 10CCB PB Page-6 to 11 Relevant 9 to 11 Letter of approval from Gram Panchayat Besa for different Duplex dated 02-03-2016 PB Page 13 to 18. Copies of letter sent to Deputy Collector dated 15-02-2011 PB Page 19. Copy of sanction layout plan PB Page 20. Detail chart of purchaser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the authorities below. Learned D.R. also placed reliance upon the decision of Hon'ble Madhya Pradesh High Court in the case of CIT vs. Global Reality in ITA No.40/2012& Others. vide order 21-08-2015 for the proposition that certificate from Gram Panchayat will not be sufficient. 7. I have carefully considered the submissions and perused the records. As regards the evidences in support of completion of the project in time the assessee has submitted evidences from the Gram Panchayat. The Gram Panchayat has been accepted as competent authority in several case laws including that from Hon'ble jurisdictional High Court. In this regard I may gainfully refer to the decision of this Tribunal in ITA no. 35 & 36 in the case of M/s vs. M/s Swapnashilp Developers (supra) as under : "7. We have heard both the sides at some length. The assessee is a partnership firm engaged in the business of development of real estate. The assessee has entered into a development agreement nd by virtue of the said agreement obtained development rights to develop the entire piece of land bearing No. 28 to 41, 44 to 55 and 58 to 69 in Khasara No. 38/2, 38/3 admeasuring 45513.47 Sq.ft. The development plan was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respected coordinate Benches, therefore, we find no fallacy in the view taken by the learned CIT(Appeals). Resultantly, the same is hereby confirmed and the grounds raised by the Revenue are dismissed." 8. The next objection was about the prescribed area for the purpose of claim of deduction u/ 80IB(10) of the Act. In support of the above claim, the assessee has furnished the copy of sanctioned map, lay out plan and demonstrated that the total plot area was above the prescribed limit of One Acre. In this regard, we have noted that hate first appellate authority has given a finding of facts demarcating the respective area of the plots and there upon came to the conclusion that the total area of the plots was above the prescribed limit of One Acre. We have noted hat the said finding of fact had not been controverted by the Revenue department. In the absence of any contrary material on record, we hereby confirm the findings of the learned CIT(A). As a result, the grounds raised by the Revenue Department are hereby dismissed." The aforesaid matter was also the subject matter of appeal before the Hon'ble jurisdictional High Court in Income Tax Appeal No. 25 & 26 of 2016 and vide o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his topic jurisdictional High Court is in favour of the assessee. Hence on the anvil of Hon'ble Apex Court decision in the case of CIT vs. Vegetable Products 88 ITR 192 I place reliance upon the jurisdictional High Court decision and reject the contention of the learned D.R. 10. Another adverse inference has been drawn on account of allotment of one flat to spouse of existing allottee. In this regard it is the contention of the learned counsel of the assessee that the said provision is not applicable in the case of the assessee inasmuch as the concerned provision was not applicable. Further more learned counsel has contended that the payments for the said flats were duly received prior to the applicability of the concerned provision. Alternatively learned counsel of the assessee has placed reliance upon the decision of Hon'ble High Courts where it has been held that in all fairness the claim of the assessee with regard to proportionate relief has to be read into the provisions so that deduction provisions are sustained and denial of the entire claim on the basis of some units which had not complied with the conditions is not justified. This view finds support from the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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