TMI Blog2015 (11) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... that:- 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 that 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. - Decided in favour of assessee - I.T.A. Nos. 35 and 36/Nag/2014 - - - Dated:- 24-11-2015 - Mukul K. Shrawat (Judicial Member) And Shamim Yahya (Accountant Member) For the Appellant : Narendra Kane, DR For the Respondent : K. P. Dewani, Advocate ORDER Mukul K. Shrawat (Judicial Member) Both these appeals have been filed by the Revenue emanating from a consolidated order of the learned CIT (A), Nagpur dated 22-10-2013 for the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of condition of minimum area of one Acre:- On this issue, the observation of the AO was as under:- The claim of deduction U/s. 80IB for the remaining amount was examined. It was found that the assessee had claimed deduction u/s 80IB on development of Khasara No.38/2 and 38/3, PHN-38, Mouza Besa, Nagpur. There were 38 plots over the said plot of land out of which 11 plots belonged to the assessee, 15 plots to M/s. Rajeshwar Builders and its partners and the remaining 12 plots belonged to different individuals. The assessee entered in to an agreement of development on 27/06/2007 with M/s. Rajeshwar Builders and other persons to develop the entire plots. The total area of the said 38 plots comes to 4040 sq. mtrs. The assessee claimed that it had developed the entire area of 38 plots admeasuring 4080 sq. mtrs. which was more than one acre, thus it had fulfilled one of the conditions of section 80IB (10) of developing a plot of land of minimum area of one acre. 3A. The submission made by the assessee that it had developed an area of one acre and above is not acceptable. Section 80IB (10) states as under- The project is on the size of a plot of land which has a min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion certificate submitted by the assessee was also not found to be in order. The completion certificate was issued for plot nos. From 28 to 69, whereas the local authority in their proceedings book had sanctioned for the construction work plot nos. 59 to 69. 3. When the matter was carried before the first appellate authority, it was the pleading that the return of income was filed along with an audit report u/s 44 AB of the Act. As per the record, the housing project was constructed on Khasara No.38/2, 38/3, Besa, Nagpur on the total area admeasuring 4230 Sq. Mtrs. Equivalent to 1.04 Acre. It was also submitted that development agreement was entered into on 07-11-2006 for a total consideration of ₹ 1,39,28,142/-. By virtue, of the said agreement, the assessee was entitled to develop the said piece of land. The assessee has also placed reliance on the decision of Radhe Developers, 341 ITR 403 (Guj.). Considering all those facts, the learned CIT (A) has given a finding as under:- 10.10 The Gram panchayat in the State of Maharashtra are operating under the provisions of The Bombay Village Panchayat Act 1958. Under Section 52 of The Bombay Village Panchayat Act 1958 Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificates which are found in order. The housing project therefore has been completed within the stipulated time i.e. by 31st March 2011. In this regard, it has already been held that the Gram Panchayat, Besa is the local authority for grant of approval for construction of the Housing project, therefore, the completion certificate obtained from the said authority, within the stipulated time is in order. 12. Besides, the appellant has also placed reliance on the following judicial decisions: (i) Bajaj Tempo Ltd. Vs. CIT (1992) 136 ITR 188 SC, (ii) CIT Vs. Gwalior Rayon Silk Manufacturing Co. Ltd. (1992) 196 ITR 149, (iii) CIT Vs. Straw Board Manufacturing Co. Ltd. 177 ITR 413 (SC), (iv) Ramsukh Properties Vs. Deputy Commissioner of Income Tax (2012) 138 ITD 278 (Pune). 5. From the side of the Revenue, the learned DR, Mr. Narendra Kane has objected the view taken by the learned CIT (A) that the Gram Panchayat is a local authority. He has also argued that the area of each plot was to be considered separately and the project was not a consolidated project. Hence, each project was having lesser area than the prescribed area. Finally, it was the pleaded that the action of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record a detailed map of the plots which were developed and informed that the said development plan was also sanctioned by the authority. Our attention has also been drawn on The Bombay Village Panchayat Act, 1958 which has provided that sanction of construction of building within the limits of village has to be granted by the Panchayat. So, the argument before us is that the village Panchayat is a local authority, therefore, competent to approve a housing project. On this issue, a judgment has been passed by ITAT Nagpur Bench, Nagpur in the case of ACIT Vs M/s. Chintamoni Builders, order dated 30-10-2015 wherein a discussion of The Bombay Village Panchayat Act, 1958 was made and it was found that the sanction of the construction of a building being situated within the limits of village, the approval has to be granted by the Panchayat. Because of that reason, it was held that the Village Panchayat is a local authority. Relevant portion of the said order is reproduced below:- 6. As far as the issue whether the Gramp Panchayat is local authority or not, the decision of ITAT, Pune Bench has been cited before us bearing No.667/PN/2013 assessment year 2009-10 in the case of Hira ..... X X X X Extracts X X X X X X X X Extracts X X X X
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