TMI Blog2018 (3) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... e case and in law, the Ld.CIT(A) is correct in allowing the deduction u/s.80IB(10) of the I.T. Act, 1961. 2. For this and such other reasons as may be urged at the time of hearing, the order of the CIT(A) may be vacated and that of the Assessing Officer be restored. From the above grounds, it is evident that the only issue raised in this appeal relates to allowability of deduction u/s.80IB(10) of the Act. 3. Relevant facts of the case are that the assessee is an AOP and engaged in the business of Builder and Developers. Assessee filed the return of income on 29-09-2011 declaring total income of ₹ 3,22,31,984/-. Assessee claimed the deduction of ₹ 3,75,97,564/- in respect of units sold during the year in building A1 to A6 which were part of project A . However, the assessee claims to have completed the construction of the said building before due date i.e. 31.03.2008. But, the initial plan sanctioned comprised of two projects i.e. project A and B and since project B had not started. Therefore, the deduction claimed under section 80IB(10) of the Act was denied to the assessee in A.Yrs. 2009-10 and 2010-11 by the AO. CIT(A) confirmed the same. Aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and B. The said division was based on the statutory provision under the ULCA, 1976 and the commencement of the work. The project A was envisaged and sanctioned as per order under ULCA, dated 22.11.1998, under which an area of 12094 sq. mtrs. was exempted. The balance for the above area sanctioned on 14.07.2001. The first building plan was sanctioned on 03.06.1997, under which one of the conditions was to obtain NOC for Nalla / gutter. The copy of the said sanctioned plan is placed at page 38 of the Paper Book. Thereafter, the payment for the said Nalla / gutter was made on 26.04.1999 and the copy of the same is placed at page 41 of the Paper Book. The PMC again issued a commencement certificate No.2141 dated 09.06.1999 after the objection was met by the assessee. The copy of the said commencement certificate issued by the PMC is placed at page 40 of the Paper Book. The assessee claims that the second commencement certificate was also issued with the condition meaning Nalla / gutter for rain water was to be removed after the payment of charges and the actual commencement certificate was issued on 17.04.2004, copy of which is placed at page 43 of the Paper Book. The plea of the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be completed on or before 31.03.2008 as per clause (i) thereunder. As per clause (ii) thereunder, where the housing project has been approved by the local authority on after 01.04.2004, but not later on 31.03.2005, then the same has to be completed within four years from the end of the financial year in which the housing project is approved by the local authority. The explanation under section 80IB(10)(a) of the Act further provides that in cases where the approval in respect of housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority. There are other conditions laid down in section i.e. in respect of project being a size of plot of land generally a minimum area of one acre and the residential units being not exceeding the built up area of 1500 sq. ft. and certain restrictions on the commercial area. Admittedly, all the other conditions prescribed under section 80IB(10) of the Act stand fulfilled i.e. the project is on an area exceeding one acre and built up area of the units completed by the assessee are less than 1500 sq.ft. The que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 14.07.2011. However, no construction was commenced by the company Sharan Estates Pvt. Ltd. and thereafter, another plan was sanctioned on 17.04.2004 before formation of AOP on 19.04.2004. The contention of the assessee in this regard is that the plan was sanctioned on 17.04.2004, under which the construction started and hence, it is governed by the provisions of section 80IB(10)(a)(ii) of the Act. However, we find no merit in the stand of the assessee. The Explanation under section 80IB(10)(a) of the Act provides that in cases where the approval in respect of housing projects are obtained more than once, then such housing projects shall be deemed to have been approved on the date on which the building plan was first approved by the local authority. The building plans in the case of assessee after the declaration of surplus land by the ULCA was first approved on 09.06.1999 with certain conditions, which were later fulfilled by the assessee. Merely because another plan for commencement which was sanctioned on a later date i.e. 14.07.2001 and 19.04.2004 relates to the initial plan sanctioned on 09.06.1999 and in view of Explanation to section 80IB(10)(a) of the Act, we hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visaged as per the sanctioned plan dated 03.06.1997. Although there is sanction of plan on 03.06.1997, but the same was with conditions i.e. obtaining declaration under the ULCA, 1976 and the said declaration having been made on 22.11.1998, we find no merit in the stand of the Assessing Officer in this regard that the plans were sanctioned on 03.06.1997. The learned Authorized Representative for the assessee placed reliance on the ratio laid down by the Hon ble Bombay High Court in CIT Vs. Ashray Premises (P.) Ltd. (2013) 34 taxmann.com 165 (Bom) for the proposition that approval of the project does not determine the start of project and it is only the commencement certificate which determines. We find support from the said ratio laid down by the Hon ble Bombay High Court. We direct the Assessing Officer to compute the deduction under section 80IB(10) of the Act in line with our directions after affording reasonable opportunity of hearing to the assessee. Accordingly, the grounds of appeal raised by the Revenue are dismissed. 6. The learned Authorized Representative for the assessee before us pointed out that no deduction was claimed by it in respect of project B . In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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