TMI Blog2019 (5) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s.80IB(10) is eligible for deduction - Decided in favour of assessee. - ITA Nos.430 And 431/PUN/2017 - - - Dated:- 26-3-2019 - Shri Anil Chaturvedi, AM And Shri Partha Sarathi Chaudhury, JM For the Assessee : Shri Nikhil Pathak. For the Revenue : Ms. Nandita Kanchan ORDER PER ANIL CHATURVEDI, AM : These two appeals filed by the Revenue are emanating out of a consolidated order of Commissioner of Income Tax (A), Pune-5, Pune dated 12.10.2016 for the assessment years 2007-08 and 2012-13, respectively. 2. Before us at the outset, both the parties submitted that though the appeals filed by the Revenue are for two different assessment years but the facts and issues involved in both the appeals are identical except for the assessment year and the amounts involved and the Ld.CIT(A) has also passed a consolidated order and therefore the submissions made by them while arguing one appeal would be equally applicable to the other appeal also and thus, both the appeals can be heard together. In view of the aforesaid submissions of both the parties, we, for the sake of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he noted that since two flats were having more than 1500 sq.ft, there was violation of the condition. He also noted that in A.Y. 2008-09, similar issue was involved in assessee s case and AO has disallowed the claim of deduction. He therefore following the order of his predecessor denied the entire claim of deduction of ₹ 13,98,39,769/- u/s 80IB(10) of the Act. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A), who noted that the Tribunal in assessee s own case in A.Y. 2008-09 and 2009-10 vide order dt.15.04.2013 has directed to allow the deduction u/s 80IB(10) of the Act on pro rata basis with reference to the qualifying residential units and the disallowance be restricted only to those residential units where the built up area exceeds the prescribed limit. He thus decided the issue in assessee s favour by observing as under : 4 . 3 I have carefully perused the material on record a n d submission made b y t he Appellant and the ITAT Pune's order dated 1 5 . 04.2013 in Appellant's cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... H ous i ng development Ltd . (supra) held as under:- 14 ............ . 15 ............ . 16 ............. 17 .. 18 . Nothing contrary was brought to our knowledge and above decision in Rohan Homes (supra) laid down that assessee will not be eligible for deduction in r es p ect to the units exceeding prescribed limit , but he ' will be entitled for balance residential units which are within the prescribed l i mits of size of 1500 sq. ft. as applicable to the Pune Municipal Corporation. We find that the ITAT Pune A Bench in the case of Ankit Enterprises Vs. ITO and others, ITA No.156/PN/2011, has also held as under :- 16. Respectfully following the decision of the Tribunal in the case of D. S. Kulkarni Developers Ltd. (supra) .. 17. So far as the decision relied on by the learned DR we find those are distinguishable and not applicable to the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT in this regard for A.Yrs. 2008-09 2009-10 in Appellant's own case, the Assessing Officer is directed to rework the deduction in respect of the Appellant's project 'Kumar Shantiniketan' as per directions issued by the Hon'ble ITAT in its order dated 15.04.2013. Ground of Appeal No.1 raised by the Appellant is therefore, held to be allowed. The Appellant succeeds in Ground No.1 for both the years. 4.1. As far as A.Y. 2012-13 is concerned, AO noted that assessee had claimed deduction of ₹ 2,82,89,304/- u/s 80IB(10) of the Act for the project Kumar Shantiniketan . It was noticed that the flats bearing Nos.3 and 4 at D Building with garden area of 236.03 sq.ft and the garden area was not considered in that built up area of the flats. AO had observed that if the garden area was included in the built up area then the maximum permissible built up area would exceed the mandatory requirement prescribed u/s 80IB(10) of the Act. He accordingly denied the claim of deduction u/s 80IB(10) of the Act for the entire project. He also noted that assessee has claimed ₹ 12,91,69,257/- u/s 80IB(10) of the Act for the project Kumar Kruti which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z . , t h e project Kuamr Kruti is part of larger project named K umar City project , a ss e ss e e should have completed the project by 31 . 03.2008. Further, the commercial a r ea ; in Kumar City project is more than limits prescribed, the s a id condition has also be en violated and lastly built up area of eight flats exceed 1500 s q. ft. which is also violatio n of conditions prescribed u/s. 80IB(10). As dis c ussed above , following the reasonin g in project Kumar Shantiniketan, we have allowed deduction on prorates basi s w i th regard to completed eligible flats vide pars 9 of this o r der. Accordingly Ass e s s i ng Officer is di r ected to rework deduction of c l aim u/s. 80IB(10) on eligible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, project K u mar Kruti has been independently sanctioned vide building plan dated 26 . 07 . 2006 . In th i s situation, the Assessing Officer was not justified in holding that, since layout plan is common, project Kumar Kruti is a part of Kumar City project . Even if there i s a common layout plan, but buildings plans are obtained i n dependently/ separat e l y fo r various projects, it cannot be held that all p r ojects are one and part of same pr o je ct . As per Explanation to clause (a) of section 80IB(10) , the date of approval of hou s i ng project means the date on which building plan was approved by the local autho ri t y. I t makes clea r that building plan and layout plan are two different sanct i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Our finding is fortified by the ratio laid down by the ITAT Pune Bench in A diy a Developers discussed above. We also find that ITAT Pune Benc h in DClT vs . A nk i t Enterprises had occasion to decide similar issue and ta ki ng a l l facts and circum st anc es into consideration , dec i ded the similar issue in favou r of assessee wherein s anction of building plan has been made basis for holding i ndependen t p r oject fo r t he purpo se of claiming deduction u/s . 80IB(10). We f i nd that ITAT Pune Bench in P. V . Mahad kar Associates i n ITAT No. 1117/PN/2010 has discussed and decided sim i lar i s s u e i n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to prorate claim of deduction u/s 80IB(10) in respect of eligible flats in the project Kumar Kruti while few flats exceeded the prescribed limit of 1500 sq.ft. The issue of prorate deduction has been allowed by us in A.Y. 2008-09 vide para 16 of this order. Facts being similar the Assessing Officer is directed to rework the deduction in respect of eligible flats as discussed above. 5.4 In view of the above facts and following the decision of Hon'ble Pune ITAT in this regard for the AYrs. 2008-09 and 2009 - 10 in Appellants own case, the Assessing Officer is directed to rework the deduction in respect of the Appellant's project 'Kumar Kruti' as per the directions issued by the Hon'ble ITAT in its order dated 15.04.2013. Ground of Appeal No.2 for AY 2012-13 raised by the Appellant is therefore, held to be allowed . The Appellant succeeds in this Ground of Appeal . Aggrieved by the order of Ld.CIT(A), Revenue is now before us. 5. Before us, Ld.D.R. supported the order of lower authorities. Ld.A.R. on the other hand, reiterated the submissions made before AO a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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