TMI Blog2018 (9) TMI 1905X X X X Extracts X X X X X X X X Extracts X X X X ..... not change the character of existing plot. The conditions stipulated in section 80IB(10) of the Act, of the project being one acre of plot, was held to be fulfilled and hence, the assessee was held entitled to claim of deduction under section 80IB(10) of the Act. Following the same parity of reasoning, we hold that the assessee for the year under consideration is also entitled to claim the aforesaid deduction under section 80IB(10) of the Act. Project had commenced on 28.04.2005 as per first approved plan and the said project has been completed within stipulated time allowed under section 80IB(10) of the Act i.e. by 31.03.2011, for which necessary evidence has been filed on record. Consequently, the assessee is entitled to claim the deduction under section 80IB(10) of the Act. Thus, grounds of appeal raised by the Revenue are dismissed. Prorata deduction u/s 80IB - Violation to the provisions of section 80IB(10)(f) of the Act had made multiple allotments of the flats to family members - HELD THAT:- CIT(A) was of the view that two units allotted to spouses of individual being A8-302 and A2-103 had violated the conditions of section 80IB(10)(f) of the Act. He relied on the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM For The Assessee : Shri V.L. Jain For The Respondent : Shri S.B. Prasad ORDER PER SUSHMA CHOWLA, JM: This bunch of appeals filed by Revenue are against consolidated order of CIT(A)-12, Pune, dated 17.06.2016 relating to assessment years 2011-12 to 2013-14 against respective orders passed under section 143(3) r.w.s 153C of the Income-tax Act, 1961 (in short the Act ). The assessee filed Cross Objections against the appeals of Revenue. 2. This bunch of appeals filed by Revenue and Cross Objections filed by the assessee were heard together and are being disposed of by this consolidated order for the sake of convenience. 3. First, we take up ITA No.1974/PUN/2016 and CO No.40/PUN/2018, relating to assessment year 2011-12. 4. The Revenue in ITA No.1974/PUN/2016, relating to assessment year 2011-12 has raised the following grounds of appeal:- 1. Whether on the facts and circumstances of the case, the Ld. CIT(A) was justified in allowing deduction u/s 80IB(10) of the Act when t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded in its favour by the Tribunal for the first time in assessment year 2008-09 vide order dated 11.03.2014, which was also followed for assessment year 2007-08. In assessment years 2009-10 and 2010-11, no claim was made and the appeal under consideration relates to assessment year 2011-12, wherein the Assessing Officer denied the benefit and CIT(A) allowed the claim. 8. The learned Departmental Representative for the Revenue on the other hand, stressed that in view of DP road within project, the plot size of each project was less than one acre and the assessee was not entitled to the aforesaid claim of deduction under section 80IB(10) of the Act. However, he fairly agreed that the issue has been decided by the Tribunal in earlier years. 9. We have heard the rival contentions and perused the record. The assessee had undertaken the development of project Namrata Magic and had claimed deduction under section 80IB(10) of the Act. However, in assessment years 2007-08 and 2008-09 the claim of assessee for deduction under section 80IB(10) of the Act was denied. The Assessing Officer in the present year also, took note of the said fact, against which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Revenue are dismissed. 12. The learned Authorized Representative for the assessee pointed out that Cross Objections filed by the assessee would become academic in case the appeal of Revenue is dismissed. Accordingly, we dismiss the Cross Objections. 13. Now, we take up the appeal filed by Revenue and Cross Objections filed by assessee relating to assessment year 2012-13. 14. The issue raised by the Revenue is in respect of another project developed by the assessee i.e. Leelawati Greens , wherein it was noted that the assessee in violation to the provisions of section 80IB(10)(f) of the Act had made multiple allotments of the flats to family members. 15. Brief facts relating to the issue are that the assessee during the year under consideration had developed another project i.e. Leelawati Greens, wherein it had allotted flats to various persons. The Assessing Officer on verification found that the assessee had made multiple allotments of flats to family members i.e. two flats were allotted to spouses of the individuals. The Assessing Officer held the assessee not to be entitled to claim the deduction under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... boo Kularia and Mr. Ashok Kularia (wife husband) and A2-103 and 104 were allotted to Mrs. Snehlata Joshi and Mr. Vasant Hoshi (wife husband). The Assessing Officer thus, denied entire claim of deduction under section 80IB(10) of the Act. The CIT(A) was of the view that two units allotted to spouses of individual being A8-302 and A2-103 had violated the conditions of section 80IB(10)(f) of the Act. He relied on the ratio laid down by the Hon ble High Court of Madras in CIT Vs. Arun Excello Foundation Pvt. Ltd. reported in 86 DTR 99 (Mad) and Vishwas Promoters Pvt. Ltd. Vs. ACIT reported in 81 DTR 58 (Mad) and was of the view that the assessee was entitled to claim prorata deduction on the profits of balance project excluding two flats which were allotted to spouses of individuals. We are in conformity with the findings of CIT(A), where the violation of clause (f) of section 80IB(10) of the Act has been made by the assessee, then in respect of profits on flats allotted to spouses of individuals is to be excluded and is not entitled to the claim of deduction under section 80IB(10) of the Act. The CIT(A) has already directed the Assessing Officer to verify the correctness of profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, no completion certificate has been received by the applicant till date. The learned Authorized Representative for the assessee pointed out that certificate of Architect that construction of Club house was completed on 29.03.2011, was filed before the CIT(A). Merely because the completion certificate had not been received from the State Authorities would not disentitle the assessee to the aforesaid claim of deduction under section 80IB(10) of the Act though on prorata basis. We find merit in the plea of assessee, wherein it had completed the construction of Club house within stipulated period and had also applied for completion certificate on the basis of certificate issued by the Architect that construction of Club house was completed on 29.03.2011. It is not case of the Department that assessee had not applied for completion certificate. However, merely because the completion certificate has not been issued by the State Authorities would not disentitle the assessee to its claim of deduction under section 80IB(10) of the Act on prorata basis. Accordingly, we hold so and direct the Assessing Officer to allow the said claim in the hands of assessee. The Cross Objections ..... X X X X Extracts X X X X X X X X Extracts X X X X
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