TMI Blog2020 (3) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... t, completion certificate has to be obtained from the concerned authority i.e. Municipal Corporation etc. which cannot be done away with. This becomes the fundamental requirement of this provision since prior to receiving the completion certificate whatever work is done, it cannot be said that the project has been completed and there has to be some authoritative check and finding about the completion of the project which is thereafter fit for residing etc. Therefore, we do not find any infirmity with the findings of the Ld. CIT(Appeals) and the same is hereby upheld. Thus, grounds raised in appeal by the assessee are dismissed. Deduction u/s 80IB - requirement of Section 80IB(10)(b) of the Act which states the project is on the size of the plot of land which has a minimum area of one acre - contention of the Revenue that after deducting the D.P Road, the total area of the plot which remains is only 3994.25 sq.mts which is less than one acre - First Appellate Authority has opined that what CBDT circular directed is that the area limit of the plot has to be understood with reference to the area of the site and not with reference to the demarcation done by the Municipal Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s claim of deduction u/s.80IB(10) of the Act when the assessee had not completed the project within the time stipulated thus violating the provisions of section 80IB(10) of the Act. 5. The appellant craves leave to add, alter or amend any or all the grounds of appeal . 3. In ITA No.602/PUN/2016, the assessee has raised following grounds of appeal: 1.The Ld. CIT(A)-3, Pune erred in law and on facts in sustaining disallowance of deduction u/s.80IB(10) of the IT Act, 1961 to 20% (proportion of 12 flats to total 60 flats) of ₹ 2,36,87,505/- i.e. ₹ 47,37,501/- without considering the factual matrix of the case, case laws produced and submission made. 2. The Ld. CIT(A)-3, Pune erred in law and on facts in not appreciating that 12 flats on the fifth floor were also completed and possession of all these 12 flats were handed over before the stipulated date and as such appellant was entitled for the deduction u/s.80IB(10) on these 12 flats also. 3. The Ld. CIT(A)-3, Pune erred in law on not appreciating the fact that the appellant had applied for the completion certificate of 5th floor before the competent authority well within the stipulated tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Awas Ltd. (2015) 377 ITR 150 (Bom.) for the proposition that where the application was filed in time the delay in obtaining the completion certificate was not attributable to the assessee and he cannot be penalized. 7. The Ld. CIT(Appeals) observed that the facts of the instant case are distinguishable from those before the Hon‟ble High Court in as much as here though the application was made in time the Municipal Corporation knowingly did not grant completion for 12 flats on which it had some objection. It is quite clear from the scheme of the section as well as the various High Court pronouncements and also the recent decision of the Hon‟ble Supreme Court in the case of CIT Vs. Sarkar Builders, CA No.4476 of 2015 that the project has to commence as certified by the local Municipal Authorities and its completion also has to be certified by the same authority. The Ld. CIT(Appeals) after considering the assessment order, submissions of the assessee and facts of the case has held as follows: 4.6.1 Reference is again made on this issue to the decision of ITO Vs. Satyanarayan Ramswaroop Agarawal (2014) 50 taxmann.com 111 Pune which has very similar facts. The ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by strict provisions of statute. The taxing statute granting incentives for promotion of growth and development should be construed liberally and that provision for promoting economic growth has to be interpreted liberally. At the same time, restriction thereon too/ has to be construed strictly so as to advance the object of provision and not to frustrate the same. The provisions of taxing statute should be construed harmoniously with the object of statute to effectuate the legislative intention. In view of above facts and circumstances, we hold that assessee is entitled for benefit u/s 80IB(10) of the Act in respect of 173 flats completed before prescribed limit. The Assessing Officer is directed accordingly. 8.2 In view of above, it is clear that assessee received approval for C building from PMC vide certificate dated 03.02.2005 but work on C building could not start since additional FSI in lieu of road widening was not received from PMC. The assessee could not plan the work for C building since engineers and architects could not design the structure of building in the absence of FSI. The details of follow up done by assessee with PMC have been duly appreciated by CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. The Explanation of the provision clearly states that the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority. This signifies that in order to get deduction under the relevant provision, after completion of the project, completion certificate has to be obtained from the concerned authority i.e. Municipal Corporation etc. which cannot be done away with. This becomes the fundamental requirement of this provision since prior to receiving the completion certificate whatever work is done, it cannot be said that the project has been completed and there has to be some authoritative check and finding about the completion of the project which is thereafter fit for residing etc. Therefore, we do not find any infirmity with the findings of the Ld. CIT(Appeals) and the same is hereby upheld. Thus, grounds raised in appeal by the assessee are dismissed. ITA No.443/PUN/2016 ( By Revenue) A.Y.2008-09 9. In Revenue‟s appeal Ground No. 1 and 2, the grievance of the Revenue is with regard to granting of deduction in respect of those 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... projects for the purpose of tax holiday under section 80-IB, and allowing deduction for re-development or reconstruction of existing building in slum areas. This section does not specifically provide area limit for the garden, the development plan roads, internal means of access, etc., in the housing project. Therefore, the same should conform to the project plan approved by the local authority in accordance with the regulations in force. Also, the area limit of the plot has to be construed with reference to the area of the site on which the housing project is constructed and not with reference to the demarcation of land done by the land development authority. 9. This circular thus gives a clear indication that though the section do not specifically provide for the Development Plan Roads or grant of other facilities etc., in a housing project but the same should conform to the project plan approved by the local authority. Our next reasoning is on the basis of above discussion that the limit of the plot has to be construed with reference to the area available on the site on which the housing project is to be constructed and not with reference to the demarcation of land. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat a portion of the land, in the present case it is 15 per cent, to be earmarked or set-apart or reserved or segregated out of the total and in question, minimum 1 acre, meant for the purpose of project in terms of rules/regulation of a local body, i.e., Pune Municipal Corporation, and without that segregation the project could not be sanctioned then that portion being mandatory for amenity purposes has to be taken as a part and parcel of the land available for the project. In the present case since the area available for the housing project was 4600 sq. mtr. that is more than 1 acre (4046 sq. mtr.) therefore the appellant is entitled for the claim of deduction under section 80-IB(10)(b) on this portion of land. We hold accordingly. The judgment quotes the CBDT Circular which states that This section does not specifically provide area limit for the garden, the development plan roads, internal means of access, etc., in the housing project. Therefore, the same should conform to the project plan approved by the local authority in accordance with the regulations in force. Also, the area limit of the plot has to be construed with reference to the area of the site on which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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