TMI Blog2021 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Appellate Tribunal was legally justified in holding that open terrace area should not be included in computation of built up area for purpose of deduction u/s 801B(10)? (ii) Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in holding that the time limit for completion of the eligible project should not be computed from the date (22.9.2003) on which the layout was approved for the first time, but from the date on which the building plan approval was obtained for the last time (29.3.2007)? (iii) Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in going by the completion certificate issued by the Pallikaranai Panchayat, without insisting on the completion certificate of the Chennai Metropolitan Development Authority (CMDA)? (iv) Whether on the facts and circumstances of the case, the Income Tax Appellate Tribunal was justified in holding that open terrace should not included in the computation of built up area for the purpose of deduction u/s 801B(10) when the same was included in the area sold to flat purchaser and further whether perversity of fact and law w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completed the housing project. The method adopted by the assessee is according to his business convenience and in our opinion, the housing project is on the size of plot of land haying more than 1 acre and therefore, on this account, the benefit available under section 801B(10) cannot be denied and the project constructed by the assessee is in 1 acre of land and we find, no reason to interfere with the order of the Id CIT(Appeals). Accordingly, the issue raised by the Revenue stands dismissed 22. In so far as CMDA- approval is concerned, in response to Assessing Officer's letter, vide letter No. 1v12/21841/2011 dated 26.1212011 [paper book page No. ]85 1861, the Assessing Officer has received a letter from the Member-Secretary, CMDA, wherein it was expressed an opinion that if a housing project is 'made in a already CMDA approved layout, than in such case, the Competent Authority for issue of planning permission and building permit for independent buildings in each plot under ordinary building category is Pallikaranai Town Panchayat previously and Chennai Corporation now. In the case of the assessee, the assessee had entered into an agreement with the landowners and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 80IB(10) . By following the decision of the Hon'ble Bombay High court in the case of CIT v. Vandana Properties 353 ITR 36 (Born). The Hon'ble Bombay High Court has observed in .para 22 in respect of Explanation to section 80IB(10)(a), which as introduced w.ef 01.04.2005 that what the said Explanation contemplates is that where the approval in respect of housing project is granted more than once, then, that 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. For example, in respect of a housing project, the assessee may seek amendment of the building plan at several stages of the construction and the same may be approved. In sucka, case, the Explanation provides that for the purposes of section 80IB(10) the housing project shall be deemed to have been approved on the date on which the first approval was granted by the local authority. Thus, the Explanation to section 80IB(10)(a) refers to approval granted to the same housing project more than once and the said Explanation would not apply where the approval is granted to different housing projects . In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rk In this case, the assessee has' not taken any simple construction work. The assessee has conceived the project, developed all necessary 'infrastructure facilities and constructed independent houses and completed the project well within the time as stipulated under the Act. The Id., CIT(Appeals) has dealt with this issue at page Nos. 29 to 32 ' elaborately in support of various case law and also held that the project executed by the assessee was not of the nature of works contract and the assessee undertook investment - ,risk. Therejb re,. we .find no infirmity in the order of the Id. CIT(Appeals) on this issue and the ground raised by the Revenue is dismissed. 24. In the assessment order, one of the objections raised by the Assessing Officer is that the sale deed was not registered in the name of the assessee and therefore, the assessee was not owner of the land and not eligible for deduction under section 801B(10). The Id. DR has also raised this objection at the time of hearikg. This aspect was considered by the Bombay Bench of ITAT in the case of Essem Capital Markets Ltd. V. ITO (2011) TIOL 196 (ITAT Mum), wherein the Tribunal held that deduction. under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is nothing built and it is an open space, such space cannot be included in the built up area without a specific provision in that regard. Therefore, he has held that open terrace is not to be included in the built up area and accordingly, the claim of the assessee was to be allowed. At the tune of argument, the Id. DR has pointed that open terrace should be included in the built up are and the same was considered by the Tribunal in the case of Sanghvi Doshi Enterprise, the same very 1TAT order has been followed by the Assessing Officer. We find that the same issue has came up for consideration before the Hon'ble Jurisdictional High Court in the case of Sanghvi and Doshi Enterprise 255 CT]? (Mad) 156, wherein the Honsble High Court has observed that open terrace area could not be the subject matter of inclusion as built up area to deny the benefit under section of the Act. Further, the Honsble Jurisdictional High Court in another case C'IT v. Mahalakshmi Housing (supra), the Hon'ble High Court has. observed that as per the issue in respect of inclusion of open terrace area within the built up area is concerned, the Court has already held the issue against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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