TMI Blog2013 (6) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... upation/ completion certificate for 126 flats from the PMC as follow: Certificate Part-I dt. 13.02.2006 for 80 flats in buildings A B. Certificate Part-II dt. 06.05.2008 for 40 flats in building D. Certificate Part-III dt. 15.12.2008 for 40 flats in building C. 3. He observed that final completion/occupation certificate for the project was not issued by the PMC and as per the by-laws the assessee was required to handover 15% of the area to PMC for amenities. The Assessing Officer asked the assessee whether 15% of amenity area was handed over to the PMC and whether any additional FSI was sanctioned by the PMC in lieu of the above amenity area. In response to same, the assessee explained that the project was for 126 flats for which completion certificates were received by the assessee before the due date i.e., 31.03.2009 in accordance with the revised plan upto 25.05.2005. Further, in lieu of the 15% of the amenity area, i.e., 1200 sq.mtrs. it was explained that additional FSI amounting to saleable area of 18,700 sq.ft. was sanctioned by PMC vide commencement certificate dated 10.06.2009, which was subsequent to the date of 31.03.2009 which was the time limit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epresentative submitted that initial project was approved vide commencement certificate dated 28.04.2004 for 80 flats. Vide order dated 25.05.2004, whereby 46 flats were added and completion certificate for above 126 flats were received by the assessee before due date i.e., 31.03.2009 which was time limit for completion of project having 126 flats. Thus, completion was received on 13.02.2006 for buildings A and B for 80 flats. Second completion certificate was received on 06.05.2008 for 40 flats in building B and third completion certificate for remaining 6 flats in building C was received on 15.12.2008. Thus it was submitted that project of 126 flats was completed before due date, i.e., 31.03.2009 in accordance with the revised plan upto 25.05.2006. In lieu of 15% of the amenities area, i.e., 1200 sq.mtrs., it was explained that additional FSI amounting to saleable area of 18,700 sq.ft. was sanctioned by PMC vide commencement certificate dated 10.06.2009 which was subsequent to the date of 31.03.2009 which was the time limit for completion of the project having 126 flats. The Ld. Authorised Representative submitted that additional FSI was utilised by constructing 30 additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The basic issue that arises is with regard to a Developer developing and building a township and / or a residential complex, etc. In such schemes, a developer is required to provide all basic necessities within the townships such as park, green area, health care facilities, telephone booth, convenient store, shopping facilities, etc. There is a possibility that legal controversy may arise that a housing project mainly meant for residential areas will also have shopping areas. The department is likely to take a stricter view in the matter and reject the claim of the developer merely on the ground that there exists shopping centres within the residential complex though it may form a very insignificant portion of the total project area. However, going by the present day concept of township, facilities like school, garden play ground, etc are mandatory. The undertaking developing the housing project is likely to lose the benefit merely on the ground that any such housing project include the facilities enumerated or a public circular may be issued to ensure that such legal complications may not arise in future. On the alternative, it is recommended that suitable amendment be made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was the time limit for completion of project having 126 flats. All receipts and expenses are separately identifiable for initial 126 flats and subsequent 30 flats. So claim of the assessee has to be allowed with regards to 126 flats completed by 15.12.2008, i.e., before stipulated date i.e., 31.03.2009. 8. On the other hand, Ld. Departmental Representative submitted that as per Explation (i) to section 80IB(10), wherein approval in respect of housing project was sanctioned more than once, housing project shall be deemed to have been approved on date when building plan was first approved by the local authority. The assessee was required to complete housing project in totality and not 126 flats as claimed by the assessee. The assessee has surrendered 15% of the area for amenities to PMC in lieu of which additional FSI was sanctioned by PMC vide commencement certificate dated 10.06.2009. The commencement certificate clearly indicated that it was the revised sanction plan of the existing project in which additional 30 flats were being constructed by way of additional floor area in building C . Therefore, the Assessing Officer was right in concluding that assessee has revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucting 30 additional flats in building C . As per clarification issued on behalf of CBDT dated 04.05.2001, the additional housing project on existing housing project site could qualify as infrastructure facility under the provisions of section 80IB(10) provided it is undertaken by separate undertaking having separate books of accounts so as to ensure that correct profit could be ascertained for purpose of section 80IB(10). Deduction u/s. 80IB(10) is granted vis-a-vis project and correct profits are ascertainable with regards to profits from additional project. But here in case before us, it is not the case of assessee because assessee has not claimed deduction u/s. 80IB(10) with regard to additional flats raised in building C at the strength of additional FSI in lieu of surrender of 15% of amenities area to PMC. Taking the spirit of clarification of CBDT letter dated 04.05.2001, it is clear that additional construction at the strength of TDR qualify for claim of deduction in its own facts and circumstances. Same reasoning apply for additional FSI received in lieu of surrender of 15% of amenities area by the assessee. So the construction at the strength of additional FSI should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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