TMI Blog2021 (6) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... te Tribunal, Chennai, C Bench (for brevity, the Tribunal), the Revenue has filed the above appeal. 2. The above appeal was admitted on the following substantial questions of law: (i) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the open terrace area should not be included while computing the built-up area for the purpose of claiming deduction under Section 801B(10)? ? (ii) Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the time limit for completion of the eligible project should not be computed from the day on which the lay out was approved for the 1st time on 22.09.2003 but only from the date on which the building plan approval was obtained for the last time on 29.03.2007? (iii) Whether the Tribunal was correct in holding that the completion certificate issued by Pallikaranai Panchayat would satisfy instead of completion of certificate issued by Chennai Metropolitan Development Authority who had originally approved the plan? 3. When the appeal is taken up for hearing,Mr. M. Swaminathan, learned Senior Standing Counsel appearing for the appellant fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 paid an advance and developed the land and after negotiation with prospective buyers, he has sold the plots and constructed independent houses. Therefore, in our opinion, the approving a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 present case, at the cost of repetition, we have to state that the so called initial approval on 06.05.2005 was, in fact, obtained in respect of 3 prototype units. It will be mislettding, Vwe say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 section 80IB(10) cannot be denied on the ground that the. assessee is not the owner of the property, which he undertakes to develop nor can it be denied on the ground that the development agreement is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 Revenue and the decision rendered in T.C.A No. 581 of 2008,1186 of 2008 and 136 of 2009 the case of M/s. Ceebros Hotels Private Limited v. DCIT dated 19.10.2012 and accordingly, the order of the Tribunal on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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