TMI Blog2023 (2) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Voora Properties (P) Ltd.[ 2015 (3) TMI 456 - MADRAS HIGH COURT] is misplaced, inasmuch as, the ratio laid down in those cases has no application to the facts of the present case. We are of the considered opinion that the assessee is not eligible for deduction of profits derived from execution of housing projects Ruby and Emerald u/s 80IB(10) of the Act. We consider unnecessary to delve into the issue of violation of other conditions for availing the benefit of deduction u/s 80IB(10) of the Act. Since, we held in foregoing paragraphs that the respondent-assessee is not eligible for benefit of deduction u/s 80IB(10) for failure of assessee to satisfy the condition precedent. Appeal filed by the Revenue stands allowed. - ITA No.41/PUN/2020 - - - Dated:- 8-2-2023 - Shri Inturi Rama Rao, Accountant Member And Shri Partha Sarathi Chaudhury, Judicial Member For the Revenue : Shri Prashant Gadekar For the Assessee : Shri Suhas Bora Shri Sanket Bora ORDER PER INTURI RAMA RAO, AM : This is an appeal filed by the Revenue directed against the order of ld. Commissioner of Income Tax (Appeals)-11, Pune [ the CIT(A) ] dated 31.10.2019 for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ojects, namely, Ruby and Emerald Park and shown the sale proceeds of the said housing projects at Rs.1,64,25,71,071/- after claiming expenditure shown as profit of Rs.59,13,57,328/-. The same was claimed as deduction under the provisions of section 80IB(10) of the Act. The Factual background of the project is as under : One Mr. Rajeev Bhale of M/s Pratham Developers undertook the housing development project in Survey No.210/2 + 5, 211/2, Wakad, Pune on the area of land admeasuring more than 36 acres. He accordingly, applied for sanction of building plan which was approved by the Pimpri Chinchwad Municipal Corporation ( PCMC ) by BP/Lay-out/Wakad/22/03 dated 01.07.2003. The said Mr. Rajeev Bhale had incurred some expenditure upto financial year 2005-06. The same was disclosed in the application made before the Hon ble Settlement Commission of Income Tax Department. Out of the two plots, one plot was sold by Shri Rajeev Bhale and in respect of other plot, he entered into a joint venture agreement dated 31.10.2004. By virtue of this joint venture agreement, the respondent-assessee came into existence and proceeded with development of the housing project and submitted a revised plan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, directed the Assessing Officer to allow the deduction u/s 80IB(10) of the Act. As regards to the violation of the conditions for availing the benefit of deduction u/s 80IB(10) i.e. each residential unit exceeding 1500 st.ft. i.e. the size of residential unit is more than 1500 sq.ft., the ld. CIT(A) held that the terrace area shall not be included in the calculation of the built-up area of the flat of each residential unit on exclusion of terrace area each unit of block of residential unit is less than 1500 sq.ft. and regarding violation of clause (f), the ld. CIT(A) had upheld the disallowance in respect of the units which are allotted to more than one unit to a single individual or in the name of his family members. 7. Being aggrieved by the decision of the ld. CIT(A), the Revenue is in appeal before us in the present appeal. 8. The ld. CIT-DR submits that the ld. CIT(A) ought not to have considered the permission for building plan for construction of the housing projects, Ruby and Emerald were obtained only on 12.09.2005 ignoring the fact that the original approval was granted to the assessee on 01.07.2003. Taking us through the copies of the approval filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on 23.03.2010. Thus, the respondent-assessee had not satisfied the conditions precedent for availing the benefit of deduction u/s 80IB(10) of the Act. It is settled principle of law that exemption is available only on complying with certain conditions precedent under the respective Statute, those conditions have to be strictly complied with as held by the Hon ble Supreme Court in the case of CIT vs. Dilip Kumar (2018) 9 SCC 1 (FB)(SC). The principle that in the event of ambiguity in a provision in a fiscal statute, a construction favourable to concerned, shall not be applicable to construction of an exemption notification. In the background of the above settled legal principle, we examined the facts of the present case and on perusal of the assessment order as well as impugned order, we are unable to discern that the ld. CIT(A) had satisfied himself that the respondent-assessee had fulfilled the necessary conditions precedent for availing the deduction u/s 80IB(10) of the Act. We are perplexed by the approach adopted by the ld. CIT(A) in granting relief to the respondent-assessee without examining in detailed, the permissions granted by the PCMC and also without any discussions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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