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TMI Blog2023 (2) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... .2012 in violation of section 80IB(10) which requires the entire project to be completed before 31.03.2012. 3. On the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in allowing the claim u/s. 80IB(10) of the Act on partial completion of the housing project holding that the assessee was entitled to claim deduction u/s. 80IB(10) in respect of eligible units without appreciating the facts that the housing project was approved by local authority on 26.03.2007 for 8 buildings namely buildings A, B, C, D, E, F, G, & H and that the completion certificate for building B, C, D, E, F, G, H was granted by the Pune Municipal Corporation on 30.03.2012. However, on site visit at the relevant period of time revealed that building A was still not complete and buildings B, C, & D were partly complete. 4. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not appreciating the fact that if the conditions set in section 80IB(10) are satisfied, then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to a part of the project. 5. The appellant prays to be allowed to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer completed the assessment by disallowing the claim for deduction of Rs.33,74,41,473/-. 5. Being aggrieved by the above assessment order, an appeal was filed before the ld. CIT(A) contending that the PCMC authorities had granted completion certificate on 31.03.2012 with reference to two applications made by the assessee dated 11.01.2012 and 20.03.2012. The respondent-assessee applied for occupation certificate for buildings E, F, G & H on 11.01.2012 and for buildings B, C, E & D on 20.03.2012. It is an admitted fact that the building A was not completed and the buildings B, C, E & D were partly completed, however, proportionate deduction in respect of projects completed before 31.03.2012 was granted placing reliance on the decision of the Hon'ble Madras High Court in the case of Viswas Promoters Pvt. Ltd. vs. CIT, 81 DTR 68 (Madras), the decision of the Hon'ble Gujarat High Court in the case of CIT vs. B. M. And Brothers, 86 CCH 194 (Gujarat), the decision of the Coordinate Bench of this Tribunal in the case of Runwal Multi Housing Pvt. Ltd. vs. ACIT (ITA No.1015, 1016 & 1017/PUN/2011) and also the decision of the Hon'ble Bombay High Court in the case of CIT vs. Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the decision of the ld. CIT(A), the Revenue is in appeal before us in the present appeal. 8. The ld. CIT-DR taking us through the findings of the Assessing Officer submits that the buildings E, F, G & H were completed as on 31.03.2012, even buildings A, B, C & D were not completed by the 31.03.2012. He further submits the fact that the respondent-assessee could not produce the completion certificate issued by the Municipal Corporation during the visit made by the Assessing Officer establishes that the there was no completion certificate as on 31.03.2012. Thus, he submits that the necessary conditions precedent for availing the deduction u/s 80IB(10) were not fulfilled and the ld. CIT(A) ought not to have directed the Assessing Officer to allow the deduction u/s 80IB(10), inasmuch as, without satisfying himself that the buildings were completed as on 31.03.2012, as well as without satisfying himself that necessary eligible conditions as prescribed under the said provisions of the Act stood satisfied. He further submits that the principle of proportionate basis cannot be applied in a case where the housing project had not satisfied the eligibility conditions prescribed under the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing projects approved before the 31st day of March, 2008 by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from such housing project if,- (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998 and completes such construction,- (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004 but not later than the 31st day of March, 2005, within four years from the end of the financial year in which the housing project is approved by the local authority; (iii) in a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be clear that in order to claim the benefit of deduction u/s 80IB(10) an assessee has to satisfy the following conditions :- "(a) The project has to be approved by the local authority before 31-3-2007. (b) The project is constructed on a plot of land having a minimum area of one acre. (c) The built-up area of each residential unit should not exceed 11,500 sq. ft. in the cities of Delhi and Mumbai (including areas falling within 25 Kms. Of Municipal limits of these cities) and 1,500/- sq. ft. in other places. (d) The built up area of the shops and other commercial establishments included in the housing project should not exceed 5% of the total built up area of the housing project or 2,000 sq. ft. whichever is less. (e) The project has to be completed within four years from the end of the financial year in which the project is approved by the local authority." 13. In the present case, the respondent-assessee sought the approval of building plan, housing project and land admeasuring 25,340 sq.mtrs. to construct 8 buildings and the said approval was granted on 29.03.2007. The housing project was required to be completed on or before 31.03.2012 in order to avail the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act enumerated in the earlier paragraphs of this order. It is settled principle of law that if exemption is available 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). 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. Therefore, we are of the considered opinion that the order of the ld. CIT(A) suffers from voice of perversity and it is bereft of factual discussion on facts of the case and also failed to construe the provisions of relevant section in accordance with settled legal principles discussed above. Ordinarily, we would have remanded the matter back to the file of the Assessing Officer to examine the allowability of deduction u/s 80IB(10) in respect of buildings E, F, G & H, but even before us th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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