Kewal Real Estate Developers Pvt. Ltd., Pune V. Deputy Commissioner of Income-tax, Circel-14, Pune

CO 111/PUN/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3505 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-12-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 22-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS NIRUPAMA KOTRU
• Assessee Lawyers: RAJENDRA AGGARWAL
• Section: 143(3); 80IB

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.495/PUN/2016 / ASSESSMENT YEAR : 2011-12 DEPUTY COMMISSIONER OF INCOME TAX , CIRCLE 14, PUNE. . APPELLANT V/S KEWAL REAL ESTATE DEVELOPERS PVT., LTD., KUMAR CAPITAL, 1 ST FLOOR 2413, EAST STREET, PUNE 411001. PAN : AAACK7491G. RESPONDENT !. / CO NO.111/PUN/2017 (ARISING OUT OF ITA NO.495/PUN/2016 / ASSESSMENT YEAR : 2011-12 KEWAL REAL ESTATE DEVELOPERS PVT., LTD., KUMAR CAPITAL, 1 ST FLOOR 2413, EAST STREET, PUNE 411001. PAN : AAACK7491G. . CROSS-OBJECTOR. V/S DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 14, PUNE. . APPELLANT IN THE APPEAL. ASSESSEE BY : SHRI RAJENDRA AGGARWAL REVENUE BY : MRS. NIRUPAMA KOTRU. / ORDER PER ANIL CHATURVEDI, AM : 1. THE PRESENT APPEAL FILED BY THE REVENUE AND THE C.O. FILE D BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER OF COMM ISSIONER OF / DATE OF HEARING : 14.12.2017 / DATE OF PRONOUNCEMENT: 12.01.2018 2 INCOME TAX (A) 7, PUNE DT.18.01.2016 FOR THE ASSESSME NT YEAR 2011-12. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER:- ASSESSEE IS A COMPANY STATED TO BE IN THE BUSINESS OF BUILDERS & DEVELOPERS. ASSESSEE FILED ITS RETURN OF INCOME FO R AY 2011-12 ON 30.9.2011 DECLARING TOTAL INCOME OF RS.3,89,68,88 6/- THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER THE A SSESSMENT WAS FRAMED U/S 143(3) VIDE ORDER DATED 20.03.2014 AND T HE TOTAL INCOME WAS DETERMINED AT RS.11,66,79,360/-. AGGRIEVED BY T HE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A ), WHO VIDE ORDER DATED 18.01.2016 (IN APPEAL NO.PN/CIT(A)- 7/CIR11(1)/193/2014-15) GRANTED SUBSTANTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), REVENUE IS NOW IN APPEAL BEFORE US. THE GROUNDS RAISED BY THE REVENUE IN A PPEAL READS AS UNDER : 1. THE ORDER OF THE ID. COMMISSIONER OF INCOME-TAX (AP PEALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE . 2. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN D E LETIN G TH E DISALLOWANCE MADE BY THE ASSESSING OFFICER OF THE ASSESSEE ' S CLAIM OF DEDUCTION OF RS . 7,01,61,871 / - IN RESPECT OF THE HOUSING PROJ E CT 'KUMA R PRIMAVERA' INSTEAD OF CONFIRMING THE SAID DISALLOWANCE . 3. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN HOLDING TH AT BUILDING NO . A-I AND A-2 CONSTITUTED A SEPARATE ' HOUSING PROJ EC T ' INDEPENDENT OF BUILDINGS NO . A - 3 TO A-8 AND FURTH E R THA T AS T H E BUILDINGS A - 1 AND A-2 HAD BEEN COMPL E TED BEFORE 31 . 03 . 2009, THE ASSESS E E WAS ENTITL E D T O DEDUCTION U/S 80IB(10). 4. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROS SL Y ERRED IN FA I L I N G TO APPRECIATE THAT BUILDINGS A-3 TO A-8 FORMED PART OF THE SAME ONE HOUSIN G PROJECT WHICH INCLUDED BUILDINGS A-1 TO A-2 ; AND AS THE ASSESS EE HAD N OT COMPLETED BUILDINGS A-3 TO A-8 BEFORE 3 31 . 03.2009, IT W A S NOT ENTITL E D TO DEDUCTION U/S 80IB (10) IN RESPECT OF THE 'KUMAR PRIMAVERA' PROJECT. 5. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROS SLY ERRED FAILING TO APPRECIATE TH A T THE PLAN IN RESPECT OF ' BUILDINGS A-3 TO A- 8 WERE A MER E REVISION OF THE ORIGINAL PLAN AND FURTHER THAT BUILDINGS A-3 TO A-8 W ER E M E R E L Y IN THE NATURE OF ADDITIONAL CONSTRUCTIONS ON THE SAME PLOT OF 24902.715 SQ . MTRS. IN RESPECT OF WHICH THE ORIGINAL PLAN HAD BEEN SANCTION E D AND TH E ORIGINAL COMM E NC E M E NT C E RTIFICATE HAD B EE N ISSU E D ON 02.02.2005 . 6. THE LD. COMMISSION E R OF INCOME-TAX(APPEALS) GROSSL Y ERRED IN FAILIN G TO CONSIDER THAT FOR THE PURPOSE OF COMPUTING TH E LIMIT A TION P E RIOD U / S 80IB(10) , THE DATE OF FIRST APPROVAL HAS TO BE TAKEN INTO ACCOUNT AND AS P E R EXPLANATION (I) TO SEC.80IB(10) , SUBSEQUENT APPROVALS , IF AN Y , WOULD DATE BA C K TO THE FIRST APPROVAL ; AND THAT BY APPL Y ING THE SAID EXPLANATION THE ASS E SS EE HAD FAILED TO COMPLETE THE CONSTRUCTION OF BUILDING A-3 TO A-8 B E FOR E 31 . 03.2009 . 7. THE LD . COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED I N HOLDING TH A T SEPARATE RULE OF COMPLETION HAD TO BE APPLIED TO BUILDINGS A-3 TO A-8 AS DISTINGUISHED FROM A - 1 AND A-2 WHEREAS, IT IS UNAMBIGUOUS FROM SE C TION 80IB(10) THAT THE LIMITATION FOR CONSTRUCTION HAS TO B E COMPUT E D WITH REFERENCE TO THE APPROVAL GIVEN TO THE ' PROJECT' AND NOT THE APPROVAL GIVEN F O R A 'BUILDING'. 8. THE LD. COMMISSIONER OF INCOME-TAX(APP E ALS) GROSSL Y E RR E D IN D E CIDIN G TH E APPEAL WITHOUT APPL Y ING EXPLANATION (I) OF SECTION 80I8(10) TO TH E C AS E A T HAND AND ALSO BY INTERPRETING RULE OF COMPLETION IN A MANNER NOT PROVID E D IN NOR PERMITTED BY, THE STATUTORY PROVISIONS. 9. FOR THESE AND SUCH OTHER GROUNDS AS MY BE URGED AT THE TIME OF HEARING, TH E ORDER OF THE LD. COMMISSIONER OF INCOME-TAX(APPEALS ) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3. ASSESSEE ALSO FILED CROSS-OBJECTIONS AND THE CROSS- OBJECTIONS RAISED BY THE ASSESSEE IN C.O.NO.111/PUN/2017 READS AS UNDER : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LEARNED AO : ELIGIBILITY OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 1. E RR E D IN CHALLENGING THE ORDER OF CIT(A) ON ELIGIBILITY OF THE PROJECT 'KUMAR PRIMAVERA - PHASE II' U N D ER SECTION 80IB(10) OF THE ACT, BY CONTENDING THAT, BUILDINGS A-1, A-2 AND BUI LDINGS A-3 TO A- 8 DO NOT CONST I TUTE TWO SEPARATE PROJECTS AND ARE PART OF ONE SINGLE PROJECT, THEREBY NOT EL I GIBLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, (AS PROJECT NOT COMPLETED WIT HIN THE TIME LIMIT OF S ECTION 80IB(10) OF THE ACT 4 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE TH E LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 7(THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)): PRE-PONMENT OF REVENUE 2. WITHOUT PREJUDICE TO THE DEPARTMENT'S APPEAL , ERRED IN UPHOLDING ACTION OF THE LEARNED AO WITH RESPECT TO PRE-PONMENT OF REVENUE ON 3 FLATS ON WHICH THE RESPONDENT HAD RECE IVED ONLY ADVANCES OF RS . 74,50,500 AND SALE WAS NOT CONCLUDED AS PER THE METHOD OF ACCOUNTING CONSISTENTLY FOLLOWED BY THE R ESPONDENT. 3.1 SINCE THE GROUNDS RAISED BY THE REVENUE AND ASSESS EE ARE INTER-CONNECTED, BOTH THE APPEALS ARE CONSIDERED TOGETHER. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS AO NOTICE D THAT ASSESSEE HAS CLAIMED DEDUCTION OF RS.7,01,61,871/- U/S 80IB(10) OF THE ACT. HE NOTICED THAT THE ISSUE WITH RESPE CT TO 80IB(10) OF THE ACT ALSO AROSE IN ASSESSEES OWN CASE IN A.YS 2008-09 AND 2010-11 WHEREIN THE BASIC ISSUE WAS WHETHE R PHASE I (BUILDING A-1 AND A-2) AND PHASE II (BUILDING A-3 TO A-8) OF THE ASSESSEES PROJECT KUMAR PRIMAVERA SHOULD BE TREATE D AS ONE PROJECT OR TWO SEPARATE PROJECTS. IT WAS ALSO NOTED T HAT THE DATE OF INITIATION OF THE PROJECT WAS 02.02.2005. HE NOTED THAT IN EARLIER YEARS THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT WAS DENIED TO THE ASSESSEE FOR THE REASON THAT ASSESSEE H AD VIOLATED THE CONDITION OF TIMELY COMPLETION OF PROJECT BEFORE 31.03.2 009 AND THEREFORE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) O F THE ACT. AO NOTED THAT AGAINST THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD.CIT(A), WHO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE AND THAT AGAINST THE ORDER OF LD CIT(A), REVEN UE HAD FILED APPEAL BEFORE HONBLE ITAT AND THE DECISION OF ITAT W AS AWAITED. HE THEREFORE, FOLLOWING THE ORDER OF HIS PREDECESSO R, DENIED THE CLAIM OF DEDUCTION. WHEN THE MATTER WAS CAR RIED BY 5 ASSESSEE BEFORE LD.CIT(A), LD.CIT(A) FOLLOWING THE ORDER OF HIS PREDECESSOR DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF LDCIT(A), REVENUE IS NOW IN APPEAL BEFORE US AND ASSESSEE HAS ALSO FILED CROSS-OBJECTION. 6. BEFORE US, LD DR TOOK US THROUGH THE ORDER OF AO AND SUPPORTED THE ORDER OF AO. LD AR ON THE OTHER HAND POINTED OUT THAT THE FACTS IN THE YEAR UNDER CONSIDERATION ARE IDENT ICAL TO THAT OF EARLIER YEARS AS HAS BEEN ACCEPTED BY THE LOWER AUTH ORITIES. HE FURTHER SUBMITTED THAT AGAINST THE ORDER OF LD.CIT(A) IN E ARLIER YEARS, REVENUE HAD CARRIED THE MATTER BEFORE HONBLE IT AT. THE HONBLE ITAT VIDE ORDER DATED 21.09.2015 IN ITA NOS.20 28 & 2218/PUN/2012 FOR A.YS 2008-09 AND 2009-10 HAS DECIDED THE ISSUE IN FAVOUR OF THE ISSUE. HE PLACED ON RECORD THE COPY OF THE AFORESAID ITAT ORDER AND POINTED TO THE RELEVANT FINDINGS. HE THEREFORE SUBMITTED THAT SINCE THE FACTS ARE IDENTICAL TO THAT OF EARLIER YEARS, THE APPEAL OF REVENUE NEEDS TO BE DISMISSED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO DENIAL OF DEDUCTION U/S 80IB(10) OF THE ACT. WHILE D ENYING THE CLAIM OF DEDUCTION, AO HAD NOTED THAT THE FACTS IN THE YEA R ARE IDENTICAL TO THAT OF EARLIER YEARS AND THEREFORE FOLLOWING TH E ORDER FOR EARLIER YEARS, DENIED THE CLAIM OF DEDUCTION. HE ALSO NOTE D THAT FOR EARLIER YEARS, LD CIT(A) HAD DECIDED THE ISSUE IN FAVOUR OF ASSESSEE AND THE REVENUE HAD NOT ACCEPTED THE ORDER OF CIT(A) 6 AND HAD PREFERRED APPEAL BEFORE HONBLE ITAT. WHEN THE MATTER WAS CARRIED BEFORE LD CIT(A), LD CIT(A) ALSO NOTED THAT TH E FACTS IN THE YEAR ARE IDENTICAL TO THAT OF EARLIER YEARS AND H E THEREFORE FOLLOWING THE ORDER OF HIS PREDECESSOR, DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. WE FURTHER FIND THAT THE CO-ORDINATE BENCH O F THE TRIBUNAL VIDE ORDER DATED 15.01.2016 WHILE DECIDING THE ISS UE IN A.Y 2010-11 HAD FOLLOWED THE ORDER OF TRIBUNAL FOR A.YS. 20 08-09 AND 2009-10 AND DECIDED THE ISSUE IN FAVOUR OF ASSESSEE BY OBSERVING AS UNDER: 6. THE CONTENTION OF THE ASSESSEE IS THAT THE BUIL DINGS A1 AND A2 ARE IN PHASE-I AND BUILDINGS A3 TO A8 ARE PART OF P HASE-II OF THE PROJECT. THE COMPLETION CERTIFICATE IN RESPECT OF P HASE-I WAS OBTAINED ON 05-09-2008, WELL BEFORE LAST DATE ON WH ICH THE PROJECT SHOULD BE COMPLETED I.E. 31-03-2009. AS REGARDS BUI LDING A3 TO A8 IN PHASE-II THE COMPLETION CERTIFICATE WAS OBTAINED IN MARCH, 2011 AND AS PER THE PROVISIONS OF ACT, THE LAST DATE FOR OBTAINING COMPLETION CERTIFICATE WAS 31-03-2012. THE REVENUE HAS STRONGLY OBJECTED TO THE BIFURCATION OF THE PROJECT IN PHASE -I AND PHASE-II. 7. THERE IS NO DISPUTE ABOUT THE DATE OF COMMENCEME NT AND COMPLETION OF THE PROJECT. IT IS ALSO AN UNDISPUTED FACT THAT THE PROJECT KUMAR PRIMAVERA FLOATED BY THE ASSESSEE C OMPLIES WITH ALL THE CONDITIONS ENVISAGED IN SECTION 80IB(10) WI TH RESPECT TO AREA OF PLOT, SIZE OF EACH FLAT, ETC. THE ONLY DISP UTE IS WHETHER THE ASSESSEE CAN BIFURCATE THE PROJECT IN TWO PARTS ON THE BASIS OF COMMENCEMENT CERTIFICATE AND CLAIM DEDUCTION U/S. 8 0IB(10) ON THE SAME BY TREATING THEM AS SUB-PROJECTS UNDER THE LARGER PROJECT. 8. THE COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED THE CLAIM OF ASSESSEE BY HOLDING AS UNDER: 3.3. . IT IS AN ESTABLISHED POSITION OF LAW N OW AS PER VARIOUS DECISIONS OF VARIOUS TRIBUNALS INCLUDIN G THE PUNE TRIBUNAL, THAT THE 'PROJECT' IS NOT DEFINED IN THE INCOME TAX ACT AND THEREFORE, IT HAS BEEN INTERPRETED LIBE RALLY ON THE BASIS OF COMMERCIAL CONSIDERATIONS AND COMMONLY UNDERSTOOD VIEWS. THE CLARIFICATION ISSUED BY THE C BDT VIDE DATED 4.5.2001 HAS BEEN OFTEN CONSIDERED FOR T HIS INTERPRETATION. AS PER THE LETTER F. NO. 205/3/2001 /ITA-II DATED 4.5.2001 IT HAS BEEN STATED THAT 'THE ADDITIO NAL HOUSING PROJECT ON EXISTING HOUSING PROJECT SITE CA R QUALIFY AS INFRASTRUCTURE FACILITY U/S 10(23G) AND 80IB(10) , PROVIDED IT IT TAKEN UP BY A SEPARATE UNDERTAKING H AVING SEPARATE BOOKS OF ACCOUNTS SO AS TO ENSURE THAT COR RECT PROFIT CAN BE ASCERTAINED FOR THE PURPOSE OF 80IB A ND ALSO TO IDENTIFY RECEIPTS AND REPAYMENTS OF LONG TERM FI NANCES 7 UNDER THE PROVISIONS OF SEC. 10(23G), SEPARATE FINA NCING ARRANGEMENTS AND ALSO, IF IT IS SEPARATELY FULFILS ALL OTHER STATUTORY CONDITIONS LISTED IN SECTION 10(23G) AND 8018(10). WITH REGARD TO YOUR QUERY REGARDING THE DEFINITION OF HOUSING PROJECT IT IS CLARIFIED THAT ANY PROJECT WH ICH HAS BEEN APPROVED BY A LOCAL AUTHORITY AS A HOUSING PRO JECT SHOULD BE CONSIDERED ADEQUATE FOR THE PURPOSE OF SE CTION 10(23G) AND 80IB(10). IN VIEW OF THIS AND THE FACT THAT NO SPECIFIC DEFINITION EXISTS IN THE STATUTE THE COURT S HAVE CONSIDERED 'PROJECT' TO BE DEPENDENT ON COMMENCEMEN T, INDEPENDENT FULFILLMENT OF CONDITIONS BUILDING-WISE ETC. IN DIFFERENT JUDGMENTS VIZ. DCIT VS. BRIGADE ENTERPRIS ES (BANG) 119 TTJ 269; SAROJ SALES CORPORATION VS. ITO (MUM) 115 TTJ 485; SUBHASH BAFNA VS. ITO (ITAT, PUNE); AP OORVA PROPERTIES PVT. LTD. (ITAT, PUNE); VANDANA PROPERTI ES 128 TTJ 89 (MUM) ETC. IN THIS CASE, IT IS A FACT THAT T HE PLOT AREA IS 24,902.715 SQ. MTRS. AND IN THE FIRST COMMENCEME NT CERTIFICATE DATED 2.2.2005, ONLY TWO BUILDINGS WERE APPROVED ALONG WITH LAYOUT FOR ROAD, OPEN AREA ETC. AND THERE WAS DEFINITELY NO MENTION OF CONSTRUCTION OF OTHER BUILDINGS. AS PER THIS CERTIFICATE THE APPELLANT HA S TOTAL AREA AVAILABLE FOR CONSTRUCTION AT 20,694.905 SQ. MTRS. FOR PERMISSIBLE TENEMENTS OF 655 NUMBERS, OUT OF WHICH ONLY 56 WERE PROPOSED IN THE FIRST COMMENCEMENT CERTIFIC ATE CONSUMING A TOTAL AREA OF 3479.28 SQ. MTRS. THIS WA S SUBSEQUENTLY REVISED TO MAKE TWO ADDITIONAL FLOORS IN BOTH THESE BUILDINGS (P+9). THERE IS NO DISPUTE THAT ALL THE CONDITIONS ARE SATISFIED IF BUILDINGS A-1 AND A-2 A RE CONSIDERED AS PART OF ONE PROJECT SEPARATE FROM THE REMAINING BUILDINGS. THEREFORE, IT IS APPARENT THAT THE APPELLANT IS ELIGIBLE FOR ITS CLAIM FOR DEDUCTION B Y TREATING BUILDING A-1 AND A-2 AS A SEPARATE HOUSING PROJECT. THE JUDGMENTS OF APOORVA PROPERTIES AND ESTATE PVT. LTD ., BRAHMA ASSOCIATES VS. JCIT, DCIT VS. BRIGADE ENTERP RISES PVT. LTD., SAROJ SALES ORGANIZATION VS. ITO, VANDAN A PROPERTIES VS. ACIT SUPPORT THE ABOVE CLAIM. THE CLARIFICATION ISSUED BY THE CBDT REFERRED TO ABOVE AND RELIED UPON BY THE APPELLANT ALSO SUPPORTS THE ABOV E VIEW. THEREFORE, THE CLAIMS OF THE APPELLANT RAISED VIDE GROUND NO. 1 AND 2 ARE ALLOWED. 9. IT IS EVIDENT FROM DOCUMENTS THAT ORIGINALLY THE ASSESSEE SOUGHT APPROVAL OF BUILDINGS A6 AND A7, SUBSEQUENTLY RENAM ED AS A1 AND A2 ON 02-02-2005. IT WAS AFTER THE TIME LAG OF 18 MONTHS THAT THE APPROVAL OF OTHER SIX RESIDENTIAL BUILDINGS WAS OBTAINED BY THE ASSESSEE ON 08-09-2006 FROM PMC, WHILE SEEKING INIT IAL APPROVAL THERE WAS NO MENTION OF OTHER BUILDINGS. THE OBSERV ATION OF THE ASSESSING OFFICER THAT THE SUBSEQUENT APPROVAL BY P MC IS NOT FRESH APPROVAL BUT REVISED APPROVAL IN OUR OPINION DOES NOT CARRY WEIGHT. THE BUILDING PLAN HAS BEEN REVISED FOR BUIL DINGS A1 AND A2 ONLY. AS REGARDS OTHER BUILDINGS I.E. A3 TO A8 I S CONCERNED THE BUILDING PLAN WAS APPROVED FOR THE FIRST TIME. IT IS NOT DISPUTED BY THE REVENUE THAT BUILDINGS A1 AND A2 IN PHASE-I WERE COMPLETE AND OCCUPATION CERTIFICATE WAS GRANTED BY THE PMC IN RESPECT OF SAID BUILDINGS ON 05-09-20 08. IN SO FAR AS BUILDINGS A3 TO A8 IN PHASE-II ARE CONCERNED, TH E COMPLETION CERTIFICATE IN RESPECT OF ALL THE FLATS COMPRISING IN SAID BUILDINGS WERE GRANTED BY PMC UP TO MARCH, 2011, WHEREAS, THE LAST DATE 8 FOR OBTAINING COMPLETION CERTIFICATE WAS 31-03-2012 . THUS, THE ASSESSEE HAD OBTAINED COMPLETION CERTIFICATES WELL WITHIN THE TIME FRAME MENTIONED IN THE PROVISIONS OF SECTION 80IB(1 0) OF THE ACT IN RESPECT OF ALL THE BUILDINGS IN PHASE-I AND PHASE-I I. 10. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CI T VS. VANDANA PROPERTIES (SUPRA) HAS HELD THAT DEDUCTION U/S. 80IB(10) SHALL BE ALLOWED TO A HOUSING PROJECT CONSTRUCTED O N A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE IRRESPECTIVE OF THE FACT WHETHER ANY OTHER HOUSING PROJECTS ARE EXISTING ON THE SAID PLOT OR NOT. THE RELEVANT EXTRACT OF THE JUDGMENT IS REPRODUCED HERE -IN-UNDER: 27. MOREOVER, PLAIN READING OF SECTION 80IB (10) D OES NOT EVEN REMOTELY SUGGEST THAT THE PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE MUST BE VACANT. THE SAID SECTION A LLOWS DEDUCTION TO A HOUSING PROJECT (SUBJECT TO FULFILLI NG ALL OTHER CONDITIONS) CONSTRUCTED ON A PLOT OF LAND HAVING MI NIMUM AREA OF ONE ACRE AND IT IS IMMATERIAL AS TO WHETHER ANY OTHER HOUSING PROJECTS ARE EXISTING ON THE SAID PLO T OF LAND OR NOT. IN THESE CIRCUMSTANCES, CONSTRUING THE PROV ISIONS OF SECTION 80IB (10) BY ADDING WORDS TO THE STATUTE IS WHOLLY UNWARRANTED AND SUCH A CONSTRUCTION WHICH DEFEATS T HE OBJECT WITH WHICH THE SECTION WAS ENACTED MUST BE REJECTED. 28. APART FROM THE ABOVE, THE CENTRAL BOARD OF DIRE CT TAXES (CBDT) BY ITS LETTER DATED 4TH MAY 2001 ADDRESSED T O THE MAHARASHTRA CHAMBER OF HOUSING INDUSTRY HAS STATED THUS: THE UNDERSIGNED IS DIRECTED TO REFER TO YOUR LETTE R NO.MCHI:RSA:M:388/19799/3 DATED 1ST JANUARY 2001 AND TO STATE THAT THE ADDITIONAL HOUSING PROJECT ON EXISTING HOUSING PROJECT SITE CAN QUALIFY AS INFRASTRUCTURE FACILITY UNDER SECTION 10(23G) AND 80IB (10) PROVIDED IT IS TAKEN UP BY A SEPARATE UNDERTAKING, HAVING SEPARATE BOOKS OF ACCOUNTS, SO AS TO ENSURE THAT CORRECT PROFITS CAN BE ASCERTAINED FOR THE PURPOSE OF SECTION 80IB AND ALS O TO IDENTIFY RECEIPTS AND REPAYMENTS OF LONG TERM FINAN CES UNDER THE PROVISIONS OF SECTION 10(23G), SEPARATELY FINANCING ARRANGEMENTS AND ALSO, IF IT SEPARATELY F ULFILLS ALL OTHER STATUTORY CONDITIONS LISTED IN SECTIONS 10(23 G) AND 80(B(10). WITH REGARD TO YOUR QUERY REGARDING THE D EFINITION OF HOUSING PROJECT, IT IS CLARIFIED THAT ANY PROJEC T WHICH HAS BEEN APPROVED BY A LOCAL AUTHORITY AS A HOUSING PRO JECT SHOULD BE CONSIDERED ADEQUATE FOR THE PURPOSE OF SE CTION 10(23G) AND 80IB(10)' 29. FROM THE AFORESAID LETTER OF CBDT, IT IS CLEAR THAT FOR THE PURPOSES OF SECTION 80IB(10) IT IS NOT THE MANDATE OF THE SECTION THAT THE HOUSING PROJECT MUST BE ON A VACAN T PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE AND THAT WHERE A NEW HOUSING PROJECT IS CONSTRUCTED ON A PLOT OF LAN D HAVING MINIMUM AREA OF ONE ACRE BUT WITH EXISTING HOUSING PROJECTS WOULD QUALIFY FOR SECTION 80IB(10) DEDUCTI ON. EVEN OTHERWISE, THE ARGUMENT OF THE REVENUE DOES NOT STA ND TO REASON BECAUSE, IN THE CITY OF MUMBAI WHERE THERE I S ACUTE SPACE CRUNCH, IT IS DIFFICULT TO FIND A VACANT PLOT HAVING MINIMUM AREA OF ONE ACRE AND EVEN IF FEW SUCH PLOTS ARE 9 EXISTING IT CANNOT BE SAID THAT SECTION 80IB (10) D EDUCTION WAS INTENDED TO GIVE BENEFIT ONLY TO THE UNDERTAKIN GS WHO CONSTRUCT HOUSING PROJECTS ON THOSE FEW PLOTS. THER EFORE, IT IS CLEAR THAT ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE, THERE CAN BE ANY NUMBER OF HOUSING PROJECTS A ND SO LONG AS THOSE HOUSING PROJECTS ARE APPROVED BY THE LOCAL AUTHORITY AND FULFILL THE CONDITIONS SET OUT UNDER SECTION 80IB(10), THE DEDUCTION THERE UNDER CANNOT BE DENIE D TO ALL THOSE HOUSING PROJECTS. SECTION 80IB(10) WHILE SPEC IFYING THE SIZE OF THE PLOT OF LAND, DOES NOT SPECIFY THE SIZE OR THE NUMBER OF HOUSING PROJECTS THAT ARE REQUIRED TO BE UNDERTAKEN ON A PLOT HAVING MINIMUM AREA OF ONE ACR E. AS A RESULT, SIGNIFICANCE OF THE SIZE OF THE PLOT OF L AND IS LOST AND, THEREFORE, THE ASSESSEE SUBJECT TO FULFILLING OTHER CONDITIONS BECOMES ENTITLED TO SECTION 80IB(10) DED UCTION ON CONSTRUCTION OF A HOUSING PROJECT ON A PLOT HAVI NG AREA OF ONE ACRE, IRRESPECTIVE OF THE FACT THAT THERE EXIST OTHER HOUSING PROJECTS OR NOT. IN THESE CIRCUMSTANCES, TH E DECISION OF THE TRIBUNAL IN REJECTING THE CONTENTION OF THE REVENUE REGARDING THE SIZE OF THE PLOT CANNOT BE FAULTED. 11. THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MUDHIT MADANLAL GUPTA VS. ACIT (SUPRA) GRANTED DEDUCTION U /S. 80IB(10) TO THE ASSESSEE, WHERE THE ASSESSEE HAD FURNISHED C OMPLETION CERTIFICATE IN RESPECT OF THREE WINGS OF THE PROJEC T OUT OF FOUR. THE TRIBUNAL OBSERVED THAT THE HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VARIOUS GROUP OF BUILDINGS CONSTRUCTED O N A PARTICULAR LAND BUT IT CAN ALSO BE A PARTICULAR BUILDING OR AN Y BUILDING WHICH IS PART OF THE LARGE PROJECT. 12. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CA SE OF RAHUL CONSTRUCTION VS. ITO (SUPRA) WHILE DEALING WITH A S IMILAR DISPUTE HAS HELD AS UNDER: 9. TO DECIDE THE ABOVE ISSUE, IT IS NECESSARY TO D ECIDE FIRSTLY AS TO WHAT WOULD BE FIRST DATE OF APPROVAL OF THE HOUSING PROJECT BY THE PMC TO COMPUTE THE TIME LIMIT PRESCRIBED FOR COMPLETION OF THE PROJECT TO TAKE BE NEFIT OF DEDUCTION U/S. 80IB(10) OF THE ACT. THERE IS NO DIS PUTE ON SOME MATERIAL FACTS THAT OUT OF 16 BUILDINGS IN THE HOUSING PROJECT OF THE ASSESSEE ONLY 11 BUILDINGS WERE COMP LETED WITHIN THE PRESCRIBED TIME LIMIT UPTO 31ST MARCH 200 8. THE LAY OUT PLAN IN RESPECT OF ENTIRE COMPLEX WAS SANCT IONED BY PMC VIDE ORDER NO. DPO/45/D/646 DATED 3.4.2003 AND THE BUILDING PLAN WAS SANCTIONED VIDE COMMENCEMENT CERTIFICATE NO. 4269 DT. 29.4.2003. ADMITTEDLY, THE TERM HOUSING PROJECT HAS NOT BEEN DEFINED IN THE INCOM E TAX ACT BUT IN THE CONTEXT OF DEDUCTION U/S. 80IB(10) A N EXPLANATION HAS BEEN PROVIDED BELOW CLAUSE (A) TO SUBSECTION (10) TO SECTION 80IB. FOR A READY REFERE NCE, THE SAID EXPLANATION IS BEING REPRODUCED HEREUNDER : (I ) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING P ROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH T HE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPR OVED BY THE LOCAL AUTHORITY. (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DAT E ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. THE VERY READING OF 10 ABOVE EXPLANATION (I), IT MAKES CLEAR THAT FOR THE ELIGIBILITY OF THE DEDUCTION PROVIDED U/S. 80 IB (10) OF THE AC T, THE DATE ON WHICH BUILDING PLAN OF SUCH HOUSING PROJECT HAS BEEN FIRSTLY APPROVED BY THE LOCAL AUTHORITY WILL B E TREATED AS APPROVAL IN RESPECT OF THE HOUSING PROJECT. WHEN WE READ EXPLANATION (II) WITH EXPLANATION (I) IT MAKES CLE AR THAT COMPLETION OF CONSTRUCTION OF SUCH BUILDING PLAN FI RST APPROVED BY THE LOCAL AUTHORITY WILL BE TAKEN THE D ATE OF COMPLETION OF CONSTRUCTION OF SUCH BUILDING PLAN WH EN COMPLETION CERTIFICATE HAS BEEN ISSUED BY THE LOCAL AUTHORITY. IN OTHER WORDS, IN CLAUSE (I) OF THE EXP LANATION, IT HAS BEEN MADE CLEAR THAT WOULD BE THE HOUSING PROJE CT, FIRST APPROVAL OF WHICH, BY THE LOCAL AUTHORITY WOU LD BE TAKEN AS STARTING POINT OF THE HOUSING PROJECT AND IN CLAUSE NO. (II), IT HAS BEEN MADE CLEAR THAT WHAT WOULD BE THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING P ROJECT ISSUED BY LOCAL AUTHORITY TO COMPUTE THE PRESCRIBED TIME LIMIT FOR VERIFICATION OF ELIGIBILITY OF ASSESSEE FO R THE CLAIMED DEDUCTION. IN VIEW OF THE ABOVE EXPLANATION, WE FIN D SUBSTANCE IN THE CONTENTION OF THE LD. A.R. THAT AP PROVAL OF THE HOUSING PROJECT AND APPROVAL OF BUILDING PLAN A RE TWO DIFFERENT CONCEPTS. THE BANGALORE BENCH OF THE TRIB UNAL IN THE CASE OF DCIT VS. BRIGADE ENTERPRISES (P) LTD. ( SUPRA) HAS HELD THAT PLAN FOR DEVELOPMENT IS ONLY A WORK O RDER AND NOT FINAL PLAN SANCTIONED BY THE LOCAL AUTHORIT Y. FOR ANY PROJECT, THERE COULD NOT HAVE BEEN A PLAN WITHO UT SUBMISSION OF THE DETAILED BUILDING PLANS, BY THE A RCHITECT AND WHAT REQUISITE DETAILS REQUIRED TO BE SUBMITTED FOR APPROVAL OF THE BUILDING PLANS BY THE LOCAL AUTHORI TY. IN THE CASE OF SAROJ SALES ORGANIZATION VS. ITO (SUPRA), B EFORE MUMBAI BENCH, ALMOST SIMILAR FACTS AS BEFORE US WER E THERE. THE COMMENCEMENT CERTIFICATE IN RESPECT OF S IX WINGS IN BLOCK N WAS SEPARATELY RECEIVED BY THE ASSESSE E AND ALL THE FLATS IN BLOCK WERE LESS THAN 1000 SQ.FT. I T WAS HELD BY THE TRIBUNAL THAT IT IS NOT UPON TO THE REVENUE TO INCLUDE BLOCK BC AS PART OF BLOCK N JUST TO DENY RELIEF TO THE ASSESSEE U/S. 80 IB(10). THE TRIBUNAL OBSERVED THAT BLOCK BC WAS MEANT FOR HIGHER STRATA OF THE SOCIETY HAD BEEN KEPT SEPARATELY BY ASSESSEE IN ALL THE RESPECT, ASS ESSEE HAD NOT CLAIMED RELIEF U/S. 80IB IN RESPECT OF BLOC K BC . IN THE CASE OF MUDHIT MADANLAL GUPTA VS. ACIT (SUPR A ) BEFORE THE MUMBAI BENCH, IT HAS BEEN HELD THAT THE HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VARIOUS GRO UP OF BUILDINGS CONSTRUCTED ON THAT PARTICULAR LAND, BUT IT CAN ALSO BE A PARTICULAR BUILDING OR ANY BUILDING WHICH IS P ART OF A LARGE PROJECT. IT HAS BEEN FURTHER HELD THAT WHATEV ER PORTION OF THE HOUSING PROJECT IS OTHERWISE FOUND TO BE ELI GIBLE HAS TO BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPO SE OF DEDUCTION U/S. 80 IB (10) OF THE ACT. SIMILAR VIEW H AS BEEN EXPRESSED BY MUMBAI BENCH OF THE TRIBUNAL IN THE CA SE OF VANDANA PROPERTIES VS. ACIT (SUPRA). 10. IN VIEW OF ABOVE DISCUSSION, WE COME TO THE CON CLUSION THAT FOR VERIFICATION OF ELIGIBILITY OF BENEFIT CLA IMED U/S. 80 IB (10) OF THE ACT BY THE ASSESSEE ON BUILDINGS A1 TO A5 IN ATUL NAGAR AND BUILDINGS B1 TO B6 IN RAHUL NISAR G CO- OPERATIVE HOUSING SOCIETY LTD., THE ASSESSING AUTH ORITY HAS TO VERIFY AS TO WHEN THE BUILDING PLANS FOR THE SE BUILDINGS WERE FIRSTLY APPROVED BY THE LOCAL AUTHO RITY AND 11 TAKING THE SAID DATE OF APPROVAL A STARTING POINT, HE HAS TO VERIFY AS TO WHETHER THESE BUILDINGS WERE COMPLETED WITHIN THE PRESCRIBED TIME LIMIT I.E. 31ST MARCH 2008 ON TH E BASIS OF THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HO USING PROJECT ISSUED BY THE PMC. WHEN WE EXAMINE THE FACT S OF THE PRESENT CASE UNDER THE ABOVE BACKGROUND, WE FIN D THAT THE AUTHORITIES BELOW HAVE NOT DISPUTED THE FACT FU RNISHED IN THIS REGARD BY THE ASSESSEE THAT UNDER THE PROJE CT ATUL NAGAR CONSISTING OF BUILDINGS A1 TO A5, THE FIRST BUILDING PLAN FOR A TYPE WAS APPROVED BY THE PMC ON 29.4.200 3 VIDE COMMENCEMENT CERTIFICATE NO. 4269 (PAGE NO. 4 OF THE PAPER BOOK). HOWEVER, ACTUAL CONSTRUCTION OF A TYPE BUILDING WAS EXECUTED AS PER THE REVISED PLAN VIDE NO. C.C. 4101/27/6/2003 (PAGE NO. 5 OF THE PAPER BOOK). THE SIZE OF THE PLOT ON WHICH THE A TYPE BUILDING I.E. A1 TO A6 HAVE BEEN CONSTRUCTED IS 1,39,466 SQ.FT. THE PROJECT A T YPE BUILDING I.E. A1 TO A5 CONSISTS OF 360 RESIDENTIAL UNITS AND THE CONSTRUCTION HAS BEEN COMPLETED BETWEEN 10.1.20 05 TO 31.8.2005 (PAGE NOS. 6 TO 9 OF PAPER BOOK). THE AUT HORITIES BELOW HAVE ALSO NOT DISPUTED THIS MATERIAL FACT THA T RESIDENTIAL UNITS HAS A MAXIMUM BUILT UP AREA OF 15 00 SQ.FT. LIKEWISE, THESE MATERIAL FACTS THAT B GROUP BUILDINGS IN RAHUL NISARG COOPERATIVE HOUSING SOCIETY LTD., HAVE BEEN CONSTRUCTED ON LAND AREA OF 138203 SQ.FT., HAS NOT BEEN DENIED BY THE AUTHORITIES BELOW. THEY HAVE ALS O NOT DENIED THESE MATERIAL FACTS THAT THE FIRST BUILDING PLAN WAS SANCTIONED ON 29.4.2003 VIDE COMMENCEMENT CERTIFICA TE NO. 4269 ISSUED BY THE PMC (PAGE NO. 16 OF THE PAPE R BOOK). THE OTHER MATERIAL FACTS LIKE ACTUAL CONSTRU CTION WAS EXECUTED AS PER THE REVISED PLAN SANCTION ON 20TH M ARCH 2004 VIDE CC NO. 2225 (PAGE NO. 17), THE PROJECT CO NSISTS OF 396 FLATS AND CONSTRUCTION OF THESE FLATS HAVE BEEN COMPLETED ON 14.7.2006 AS PER THE COMPLETION CERTIF ICATE ISSUED BY THE PMC (PAGE NOS. 13 TO 18 OF PAPER BOOK ) ARE NOT IN DISPUTE. THE AUTHORITIES BELOW HAVE ALSO NOT DENIED THAT BUILT UP AREA OF EACH OF THESE FLATS DOES NOT EXCEED 1500 SQ.FT. IT IS ALSO NOT IN DISPUTE THAT BOTH THE PROJECTS ARE ENTIRELY A RESIDENTIAL PROJECT AND THERE IS NO COMM ERCIAL AREA THEREIN. UNDER THE ABOVE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE IS VERY MUCH ENTITLED TO THE CLAIMED DEDUCTION U/S. 80IB (10) OF THE ACT ON THE BUILDING S A1 TO A5 IN ATUL NAGAR AND BUILDINGS B1 TO B6 IN RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LTD. THE ISSUE IS THE REFORE DECIDED IN FAVOUR OF THE ASSESSEE. WE THUS WHILE SE TTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE IS SUE, DIRECT THE A.O TO ALLOW THE CLAIMED DEDUCTION U/S. 80IB(10 ) IN QUESTION. THE RELATED GROUNDS ARE ACCORDINGLY ALLOW ED. 13. THUS, FROM THE FACTS OF THE CASE AND THE VARIOU S DECISIONS DISCUSSED ABOVE, WE CONCLUDE THAT THE ASSESSEE IS E LIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10) ON ALL THE RESIDENTIAL BUIL DINGS COMPRISING IN PHASE-I (A1 AND A2) AND PHASE-II (A3 TO A8). THE DATE OF COMPLETION OF PHASE-II SHALL BE RECKONED FROM THE D ATE OF COMMENCEMENT CERTIFICATE ISSUED BY PMC IN RESPECT O F BUILDINGS A3 TO A8. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), ACCORDINGLY, T HE SAME IS UPHELD AND THE APPEALS OF THE DEPARTMENT ARE DISMIS SED. 12 8. BEFORE US, REVENUE HAS NOT POINTED ANY DISTINGUISHING FACTS IN THE CASE UNDER CONSIDERATION AND THAT OF EARLIER YEARS. WE THEREFORE FOLLOWING THE ORDER OF ITAT IN ASSESSEES OWN C ASE FOR EARLIER YEARS, FIND NO REASON TO INTERFERE WITH THE ORDER O F LD.CIT(A) AND THUS THE GROUNDS OF REVENUE ARE DISMISSED AND C.O. OF THE ASSESSEE ARE ALLOWED. 9. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSED AND CROSS-OBJECTION OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 12 TH DAY OF JANUARY, 2018. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) $ / JUDICIAL MEMBER %$ / ACCOUNTANT MEMBER PUNE; DATED : 12 TH JANUARY, 2018. YAMINI &'()*)' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. 4. 5. 6. CIT(A)-7, PUNE. CIT-6, PUNE. '#$!% %&',)! !&' , / DR, ITAT, B PUNE; $+,-/ GUARD FILE. / BY ORDER , ! // / TRUE COPY / / // TRUE COPY // . /0%1&2 / SR. PRIVATE SECRETARY )! !&' , / ITAT, PUNE.