Income-tax Officer, V. M/s. Cosmopolis Construction, Pune

ITA 1030/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9237 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 16-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Assessee Lawyers: RISHABH GUJRATHI
• Keywords: Competent authority
• Section: 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1030/PUN/2016 / ASSESSMENT YEAR : 2011-12 INCOME TAX OFFICER, WARD-6(3), PUNE . /APPELLANT VS. M/S. COSMOPOLIS CONSTRUCTION, 614, OPP. PARSI AGYARI, NANA PETH, PUNE 411 002 PAN : AAAAC3785B . / RESPONDENT / APPELLANT BY : DR. VIVEK AGGARWAL, CIT-DR / RESPONDENT BY : SHRI RISHABH GUJRATHI / DATE OF HEARING : 26.02.2018 / DATE OF PRONOUNCEMENT: 28.02.2018 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER OF CIT(A)-5, PUNE, DATED 15-02-2016 FOR THE ASSESSMENT YEAR 2011-12. 2. REVENUE RAISED THE FOLLOWING GROUNDS AND THE SAM E READ AS UNDER: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN LAW, THE LD.CIT(A) IS CORRECT IN ALLOWING THE DEDUCTION U/S.80IB(10) OF THE I.T. ACT, 1961. 2. FOR THIS AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE CIT(A) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. FROM THE ABOVE GROUNDS, IT IS EVIDENT THAT THE ONL Y ISSUE RAISED IN THIS APPEAL RELATES TO ALLOWABILITY OF DEDUCTION U/S.80I B(10) OF THE ACT. 2 3. RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN AOP AND ENGAGED IN THE BUSINESS OF BUILDER AND DEVELOPERS. ASSESSE E FILED THE RETURN OF INCOME ON 29-09-2011 DECLARING TOTAL INCOME OF RS.3,22,31, 984/-. ASSESSEE CLAIMED THE DEDUCTION OF RS.3,75,97,564/- IN RESPECT OF UNI TS SOLD DURING THE YEAR IN BUILDING A1 TO A6 WHICH WERE PART OF PROJECT A. HOWEVER, THE ASSESSEE CLAIMS TO HAVE COMPLETED THE CONSTRUCTION OF THE SAID BUIL DING BEFORE DUE DATE I.E. 31.03.2008. BUT, THE INITIAL PLAN SANCTIONED COMPR ISED OF TWO PROJECTS I.E. PROJECT A AND B AND SINCE PROJECT B HAD NOT S TARTED. THEREFORE, THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT WAS DENIED TO THE ASSESSEE IN A.YRS. 2009-10 AND 2010-11 BY THE AO. CIT(A) CONFIRMED THE SAME. AGGRIEVED WITH THE ORDER OF CIT(A), ASSESSEE FILED APPEALS BEFORE THE TRIBUNAL FOR A.YRS. 2009-10 AND 2010-11. THE TRIBU NAL VIDE ITA NO.1260/PN/2013, ORDER DATED 31-12-2015 AND ITA NO. 883/PUN/2014, ORDER DATED 07-04-2016 ALLOWED PROPORTIONATE CLAIM OF DE DUCTION UNDER SECTION 80IB(10) OF THE ACT TO THE ASSESSEE IN RESPECT OF C OMPLETED UNITS IN PROJECT A. 4. AT THE OUTSET, BEFORE US, LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THIS IS THE THIRD YEAR THE ASSESSEE CLAIMED THE DEDUCTIO N U/S.80IB(10) OF THE ACT. HE FURTHER BROUGHT OUR ATTENTION TO THE ORDER OF CI T(A) AND SUBMITTED THAT THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S.80IB(10) OF THE ACT IN RESPECT OF THE PROFITS ON THE SAME PROJECT WAS DECIDED BY THE TRIB UNAL ALLOWING PROPORTIONATE DEDUCTION IN RESPECT OF THE PROJECT A. LD. COUNSEL FOR THE ASSESSEE FILED THE COPIES OF THE SAID ORDERS OF THE TRIBUNAL AND ASKED FOR DECIDING ON THE LINES OF EXISTING ORDERS OF THE TRIBUNAL. 5. LD. DR FOR THE REVENUE DUTIFULLY RELIED ON THE O RDER OF THE AO. HOWEVER, HE FAIRLY MENTIONED THAT THE TRIBUNAL IN THE ASSESS EES OWN CASE IN THE EARLIER ASSESSMENT YEARS 2009-10 AND 2010-11 DECIDED THE IS SUE. 3 6. WE HEARD BOTH THE SIDES AND THE ORDER OF TRIBUNA L FOR THE A.Y. 2010-11 AND FIND IT RELEVANT TO EXTRACT THE FINDING OF THE TRIBUNAL ON THE SAME ISSUE. THE SAME IS REPRODUCED AS UNDER : 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS IN RELATION TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. WE PROCEED TO CONSIDE R THE FACTUAL ASPECTS OF THE CASE IN ORDER TO ADJUDICATE THE ISSUE RAISED BY THE ASSESSEE I.E. THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESP ECT OF PROJECT A SANCTIONED PRIOR TO PROJECT B, WHICH WAS SANCTIONED ON LATER D ATE I.E. AFTER THE RECEIPT OF ORDER OF ULC BY RELEASE OF PLOT FOR CONSTRUCTING TH E PROJECT B. THE FACTUAL ASPECTS OF THE CASE WERE THAT THE COMPANY SHARAN ES TATES PVT. LTD. HAD PURCHASED UNDIVIDED SHARES OF VARIOUS OWNERS OF LAN D AT SURVEY NO.186, YERWADA, PUNE ADMEASURING 15900 SQ. MTRS. VIDE AGREE MENT OF SALE DATED 22.09.1994, 27.10.1994, 18.08.1995 AND 09.01.1996. THE SAID LAND WAS SUBJECT TO THE PROVISIONS OF URBAN LAND CEILING & R EGULATION ACT, 1976. THE SAID CONCERN SOUGHT APPROVAL FROM PMC FOR DEVELOPME NT AND CONSTRUCTION OF THE RESIDENTIAL BUILDINGS ON THE SAID LAND TO BE DE VELOPED AS PROJECTS A AND B. THE SAID DIVISION WAS BASED ON THE STATUTORY PROVIS ION UNDER THE ULCA, 1976 AND THE COMMENCEMENT OF THE WORK. THE PROJECT A WA S ENVISAGED AND SANCTIONED AS PER ORDER UNDER ULCA, DATED 22.11.199 8, UNDER WHICH AN AREA OF 12094 SQ. MTRS. WAS EXEMPTED. THE BALANCE FOR THE ABOVE AREA SANCTIONED ON 14.07.2001. THE FIRST BUILDING PLAN WAS SANCTIONED ON 03.06.1997, UNDER WHICH ONE OF THE CONDITIONS WAS TO OBTAIN NOC FOR NALLA / GUTTER. THE COPY OF THE SAID SANCTIONED PLAN IS PLACED AT PAGE 38 OF THE PA PER BOOK. THEREAFTER, THE PAYMENT FOR THE SAID NALLA / GUTTER WAS MADE ON 26. 04.1999 AND THE COPY OF THE SAME IS PLACED AT PAGE 41 OF THE PAPER BOOK. T HE PMC AGAIN ISSUED A COMMENCEMENT CERTIFICATE NO.2141 DATED 09.06.1999 A FTER THE OBJECTION WAS MET BY THE ASSESSEE. THE COPY OF THE SAID COMMENCE MENT CERTIFICATE ISSUED BY THE PMC IS PLACED AT PAGE 40 OF THE PAPER BOOK. TH E ASSESSEE CLAIMS THAT THE SECOND COMMENCEMENT CERTIFICATE WAS ALSO ISSUED WIT H THE CONDITION MEANING NALLA / GUTTER FOR RAIN WATER WAS TO BE REMOVED AFT ER THE PAYMENT OF CHARGES AND THE ACTUAL COMMENCEMENT CERTIFICATE WAS ISSUED ON 17.04.2004, COPY OF WHICH IS PLACED AT PAGE 43 OF THE PAPER BOOK. THE PLEA OF THE ASSESSEE BEFORE US IS TWO-FOLD IN THIS REGARD. THOUGH THE COMMENCE MENT CERTIFICATE, IF ANY, ISSUED PRIOR TO FULFILLING THE CONDITION OF NALLA / GUTTER FOR RAIN WATER, AND THE RESTRICTION IMPOSED BY THE ULCA HAVING NOT BEEN COM PLIED WITH, THE CLEAR AREA OF 12094 SQ. MTRS. WAS AVAILABLE WITH THE ASSESSEE ONLY WHEN THIRD COMMENCEMENT CERTIFICATE WAS OBTAINED ON 14.07.2001 . THE COMPANY M/S. SHARAN ESTATES PVT. LTD., DID NOT COMMENCE THE CONS TRUCTION AGAINST WHICH AND THE AOP WAS FORMED ON 19.04.2004, WHICH WAS FORMED AS PRE-CONDITION TO THE PLANS SANCTIONED ON 17.04.2004. THE CASE OF THE ASSESSEE BEFORE US WAS THAT THE CONTENTION OF THE ASSESSING OFFICER THAT T HE INITIAL SANCTION FOR COMMENCEMENT OF THE PROJECT BY THE LOCAL AUTHOR ITY WAS GIVEN ON 03.06.1997 I.E. PRIOR TO 1998 WAS NOT CORRECT, IN V IEW OF THE ABOVE SAID FACTS AND CIRCUMSTANCES. 11. WE ARE IN CONFORMITY WITH THE FINDINGS OF CIT(A ) IN THIS REGARD THAT THE CONTENTION OF THE ASSESSING OFFICER THAT FIRST DATE WHEN THE CONSTRUCTION AND DEVELOPMENT COULD HAVE TAKEN PLACE WOULD BE 03.06.1 997, WAS NOT CORRECT. THE CONSTRUCTION AND DEVELOPMENT OF PROJECT A MADE ONLY BY WAY OF COMMENCEMENT CERTIFICATE DATED 09.06.1999, THOUGH T HE SAME WAS SUBJECT TO FULFILLMENT OF CONDITION OF PAYMENT OF CERTAIN CHAR GES OF NALLA / GUTTER. THE CASE OF THE ASSESSEE BEFORE US WAS THAT THOUGH THE COMMENCEMENT CERTIFICATE WAS ISSUED ON 09.06.1999, BUT NO CONSTRUCTION WAS S TARTED AS IS EVIDENT FROM THE FACT THAT NO EXPENSES FOR CONSTRUCTION HAD BEEN DEBITED AND FURTHER, THE PROJECT HAS BEEN UNDERTAKEN BY THE AOP, WHICH CAME INTO EXISTENCE ONLY ON 19.04.2004. ANOTHER PLEA RAISED BY THE ASSESSEE IN THIS REGARD WAS THAT THE ACTUAL COMMENCEMENT CERTIFICATE WAS ISSUED BY THE P MC ON 17.04.2004, AND 4 BECAUSE OF THE SAID PRE-CONDITION BEING FULFILLED, THE AOP WAS FORMED ON 19.04.2004. IN ORDER TO ADJUDICATE THE SAID DISPUT E OF DATE OF CERTIFICATE OF THE PROJECT, RECOURSE IS MADE TO THE PROVISIONS OF SECT ION 80IB(10) OF THE ACT. THE CLAUSE (A) TO SECTION 80IB(10) OF THE ACT TALKS OF VARIOUS DATES ON WHICH THE UNDERTAKING COMMENCED DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT. IN CASE THE SAID COMMENCEMENT OF DEVELOPMENT AND CO NSTRUCTION OF THE PROJECT IS ON OR AFTER 01.10.1998 AND WHERE THE HOU SING PROJECT HAD BEEN APPROVED BY THE LOCAL AUTHORITY BEFORE THE FIRST DA Y OF APRIL, 2004, THEN THE CONSTRUCTION OF THE SAID PROJECT IS TO BE COMPLETED ON OR BEFORE 31.03.2008 AS PER CLAUSE (I) THEREUNDER. AS PER CLAUSE (II) THER EUNDER, WHERE THE HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY ON AFTER 01.04.2004, BUT NOT LATER ON 31.03.2005, THEN THE SAME HAS TO BE COMPLE TED WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. THE EXPLANATION UNDER SECTION 80I B(10)(A) OF THE ACT FURTHER PROVIDES THAT IN CASES WHERE THE APPROVAL IN RESPEC T OF HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH 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. THERE ARE OTHER C ONDITIONS LAID DOWN IN SECTION I.E. IN RESPECT OF PROJECT BEING A SIZE OF PLOT OF LAND GENERALLY A MINIMUM AREA OF ONE ACRE AND THE RESIDENTIAL UNITS BEING NOT EXCEEDING THE BUILT UP AREA OF 1500 SQ. FT. AND CERTAIN RESTRICTI ONS ON THE COMMERCIAL AREA. ADMITTEDLY, ALL THE OTHER CONDITIONS PRESCRIBED UND ER SECTION 80IB(10) OF THE ACT STAND FULFILLED I.E. THE PROJECT IS ON AN AREA EXCEEDING ONE ACRE AND BUILT UP AREA OF THE UNITS COMPLETED BY THE ASSESSEE ARE LES S THAN 1500 SQ.FT. THE QUESTION WHICH ARISES BEFORE US IS FIRST THE DATE O N WHICH THE PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY, COMMENCED DEVELOPM ENT AND CONSTRUCTION OF THE HOUSING PROJECT AND SECONDLY, THE DATE ON WHICH THE SAID PROJECT HAS BEEN COMPLETED. 12. THE SECOND ASPECT OF THE ISSUE RAISED BEFORE US IS THAT WHERE INITIALLY THE PROJECT WAS ENVISAGED TO COMPRISE OF PROJECTS A AND B AND WHERE THE PROJECT B HAS NOT COMPLETED THE DEVELOPMENT AND CON STRUCTION, CAN THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT BE ALLO WED TO THE PROJECT A OR THE SAME HAS TO BE DENIED. THE CASE OF THE ASSESSING O FFICER IS THAT THE ASSESSEE IS NOT ENTITLED TO THE DEDUCTION UNDER SECTION 80IB (10) OF THE ACT SINCE THE SANCTION TO CONSTRUCTION PROJECTS A AND B WAS GIVEN ON 03.06.1997. HOWEVER, WE FIND NO MERIT IN THE SAID PLEA OF THE ASSESSING OFFICER, IN VIEW OF THE CONDITIONS LAID DOWN IN THE SAID SANCTION ITSELF I. E. IT WAS SUBJECT TO APPROVAL UNDER ULCA, 1976. THE SURPLUS LAND UNDER ULCA, 197 6 WAS DECLARED BY THE COMPETENT AUTHORITY I.E. THE ADDITIONAL COLLECTOR, PUNE AGGLOMERATION VIDE ORDER DATED 22.12.1998 AT 3806.75 SQ. MTRS., THE EA RLIER ULCA ORDER DATED 15.12.1997 HAD ONLY SPECIFIED THE AREA FOR ROAD AND OPEN SPACE. IN VIEW THEREOF, THE ASSESSEE COULD HAVE COMMENCED THE CONS TRUCTION OF THE PROJECT A ONLY AFTER ULCA ORDER DATED 22.12.1998, TILL THEN T HE AREA FOR CONSTRUCTION OF PROJECT B WAS NOT REGULARIZED AND HENCE, THERE IS N O MERIT IN THE OBSERVATIONS OF ASSESSING OFFICER IN THIS REGARD THAT THE PROJEC T ENVISAGED BY THE ASSESSEE WAS BOTH A AND B. AFTER THE DECLARATION OF THE SUR PLUS LAND, THE COMMENCEMENT CERTIFICATE WAS ISSUED BY PMC ON 09.06 .1999 WITH THE CONDITION THAT NALLA / GUTTER FOR RAIN WATER, WHICH WAS TO BE REMOVED AFTER PAYMENT OF CHARGES. IN VIEW OF THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES AND IN VIEW OF THE RESTRICTIONS IMPOSED BY ULCA, 1976 A ND ALSO THE CONDITIONS IMPOSED BY THE PMC IN THE ORIGINAL SANCTION DATED 0 3.06.1997, WE HOLD THAT ONLY AFTER THE CLEAR AREA OF 12094 SQ. MTRS., WAS A VAILABLE WITH THE ASSESSEE PURSUANT TO THE ORDER DATED 22.12.1998, DECLARING T HE SURPLUS LAND, THE SANCTION OF PMC DATED 09.06.1999 FOR PROJECT A IS T O BE CONSIDERED. IT MAY BE REITERATED HERE THAT THE PROJECT B IS NOT ENVISAGED IN THE SANCTION WHICH WAS GIVEN BY THE PMC ON 09.06.1999. THE CASE OF THE AS SESSEE IS THAT THIRD COMMENCEMENT CERTIFICATE WAS OBTAINED ON 14.07.2011 . HOWEVER, NO CONSTRUCTION WAS COMMENCED BY THE COMPANY SHARAN ES TATES PVT. LTD. AND THEREAFTER, ANOTHER PLAN WAS SANCTIONED ON 17.04.20 04 BEFORE FORMATION OF AOP ON 19.04.2004. THE CONTENTION OF THE ASSESSEE IN T HIS REGARD IS THAT THE PLAN WAS SANCTIONED ON 17.04.2004, UNDER WHICH THE CONST RUCTION STARTED AND HENCE, IT IS GOVERNED BY THE PROVISIONS OF SECTION 80IB(10)(A)(II) OF THE ACT. HOWEVER, WE FIND NO MERIT IN THE STAND OF THE ASSES SEE. THE EXPLANATION UNDER 5 SECTION 80IB(10)(A) OF THE ACT PROVIDES THAT IN CAS ES WHERE THE APPROVAL IN RESPECT OF HOUSING PROJECTS ARE OBTAINED MORE THAN ONCE, THEN SUCH HOUSING PROJECTS SHALL BE DEEMED TO HAVE BEEN APPROVED ON T HE DATE ON WHICH THE BUILDING PLAN WAS FIRST APPROVED BY THE LOCAL AUTHO RITY. THE BUILDING PLANS IN THE CASE OF ASSESSEE AFTER THE DECLARATION OF SURPL US LAND BY THE ULCA WAS FIRST APPROVED ON 09.06.1999 WITH CERTAIN CONDITIONS, WHI CH WERE LATER FULFILLED BY THE ASSESSEE. MERELY BECAUSE ANOTHER PLAN FOR COMM ENCEMENT WHICH WAS SANCTIONED ON A LATER DATE I.E. 14.07.2001 AND 19.0 4.2004 RELATES TO THE INITIAL PLAN SANCTIONED ON 09.06.1999 AND IN VIEW OF EXPLAN ATION TO SECTION 80IB(10)(A) OF THE ACT, WE HOLD THAT THE PLANS IN T HE CASE OF THE ASSESSEE TO CONSTRUCT PROJECT A WERE APPROVED ON 09.06.1999 SIN CE THESE WERE SANCTIONED ON OR AFTER FIRST DAY OF OCTOBER, 1998, BUT BEFORE FIRST DAY OF APRIL, 2004, THEN THE PROVISIONS OF SECTION 80IB(10)(A)(I) OF THE ACT ARE APPLICABLE AND THE ASSESSEE HAD TO COMPLETE THE CONSTRUCTION ON OR BEF ORE 31.03.2008. THE ASSESSEE IN THIS REGARD DREW OUR ATTENTION TO THE C OPY OF OCCUPANCY CERTIFICATE IN LOCAL LANGUAGE DATED 31.03.2008 PLACED AT PAGE 7 2 OF THE PAPER BOOK. HOWEVER, ENGLISH TRANSLATION OF THE SAID DOCUMENT I S NOT AVAILABLE ON RECORD AND IT IS NOT CLEAR AS TO WHETHER THE OCCUPANCY CER TIFICATE IS GIVEN FOR 122 FLATS HAS BEEN COMPLETED BY THE ASSESSEE BY 31.03.2008. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE STAND OF THE ASSESS EE VIS--VIS DOCUMENT PLACED AT PAGE 72 OF THE PAPER BOOK. IN CASE, THE BUILDIN G IN PROJECT A HAS BEEN COMPLETED BY 31.03.2008, THEN THE ASSESSEE IS ENTIT LED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. IN CA SE THE BUILDINGS ARE NOT COMPLETELY CONSTRUCTED BY 31.03.2008, THEN THE ASSE SSEE IS ENTITLED ONLY TO THE PROPORTIONATE DEDUCTION ON THE PORTION OF BUILDING I.E. FLATS WHICH HAVE COMPLETED CONSTRUCTION BY 31.03.2008 AS THE ASSESSE E WAS REQUIRED TO COMPLETE THE CONSTRUCTION BY 31.03.2008. THE YEAR UNDER APPEAL BEFORE US IS ASSESSMENT YEAR 2009-10 WITH YEAR ENDING 31.03.2009 . THE NECESSARY DETAILS COULD BE VERIFIED BY THE ASSESSING OFFICER IN THIS REGARD AND IN CASE FOUND TO BE IN ORDER, IN LINE WITH OUR DIRECTIONS, THE ASSESSIN G OFFICER SHALL COMPUTE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF COMPLETED BUILDINGS OR PROPORTIONATE DEDUCTION IN RESPECT OF COMPLETED UNITS. 13. THE SECOND STAND OF THE ASSESSING OFFICER IN RE JECTING THE CLAIM OF THE ASSESSEE THAT ORIGINAL PLAN WAS FOR THE CONSTRUCTIO N OF PROJECTS A AND B AND WHERE PROJECT B HAS NOT BEEN COMPLETED BY 31.03.200 8, THE ASSESSEE IS NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80 IB(10) OF THE ACT DOES NOT STAND, IN VIEW OF THE LAND ON WHICH PROJECT B PLANN ED WAS UNDER THE ULCA, 1976. VIDE ORDER DATED 22.12.1998, ONLY THE AREA O N WHICH PROJECT A WAS COMPLETED WAS RELEASED AND THE LAND ON WHICH PROJEC T B IS BEING CONSTRUCTED WAS RELEASED ON 21.10.2005. HENCE, BEFORE THE ORDE R OF ULCA, 1976, WE FIND NO MERIT IN THE STAND OF ASSESSING OFFICER IN HOLDI NG THAT THE PROJECT B WAS ALREADY ENVISAGED AS PER THE SANCTIONED PLAN DATED 03.06.1997. ALTHOUGH THERE IS SANCTION OF PLAN ON 03.06.1997, BUT THE SA ME WAS WITH CONDITIONS I.E. OBTAINING DECLARATION UNDER THE ULCA, 1976 AND THE SAID DECLARATION HAVING BEEN MADE ON 22.11.1998, WE FIND NO MERIT IN THE ST AND OF THE ASSESSING OFFICER IN THIS REGARD THAT THE PLANS WERE SANCTION ED ON 03.06.1997. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT V S. ASHRAY PREMISES (P.) LTD. (2013) 34 TAXMANN.COM 165 (BOM) FOR THE PROPOS ITION THAT APPROVAL OF THE PROJECT DOES NOT DETERMINE THE START OF PROJECT AND IT IS ONLY THE COMMENCEMENT CERTIFICATE WHICH DETERMINES. WE FIND SUPPORT FROM THE SAID RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT. WE DIRECT THE ASSESSING OFFICER TO COMPUTE THE DEDUCTION UNDER SECTION 80IB (10) OF THE ACT IN LINE WITH OUR DIRECTIONS AFTER AFFORDING REASONABLE OPPORTUNI TY OF HEARING TO THE ASSESSEE. ACCORDINGLY, THE GROUNDS OF APPEAL RAISED BY THE RE VENUE ARE DISMISSED. 6. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE A SSESSEE BEFORE US POINTED OUT THAT NO DEDUCTION WAS CLAIMED BY IT IN RESPECT OF PROJECT B. IN VIEW OF THE ISSUE BEING IDENTICAL TO THE ISSUE BEFO RE THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2009-10 AND FOLLOWING T HE SAME PARITY OF REASONING, WE DIRECT THE ASSESSING OFFICER TO ALLOW PROPORTIONATE DEDUCTION 6 UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF COM PLETED UNITS IN PROJECT A. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE TH US, ALLOWED. 7. FROM THE ABOVE, IT IS EVIDENT THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION ON PROPORTIONATE BASIS. HOWEVER, IT IS THE DECISIO N OF THE TRIBUNAL THAT AO NEEDS TO VERIFY ON THE ASPECTS NARRATED IN THE ORDE R OF THE TRIBUNAL. CONSIDERING THE SETTLED NATURE OF THE ISSUE, WE ARE OF THE OPINION THAT ASSESSEE IS ENTITLED TO PROPORTION DEDUCTION U/S.80IB(1) OF THE ACT IN VIEW OF THE DIRECTIONS GIVEN BY THE TRIBUNAL IN THE ASSESSEES OWN CASE FOR A.Y. 2010-11. WE THEREFORE DIRECT THE AO ACCORDINGLY. THUS, THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF FEBRUARY, 2018. SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 28 TH FEBRUARY, 2018 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// //TRUE COPY// SENIOR PRI VATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A)-5, PUNE 4. CIT-5, PUNE 5. , , B BENCH PUNE; 6. / GUARD FILE.