Lalitkumar Kesarimal Jain, Pune V. ACIT, Circle-4, Pune

ITA 1032/PUN/2009

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6747 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 19-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 31-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VERMA
• Assessee Lawyers: SUNIL PATHAK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO.1032/PN/2009 (ASST. YEAR: 2006-07) LALITKUMAR KESARIMAL JAIN KUMAR CAPITAL, 2 ND FLOOR, 2413, EAST STREET, CAMP, PUNE 411001 PAN: AAYPJ2211J APPELLANT VS. ACIT, CIRCLE-4, PUNE RESPONDENT APPELLANT BY : SHRI NIKHIL PATHAK AND SHRI SUNIL PATHAK RESPONDENT BY : SMT. M.S. VERMA ORDER PER R.S. PADVEKAR, JM: THIS APPEAL IS FILED BY THE ASSESSEE CHALLENGING T HE IMPUGNED ORDER OF THE CIT(A)-II, PUNE, DATED 18.06.2009 FOR THE A.Y. 2006-07. THE ASSESSEE HAS TAKEN THE FOLLOWING EFFECTIVE GROU ND. 1. THE HONBLE CIT(A)-II ERRED IN DISALLOWING THE ENTIRE CLAIM OF THE A FOR DEDUCTION U/S 80IB(10) OF THE I.T. ACT, 1961 ONLY ON THE GROUND THAT TWO OUT OF FIVE BUILDINGS COMPRISED IN THE PROJECT PARK VALENCIA WERE NOT COMPLETE BEFORE 31.03.2008 . THE A PLEADS THAT THE HONBLE CIT(A)-II BE DIRECTED TO AL LOW THE AS CLAIM FOR DEDUCTION U/S 80IB(10) OF RS.2,51,49,266/- IN R ESPECT OF THE BUILDINGS COMPLETED BEFORE 31.03.2008. THE FACTS WHICH ARE REVEALED FROM THE RECORD ARE A S UNDER. 2. THE ASSESSEE IS A PROMOTER AND DEVELOPER AND CAR RYING ON BUSINESS IN THE NAME AND STYLE OF M/S. KUMAR BUILDE R. DURING THE PERIOD UNDER CONSIDERATION, THE ASSESSEE HAS CLAIME D THE DEDUCTION OF 2,51,49,266/- U/S.80IB(10) OF THE I.T. ACT IN RESPE CT OF HOUSING PROJECT 2 PARK VALENCIA AND THIS IS THE PRECISE ISSUE IN DI SPUTE AS THE SAID DEDUCTION WAS DENIED BY THE ASSESSING OFFICER. 3. THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSE SSEE HAS COMPLETED TWO PROJECTS DURING THE PERIOD UNDER CONS IDERATION I.E. PARK VALENCIA VILLAGE AT MUNDHAWA, PUNE ON WHICH THE AS SESSEE HAS CLAIMED DEDUCTION U/S. 80IB(10) OF THE ACT AND ANOTHER PROJ ECT KUMAR DHRUVA AT KONDHWA, PUNE WHICH IS NON 80IB(10) PROJECT. AS OBSERVED BY THE ASSESSING OFFICER, THE HOUSING PROJECT PARK VALENC IA CONSISTS OF 5 BUILDINGS WITH 64 FLATS. THE ESCO POONA (I) PVT. L TD. WAS THE OWNER OF THE PLOT ON WHICH PARK VALENCIA IS DEVELOPED BY T HE ASSESSEE. AS OBSERVED BY THE ASSESSING OFFICER, THE FIRST COMMEN CEMENT CERTIFICATE FOR THE SAID PROJECT WAS TAKEN ON 08.07.2000 BY ESC O POONA (I) PVT. LTD. THE SAID COMPANY SUBSEQUENTLY ENTERED INTO A DEVELO PMENT AGREEMENT WITH QUILL INVESTMENT PVT. LTD. FURTHER, QUILL INV ESTMENT PVT. LTD. AND THE ASSESSEE JOINTLY UNDERTOOK THE SAID PROJECT AND THE COMMENCEMENT CERTIFICATE NO.6531 DATED 25.06.2002 WAS TAKEN FOR THE SECOND TIME FOR THE 5 BUILDINGS. AS OBSERVED BY THE ASSESSING OFFI CER, THE ASSESSEE HAS SOLD 56 FLATS AND CLAIMED THE DEDUCTION ON THE PROF IT DERIVED ON THE SALE OF THOSE FLATS TO THE EXTENT OF 2,51,49,266/- U/S. 80IB(10) OF THE ACT. THE ASSESSING OFFICER INTERPRETED THE PROVISIONS OF SECTION 80IB(10) OF THE ACT. THE ASSESSING OFFICER HAS OBSERVED THAT A S THE ASSESSEES PROJECT WAS COMMENCED BEFORE 01.04.2004, THE ASSESS EE WAS REQUIRED TO COMPLETE THE SAID PROJECT BY 31.03.2008. THE AS SESSEE SUBMITTED A COPY OF THE COMPLETION CERTIFICATE DATED 17.06.2005 AND AS PER THE SAID COMPLETION CERTIFICATE, THE BUILDINGS C, D AND E ARE SHOWS AS COMPLETED. THE ASSESSEE DID NOT PRODUCE THE COMPLE TION CERTIFICATE IN RESPECT OF BUILDINGS A AND B. SO, THE ASSESSING OFFICER HAD A RESERVATION FOR ALLOWING DEDUCTION TO THE ASSESSEE U/S. 80IB(10) OF THE ACT AND IN HIS OPINION THE ASSESSEE DID NOT COMPLY WITH THE TIME LIMIT PRESCRIBED U/S. 80IB(10) OF THE ACT FOR COMPLETING THE PROJECT OF THE 5 BUILDINGS. 4. THE ASSESSING OFFICER, THEREFORE CONCLUDED THAT AS THE ASSESSEE DID NOT COMPLETE THE PROJECT WITHIN THE TIME LIMIT GIVEN U/S.80IB(10) OF THE ACT AND HENCE, NO DEDUCTION CAN BE GIVEN TO THE ASSESSEE. THE ASSESSING OFFICER, THEREFORE, REJECTED THE ENTIRE C LAIM OF THE DEDUCTION 3 AND MADE ADDITION TO THE INCOME OF THE ASSESSEE. T HE ASSESSEE CARRIED THE ISSUE BEFORE THE LD. CIT(A) RAISING THE GRIEVAN CE AGAINST THE ACTION OF THE ASSESSING OFFICER BUT WITHOUT SUCCESS AS THE LD CIT(A) CONFIRMS THE ACTION OF THE ASSESSING OFFICER DENYING THE DED UCTION TO THE ASSESSEE U/S.80IB(10) OF THE ACT. NOW, THE ASSESSE E IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. THE ASSESSEE HAS FILED THE PAPER BOOK WHICH IS ALSO CON SIDERED. THE LD COUNSEL SUBMITS THAT THE EXPRESSION HOUSING PROJEC T HAS NOT BEEN DEFINED FOR THE PURPOSE OF SECTION 80IB(10) OF THE ACT. HE REFERRED TO THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF VANDANA PROPERTIES - 353 ITR 36 (BOM. H.C.) AND SUBMITS THA T IT IS NOT NECESSARY THAT WHATEVER THE BUILDINGS ARE SHOWN IN THE LAYOUT MUST BE TREATED AS ONE HOUSING PROJECT AND ALL BUILDINGS MUST BE COMPL ETED FOR GETTING THE BENEFITS OF SECTION 80IB(10). HE SUBMITS THAT AS T HE BUILDINGS A AND B WERE NOT VIABLE TO THE ASSESSEE, HENCE PROPOSED CON STRUCTION OF BOTH THE BUILDINGS WAS ABANDONED AND TILL TODAY, NO CONS TRUCTION WAS CARRIED OUT EVEN IF SOME CONSTRUCTION WAS THERE IN RESPECT OF BUILDING A. HE ALSO REFERRED TO THE COPY OF THE PLAN IS PLACED IN THE COMPILATION AND SUBMITS THAT SO FAR AS BUILDINGS C, D AND E A RE CONCERNED, ALL WERE COMPLETED WELL IN TIME AND PROFIT WAS ALSO OFFERED ON WHICH THE DEDUCTION U/S.80IB(10) OF THE ACT HAS BEEN CLAIMED. THE LD COUNSEL ALTERNATIVELY PLEADED THAT PRESUMING THAT THE HOUSI NG PROJECT WAS CONSISTING OF 5 BUILDINGS GOING WITH THE CASE OF TH E ASSESSING OFFICER, IN THAT CASE ALSO, IF THE ASSESSEE HAS COMPLETED 3 BUI LDINGS, THE ASSESSEE SHOULD BE ALLOWED PROPORTIONATE DEDUCTION. LD COUN SEL RELIED ON THE FOLLOWING DECISIONS; I) CIT, MUMBAI VS. VANDANA PROPERTIES 353 ITR 36 (BO M. H.C) II) DY.CIT VS. BRIGADE ENTERPRISE PVT. LTD. (2008) 119 TTJ 269 (BANG) III) MUDHIT MADANLAL GUPTA VS. ACIT [51 DTR 217 (MUM) (T RIB)] IV) BENGAL AMBUJA HOUSING DEVELOPMENT LTD. VS. DY.CIT [1295/KOL/05] V) MAGARPATTA TOWNSHIP DEVELOPMENT & CONSTRUCTION CO. VS. DCIT [ITA NO.822/PN/11 & 04/PN/12] VI) RUNWAL MULTIHOUSING PVT. LTD. VS. ACIT [ITA NO.1015 , 1-16 & 1017/PN/11]. 4 6. PER CONTRA, LD DR SUBMITS THAT ADMITTEDLY AS PER LAYOUT PLAN, THE ASSESSEE HAS UNDERTAKEN THE PROJECT OF THE 5 BUILDI NGS AND LAW CONTEMPLATES, MORE PARTICULARLY SECTION 80IB(10) TH AT FOR GETTING THE BENEFITS OF THE SAID PROVISION, THE ASSESSEE MUST C OMPLETE THE PROJECT BEFORE THE TIME LIMIT GIVEN IN SECTION 80IB(10) IN ALL RESPECTS. LD DR RELIED ON THE FOLLOWING DECISIONS. I) RAMSUKH PROPERTIES VS. DCIT [138 ITD 278 (PUNE)] II) KURA HOMES PVT. LTD. [139 ITD 445 (HYD)] III) ACIT VS. VISWAS PROMOTERS (P) LTD. [126 ITD 263(CHE NNAI)] IV) NIRMITEE CONSTRUCTION VS. DCIT [95 TTJ 1117 (PUNE)] V) OM ENGINEERS [109 ITD 235] VI) CIT V. GOPAL PLASTICS [215 ITR 136] 7. IN REJOINDER, THE LD COUNSEL SUBMITTED THAT THE DECISIONS RELIED ON BY THE CIT-DR ARE DISTINGUISHABLE. HE MADE FOLLOWI NG SUBMISSIONS IN RESPECT OF EACH DECISIONS RELIED ON BY LD. CIT-DR . 1] RAMSUKH PROPERTIES VS. DCIT [138 ITD 278 (PUNE) ] IN THIS CASE, THE SANCTIONED PLAN WAS FOR 205 FLATS AND ASSESSEE COMPLETED ONLY 173 FLATS. THE BALANCE FLATS COULD N OT BE COMPLETED BY THE ASSESSEE BECAUSE OF CID INTERVENTION ON ACCOUNT OF VIOLATION OF ULC ACT AND THE COMPLETION CERTIFICATE WAS ISSUED FOR 1 73 FLATS ONLY. THE ASSESSEE'S CONTENTION WAS THAT THE PROPORTIONATE DE DUCTION U/S 80IB(10) SHOULD BE GIVEN ON A PRO-RATA BASIS ON 173 FLATS OUT OF 205 FLATS. HON'BLE ITAT ALLOWED THE DEDUCTION ON A PRO- RATA BASIS BY FOLLOWING ITAT DECISION IN THE CASE OF BENGAL AMBUJ A. THE ASSESSEE NEVER CONTENDED THAT THE PROJECT IS OF ONLY 173 FLA TS AND NOT OF 205 FLATS. IN PARA 3 OF THE ORDER, THE CONTENTION OF TH E ASSESSEE WAS THAT ABOUT 85% OF THE PROJECT WAS COMPLETED. ACCORDINGLY, HON'BLE ITAT HELD FOLLOWING VARIOUS DE CISIONS THAT ON A PRO-RATA BASIS, DEDUCTION U/S 80IB(10) IS ALLOWAB LE FOR 173 OUT OF 205 FLATS. THUS, IT WAS NOT A CASE OF INCLUDING ONLY A FEW BUILDINGS IN A PROJECT. HON'BLE TRIBUNAL DOES NOT DISCUSS THE ISSU E THAT A PART OF THE PROJECT CAN ALSO BE A PROJECT FOR THE PURPOSES OF S ECTION 80IB(10). HENCE, THEY HAVE HELD THAT IF SOME OF THE FLATS IN A PROJECT ARE NOT COMPLETED BECAUSE OF SOME LEGAL IMPEDIMENTS, THE DE DUCTION U/S 5 80IB(10) SHOULD BE GIVEN ON THE FLATS WHICH ARE COM PLETED. ACCORDINGLY, THIS RATIO IS NOT APPLICABLE ON THE CONTROVERSY AS TO WHAT IS A PROJECT FOR THE PURPOSES OF SECTION 80IB(10) AND HENCE, THIS IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 2] KURA HOMES PVT. LTD. [139 ITD 445 (HYD)] IN THIS CASE, THE LEARNED DR HAS RELIED ON PARA 27 OF THE ORDER. THE FACTS WERE THAT THE ASSESSEE WAS FOLLOWING PERC ENTAGE COMPLETION METHOD SHOWING PROFIT FROM THE PROJECT EVERY YEAR. ACCORDINGLY, IN THAT YEAR, THE PROJECT WOULD NOT BE COMPLETE AND THEREFO RE, THE ASSESSEE COULD NOT FURNISH THE COMPLETION CERTIFICATE EVERY YEAR. THE ASSESSEE FURNISHED THE COMPLETION CERTIFICATE ONLY AT THE EN D OF THE PROJECT AND HON'BLE TRIBUNAL HELD THAT IT IS NOT NECESSARY TO O BTAIN COMPLETION CERTIFICATE FOR EACH YEAR AND IT IS SUFFICIENT THAT THE CERTIFICATE IS OBTAINED ON COMPLETION OF THE HOUSING PROJECT AS A WHOLE. NOW, IN THIS CASE, THE CONTROVERSY IS NOT SAME AS I N OUR CASE. THE ISSUE AS TO WHETHER THE ASSESSEE CAN CONTEND THAT T HE PROJECT CONSISTED ONLY OF A FEW BUILDINGS AND NOT THE ENTIRE SANCTION ED PLAN WAS NOT BEFORE THE TRIBUNAL. ACCORDINGLY, THE TRIBUNAL HAS NOT DECIDED THE ISSUE OF WHAT IS A PROJECT AND WHETHER THE PROJECT WOULD ALWAYS BE AMOUNTING TO THE PROJECT AS PER THE SANCTIONED PLAN. THUS, 'T HE HOUSING PROJECT AS A WHOLE' AS MENTIONED IN THAT DECISION DOES NOT MEA N THE ENTIRE PROJECT AS PER THE SANCTIONED PLAN. THE ASSESSEE CAN CHOOSE ONLY A FEW BUILDINGS IN THE SANCTIONED PLAN AS A PROJECT. HENC E, THIS DECISION IS NOT APPLICABLE IN THIS CASE. 3] ACIT VS. VISWAS PROMOTERS (P) LTD. [126 ITD 26 3(CHENNAI)] THE DECISION OF HON'BLE TRIBUNAL IN THIS CASE HAS B EEN OVERRULED BY THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE SA ME CASE [255 CTR 149], A COPY OF WHICH IS ENCLOSED ON PAGE 121 OF TH E LEGAL COMPILATION. IN THAT CASE, THE ASSESSEE CONSTRUCTED TWO SCHEMES. THE ASSESSEE CLAIMED DEDUCTION U/S 80IB(10) IN RESPECT OF THE BL OCKS NOT EXCEEDING 1500 SQ. FT. WHEREAS IT DID NOT CLAIM THE DEDUCTION IN RESPECT OF UNITS EXCEEDING 1500 SQ. FT. HON'BLE TRIBUNAL HELD THAT T HE ASSESSEE WAS NOT ELIGIBLE TO CLAIM THE DEDUCTION EVEN IN RESPECT OF FLATS BELOW 1500 SQ.FT. 6 AS THE HOUSING PROJECT WAS TO BE CONSTRUED AS A WHO LE AS APPROVED BY THE LOCAL AUTHORITY AND SINCE SOME OF THE UNITS IN THE SAID PROJECT AS APPROVED BY THE LOCAL AUTHORITY EXCEEDED 1500 SQ. F T., THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM THE DEDUCTION U/S 80IB(10) IN RESPECT OF THE WHOLE PROJECT. HOWEVER, THE SAID DECISION OF HON'BLE ITAT WAS REVE RSED BY HON'BLE HIGH COURT IN THE APPEAL FILED BY THE ASSES SEE. HON'BLE HIGH COURT HAS CATEGORICALLY HELD THAT AS PER EXPLANATIO N TO SECTION 80HHBA OF THE ACT, 'HOUSING PROJECT' MEANS THE CONSTRUCTIO N OF ANY BUILDING, ROAD, BRIDGE OR OTHER STRUCTURE IN ANY PART OF INDI A AND THEREFORE, AS PER THE ABOVE DEFINITION, EACH BLOCK OF BUILDING HAS TO BE CONSIDERED AS AN INDEPENDENT HOUSING PROJECT FOR THE PURPOSES OF SEC TION 80IB(10). HON'BLE HIGH COURT HAS FURTHER HELD THAT THE ASSESS EE IS ELIGIBLE TO CLAIM DEDUCTION U/S 80IB(10) IN RESPECT OF EACH INDIVIDUA L FLAT ADMEASURING 1500 SQ.FT. THE ASSESSEE SUBMITS THAT EVEN IN THE CASE OF THE A SSESSEE, AS PER THE APPROVED PLAN, THERE WERE TOTAL FIVE BUILDI NGS OUT OF WHICH ONLY THREE BUILDINGS COULD BE CONSTRUCTED AND THESE BUIL DINGS FULLY SATISFIED ALL THE CONDITIONS LAID DOWN U/S 80IB(10) . THUS, I T IS SUBMITTED THAT THE DECISION OF HON'BLE HIGH COURT IS SQUARELY APPLICAB LE TO THE CASE OF THE ASSESSEE AND HENCE, THE THREE BUILDINGS SATISFYING ALL THE CONDITIONS U/S 80IB(10) MAY BE CONSIDERED AS AN INDEPENDENT HOUSIN G PROJECT FOR THE PURPOSES OF SECTION 80IB(10) IN VIEW OF THE RATIO L AID DOWN IN THE ABOVE DECISION. 4] NIRMITEE CONSTRUCTION VS. DCIT [95 TTJ 1117 (PUNE)]- IN THIS CASE, THE CONTENTION OF THE DEPT. WAS THAT THE PROJECT HAS COMMENCED PRIOR TO 01.10.1998 BECAUSE THE ASSESSEE HAD INCURRED NOMINAL EXPENDITURE ON THE PROJECT. HON'BLE ITAT HE LD THAT THE NOMINAL EXPENDITURE ON THE SITE IN THE FORM OF POOJA EXPENS ES OR LAND LEVELING EXPENSES, ETC. DO NOT AMOUNT TO STARTING THE DEVELO PMENT OF A PROJECT. HENCE, THE DECISION WAS IN FAVOUR OF THE ASSESSEE T HAT THE EXPENDITURE INCURRED PRIOR TO 01.10.1998 WAS NOT ON THE DEVELOP MENT AND 7 CONSTRUCTION OF THE PROJECT AND THUS, THE ASSESSEE DID NOT VIOLATE THE CONDITION IN SECTION 80IB(10). NOW, THE LEARNED D.R. HAS RELIED ON THIS DECISION F OR THE PROPOSITION THAT IF THE CONSTRUCTION OF A BUILDING STARTED PRIOR TO 01.10.1998, ENTIRE PROJECT IS DISQUALIFIED FOR THE DEDUCTION U/S 80IB(10). THE PRINCIPLE OF PROPORTIONATE DEDUCTION IS NOT APP LICABLE IN VIEW OF THIS DECISION. IT IS TO BE STATED THAT IN THE CASE OF NIRMITEE, TH E QUESTION OF PROPORTIONATE DEDUCTION AS IN THIS CASE DID NOT ARI SE AT ALL. IN THAT CASE, HON'BLE TRIBUNAL DOES NOT HOLD THAT THE SANCTIONED PLAN IS A PROJECT. IN OUR CASE, THE PROJECT IS IDENTIFIED BY THE ASSESSEE OF THREE BUILDINGS AND THE CONSTRUCTION OF THESE THREE BUILDINGS STARTED O NLY AFTER 01.10.1998. ACCORDINGLY, THIS DECISION CITED BY THE LEARNED D.R . HAS NO APPLICATION. 5] OM ENGINEERS [109 ITD 235] - IN THIS CASE, THE CONTROVERSY WAS THE LAND AREA WAS LESS THAN ONE ACRE OR NOT. NATURALLY, IF IT WAS LESS THAN ONE ACR E, THE PROJECT WOULD NOT HAVE QUALIFIED FOR THE DEDUCTION. BUT THE DECISION DOES NOT STATE AS TO WHAT IS MEANING OF THE WORD 'PROJECT'. HENCE, THIS DECISION IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 7] CIT V. GOPAL PLASTICS [215 ITR 136] IT IS STATED THEREIN THAT CERTAIN SECTIONS PROVIDE FOR PERCENTAGE DEDUCTION TO BE ALLOWED. THUS, UNLESS A SECTION PRO VIDES FOR PERCENTAGE DEDUCTION, IT SHOULD NOT BE ALLOWED. ACCORDING TO T HE LEARNED D.R., SECTION 80IB(10) DOES NOT PROVIDE IT. IN THIS CONTEXT, FIRST OF ALL, THE ABOVE DECISION H AS NO APPLICATION TO THE CONTROVERSY IN THE PRESENT CASE. WE HAVE SUBMIT TED THAT THE PROJECT CONSISTS OF THREE BUILDINGS ONLY AND WHICH THE ASSE SSEE HAS COMPLETED. IT IS THE DEPT'S CASE TO EQUATE THE PROJECT WITH TH E SANCTIONED PLAN WHICH IS NOT SUPPORTED BY ANY DECISION. HENCE, IN T HIS CASE, THE ASSESSEE HAS COMPLETED THE ENTIRE PROJECT OF THREE BUILDINGS AND 8 THEREFORE, THE QUESTION OF PROPORTIONATE DEDUCTION DOES NOT COME UP. EVEN OTHERWISE, IN THE CASE OF BENGAL AMBUJA, PROPO RTIONATE DEDUCTION HAS BEEN ALLOWED. 8. IN THIS CASE FACTS ARE NOT IN DISPUTE. AS PER T HE ORIGINAL LAYOUT APPROVAL, THERE WERE 5 BUILDINGS IN THE PLAN A, B, C, D AND E. THE ASSESSEE HAS COMPLETED THE 3 BUILDINGS BEFORE 31.03 .2008 WHICH WAS TIME LIMIT GIVEN FOR COMPLETION OF THE HOUSING PROJ ECT AS THE ASSESSEE HAS OBTAINED THE COMMENCEMENT CERTIFICATE BEFORE 01 .04.2004. THE ASSESSEE CLAIMED THE DEDUCTION U/S 80IB(10) OF THE ACT ON THE COMPLETED 3 BUILDINGS WHICH FLATS WERE SOLD. THE A SSESSEE HAS NOT CONTINUED THE CONSTRUCTION OF THE REMAINING 2 BUILD INGS I.E. A AND B. NOW THE QUESTION BEFORE US IS WHETHER THE INTERPRET ATION GIVEN BY THE AUTHORITIES BELOW TO THE EXPRESSION HOUSING PROJEC T IS IN CONFORMITY WITH THE JUDICIAL PRONOUNCEMENTS. 9. IN THE CASE OF VANDANA PROPERTIES (SUPRA), THE H ONBLE HIGH COURT WAS HAVING SOMEWHAT IDENTICAL ISSUE. IN THE SAID C ASE, THERE WAS ONE LAYOUT IN WHICH THERE WERE SOME ADDITIONS TO THE BU ILDING. IN RESPECT OF BUILDING E WHICH WAS NOT EVEN SHOWN IN THE ORIGIN AL LAYOUT, THE SAME WAS SUBSEQUENTLY ADDED. THE HONBLE HIGH COURT HEL D THAT THE HOUSING PROJECT CAN ALSO BE OF THE ONE BUILDING AND IT IS N OT NECESSARY THAT THE HOUSING PROJECT SHOULD BE OF GROUP OF THE BUILDINGS . SO FAR AS THE EXPRESSION HOUSING PROJECT IS CONCERNED, THERE IS NO DEFINITION AT LEAST FOR THE PURPOSE OF SECTION 80IB(10). THE QUESTION BEFORE US CAN IT BE SAID THAT THE 5 BUILDINGS SHOWN IN THE ORIGINAL LAY OUT PLAN ARE THE ONE COMPOSITE PROJECT HOUSING OR COMPLETED 3 BUILDINGS ALSO CONSTITUTE INDEPENDENT HOUSING PROJECT. IT WAS NOT CONTROVERT ED BEFORE US THAT THE ASSESSEE TILL TODAY HAS NOT GONE WITH THE CONSTRUCT ION OF THE ABANDONED BUILDINGS I.E. A AND B AND THE ASSESSEE ONLY HAS COMPLETED 3 BUILDINGS I.E. C', D AND E. 10. AS PER FACTS ON RECORD, THERE IS NO OTHER CHARG E AGAINST THE ASSESSEE IN RESPECT OF NON-COMPLIANCE OF THE OTHER CONDITIONS. THE INTERPRETATION OF THE AUTHORITIES BELOW WOULD BE CO RRECT IF THERE WOULD HAVE BEEN SPECIFIC DEFINITION OF THE HOUSING PROJEC T IN THE ACT ITSELF. IN OUR OPINION, THE 3 BUILDINGS COMPLETED BY THE ASSES SEE AS PER THE 9 APPROVED PLAN CAN BE TREATED AS HOUSING PROJECT FOR THE PURPOSE OF ALLOWING THE DEDUCTION U/S 80IB(10) OF THE ACT. WE HAVE ALSO TO UNDERSTAND THE DIFFICULTIES FACED BY THE DEVELOPER AS EVEN THOUGH INITIALLY HE HAS PLANNED OUT MANY BUILDINGS BUT SUB SEQUENTLY, HE MAY ABANDON SOME OF THE BUILDINGS. IN OUR HUMBLE UNDER STANDING, ON INTERPRETATION OF SECTION 80IB(10) OF THE ACT, EVEN 3 BUILDINGS CONSTITUTE A HOUSING PROJECT IF THE ASSESSEE HAS ABANDONED THE CONSTRUCTION OF 2 BUILDINGS. WE, THEREFORE, ALLOW THE GROUND TAKEN B Y THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) IN RESPECT OF C, D AND E TREATING THOSE BUILDINGS AS HOUSING PROJECT. WE HAVE ALSO GONE THROUGH THE DECISIONS RELIED ON BY THE LD CIT-DR. IN OUR OPINION, THOSE DECISIONS ARE DISTINGUISHABLE ON FACTS AS ADMITTEDLY THERE IS NO CHARGE AGAINST THE ASSESSEE FOR VIOLATING OTHER CONDITIONS OF SECTION 80IB(10), SAVE INTERPRETATION OF THE TERM HOUSING PROJECT. 11. IN THE RESULT, THE ASSESSEE'S APPEAL IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON THIS THE 23 RD DAY OF JUNE, 2014. SD/- SD/- (G.S. PANNU) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED 23 RD JUNE, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A) II, PUNE 4) THE CIT-II, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY ITAT PUNE BENCHES, PUNE