M/s. Siddhivinayak Kohinoor Venture, Pune V. ACIT, Range-9, Pune

ITA 1112/PUN/2011

• Counselvise Citation: 111224514 RSA 2011
• Duration Of Justice: 2 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 05-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH VERMA
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Additional evidence
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS. 1112 & 1527/PN/2011 (ASSESSMENT YEARS : 2006-07 & 2007-08) M/S. SIDDHIVINAYAK KOHINOOR VENTURE, 199, MUMBAI PUNE ROAD, JAGANNATH COMPLEX, CHINCHWAD, PUNE 411 019. PAN : AAYFS4716R . APPELLANT VS. ADDL. COMMISSIONER OF INCOME TAX, RANGE 9, PUNE. . RESPONDENT APPELLANT BY : SHRI SUNIL PATHAK RESPONDENT BY : SHRI MUKESH VERMA ORDER PER G. S. PANNU, AM THE CAPTIONED TWO APPEALS RELATING TO THE SAME ASSE SSEE INVOLVE A COMMON ISSUE AND THEREFORE THEY HAVE BEEN CLUBBED A ND HEARD TOGETHER AND A CONSOLIDATED ORDER IS BEING PASSED FOR THE SAKE O F CONVENIENCE AND BREVITY. IN BOTH THE APPEALS, SUBSTANTIVE DISPUTE ARISES FRO M THE ACTION OF THE INCOME- TAX AUTHORITIES IN DENYING ASSESSEES CLAIM FOR DED UCTION U/S.80-IB(10) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WITH REGA RD TO THE PROFITS DERIVED BY IT FROM DEVELOPING AND BUILDING A HOUSING PROJECT. 2. THE APPELLANT IS A PARTNERSHIP FIRM WHICH IS ENG AGED IN THE BUSINESS OF PROMOTERS, BUILDERS AND DEVELOPERS. FOR THE ASSESSM ENT YEARS 2006-07 AND 2007-08, WHICH ARE IN APPEAL BEFORE US, ASSESSEE CL AIMED DEDUCTION U/S. 80-IB(10) OF THE ACT AMOUNTING TO RS.12,76,88, 137/- AND RS.1,27,68,813/- RESPECTIVELY IN RESPECT OF THE PROFITS DERIVED FROM DEVELOPING AND BUILDING A ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 HOUSING PROJECT NAMED SHUBHASHREE WOODS LOCATED A T PIMPLE SAUDAGAR, PUNE. THE SAID CLAIM OF DEDUCTION HAS BEEN DENIED B Y THE INCOME-TAX AUTHORITIES FOR IDENTICAL REASONS IN BOTH THE ASSES SMENT YEARS. IN ORDER TO APPRECIATE THE RELEVANT FACTS, THE REASONS FOR DENI AL OF DEDUCTION AND THE JUSTIFICATION SOUGHT TO BE CANVASSED BY THE ASSESSE E, WE MAY REFER TO THE FACT SITUATION AS EMERGING FROM THE ORDERS OF THE AUTHOR ITIES BELOW AND OTHER MATERIAL FURNISHED IN THE FORM OF PAPER BOOK, ETC. IN THE COURSE OF HEARING BEFORE US FOR THE ASSESSMENT YEAR 2006-07. 3. IN THE ASSESSMENT YEAR 2006-07, APPELLANT FILED A RETURN OF INCOME DECLARING TOTAL INCOME OF RS.12,76,88,137/- WHICH W AS CLAIMED AS EXEMPT U/S.80-IB(10) OF THE ACT ON THE GROUND THAT THE ENT IRE INCOME REPRESENTED PROFITS DERIVED FROM UNDERTAKING DEVELOPMENT AND BU ILDING OF A HOUSING PROJECT NAMED SHUBHASHREE WOODS LOCATED AT PIMPLE SAUDAGA R, PUNE. THE SAID PROJECT WAS CLAIMED TO HAVE BEEN STARTED IN THE PRE VIOUS YEAR RELEVANT TO THE EARLIER ASSESSMENT YEAR OF 2004-05. THE ASSESSEE CO NTENDED BEFORE THE ASSESSING OFFICER THAT IT COMPLIED WITH ALL THE CON DITIONS LAID DOWN U/S. 80-IB(10) OF THE ACT AND THAT DEDUCTION WAS JU STIFIABLY CLAIMED IN THE RETURN OF INCOME. THE ASSESSING OFFICER HAS PRIMARI LY RAISED AN OBJECTION WITH REGARD TO THE NON-COMPLETION OF THE PROJECT WITHIN THE PERIOD SPECIFIED IN SECTION 80-IB(10)(A)(I) OF THE ACT. NOTABLY, THE PR OJECT COMMENCED DEVELOPMENT AND CONSTRUCTION AFTER 01-10-1998 AND I T WAS APPROVED BY THE LOCAL AUTHORITY I.E. PIMPRI CHINCHWAD MUNICIPAL C ORPORATION (IN SHORT PCMC) BEFORE THE FIRST DAY OF APRIL, 2004 AND THEREFORE I N TERMS OF SECTION 80- IB(10)(A)(I) OF THE ACT CONSTRUCTION OF THE PROJECT OUGHT TO HAVE BEEN COMPLETED ON OR BEFORE 31.03.2008. IN TERMS OF EXPLANATION (I I) TO CLAUSE (A) OF SECTION 80-IB(10) OF THE ACT, THE COMPLETION CERTIFICATE IN RESPECT OF THE CONSTRUCTION OF THE HOUSING PROJECT WAS THUS REQUIRED TO BE OBTAINE D FROM THE LOCAL AUTHORITY ON OR BEFORE 31.03.2008. THE AFORESAID REQUIREMENT OF SECTION 80-IB(10)(A) OF ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 THE ACT IS THE SUBJECT-MATTER OF DISPUTE BEFORE US INASMUCH AS THE STAND OF THE REVENUE IS THAT THE ASSESSEE HAS NOT BEEN ABLE TO C OMPLETE THE CONSTRUCTION OF THE ENTIRE PROJECT BY 31.03.2008. ACCORDINGLY, T HE CLAIM OF DEDUCTION U/S. 80- IB(10) OF THE ACT HAS BEEN DENIED FOR NON-ADHERENCE WITH THE CONDITION PRESCRIBED IN SECTION 80-IB(10)(A) OF THE ACT WITH RESPECT TO THE PERMISSIBLE PERIOD OF CONSTRUCTION OF THE PROJECT. IN THE AFORE SAID BACKGROUND, NOW WE MAY BRING OUT THE RELEVANT FACTS WHICH HAVE A BEARING O N THE AFORESAID CONTROVERSY. 4. THE RELEVANT BACKGROUND AND THE NITTY-GRITTY OF THE PROJECT UNDERTAKEN BY THE ASSESSEE HAS BEEN ELABORATELY NOTED BY THE A SSESSING OFFICER AND THE SAME CAN BE SUMMARIZED AS FOLLOWS. THE APPELLANT FI RM ACQUIRED DEVELOPMENT RIGHTS IN RESPECT OF A PLOT ADMEASURING 37150 SQ.MT RS. BETWEEN THE PERIOD 07.03.2003 TO 05.06.2003. ON 26.06.2003, ASSESSEE A PPROACHED PCMC FOR APPROVAL OF CONSTRUCTION AND THE SAME WAS GRANTED B Y PCMC ON 10.09.2003 ON A PLOT SIZE OF 37150 SQ.MTRS.. THE SAID APPROVAL ENVISAGED CONSTRUCTION OF TO 262 UNITS COMPRISING OF 200 FLATS AND 62 ROW HOU SES, THE RELEVANT APPROVED PLAN AND ALSO THE CORRESPONDING CERTIFICATE ISSUED BY PCMC FOR COMMENCEMENT OF CONSTRUCTION HAVE BEEN PLACED AT PA GES 265-266 AND 275 TO 278 RESPECTIVELY OF THE PAPER BOOK FILED BY THE ASSESSEE. 5. SUBSEQUENTLY, APPELLANT ACQUIRED FURTHER LANDS T OTALING 18800 SQ.MTRS. DURING THE PERIOD 05.08.2003 TO 17.10.2003 AND THUS THE TOTAL PLOT AREA INCREASED TO 55950 SQ.MTRS. AFTER SUCH ACQUISITION, ASSESSEE FILED A REVISED PLAN ON 08.10.2003 WITH THE PCMC ON THE TOTAL PLOT AREA OF 55950 SQ.MTRS., PROPOSING TO CONSTRUCT 297 ROW HOUSES; IT TRANSPIRE S THAT PCMC GRANTED APPROVAL FOR CONSTRUCTION OF 280 ROW HOUSES VIDE AP PROVAL DATED 23.12.2003, A COPY OF SUCH APPROVAL AND THE CORRESPONDING CERTI FICATE ISSUED BY PCMC PERMITTING THE COMMENCEMENT OF CONSTRUCTION DATED 2 3.02.2003 HAVE BEEN PLACED AT PAGES 267 TO 272 AND 279 TO 282 RESPECTIV ELY OF THE PAPER BOOK. ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 WITH RESPECT TO THE 17 ROW HOUSES, IT WAS CLARIFIED BY THE ASSESSEE THAT PCMC WITHHELD THE APPROVAL ON ACCOUNT OF OVERHEAD ELECTR ICITY TRANSMISSION LINES CROSSING OVER A PORTION OF LAND. 6. THE ASSESSING OFFICER FURTHER NOTICED IN THE ASS ESSMENT ORDER THAT ASSESSEE ACQUIRED A FURTHER LAND AREA OF 10350 SQ.M TRS. ON 16.04.2004 AND AFTER SUCH ACQUISITION, ASSESSEE AMALGAMATED THE PI ECE OF SAID ADDITIONAL LAND OF 10350 SQ.MTRS WITH THE EXISTING LAND AREA OF 559 50 SQ.MTRS.. ON THE TOTAL INCREASED PLOT AREA OF 66300 SQ.MTRS., ASSESSEE FIL ED A REVISED PLAN WITH PCMC, WHICH WAS APPROVED ON 29.03.2005, WHEREBY CON STRUCTION OF 295 ROW HOUSES AND 144 FLATS WAS APPROVED. AT THIS POINT, I T WOULD BE APPROPRIATE TO OBSERVE THE ASSERTION OF THE ASSESSEE MADE BEFORE T HE ASSESSING OFFICER THAT THE SANCTION OF 295 ROW HOUSES WAS ON A PLOT AREA O F 55950 SQ.MTRS. (I.E. THE PLOT AREA EXISTING PRIOR TO THE ACQUISITION OF 1035 0 SQ.MTRS.) AND, THE CONSTRUCTION OF 144 FLATS WAS SANCTIONED ON A PLOT AREA OF 10350 SQ.MTRS. ACQUIRED ON 16.04.2004. THE PROJECT OF ROW HOUSES C OMPRISING OF 295 UNITS HAS BEEN STYLED AS SHUBHASHREE WOODS ROW HOUSES ( IN SHORT SWRH) WHILE THE PROJECT OF 144 FLATS HAS BEEN STYLED AS S -CUBE (IN SHORT S 3 ). THE COPIES OF THE RELEVANT PLANS APPROVED BY THE PCMC D ATED 29.03.2005 AND ALSO THE CORRESPONDING CERTIFICATE PERMITTING COMME NCEMENT OF CONSTRUCTION HAVE BEEN PLACED AT PAGES 273-274 AND 283 TO 286 OF THE PAPER BOOK RESPECTIVELY. 7. IN ORDER TO COMPLETE THE FACTS REGARDING THE LAN DS ACQUIRED BY THE ASSESSEE, IT IS ALSO RELEVANT TO OBSERVE THAT ON 27 .09.2005 ASSESSEE ACQUIRED ANOTHER CONTIGUOUS PLOT OF LAND MEASURING 5100 SQ.M TRS., WHICH WAS ALSO AMALGAMATED WITH THE EARLIER LAND AREA OF 66300 SQ. MTRS. AND THUS THE TOTAL PLOT AREA INCREASED TO 71400 SQ.MTRS. ASSESSEE FILE D ANOTHER REVISED PLAN WITH THE PCMC AND VIDE ITS APPROVAL DATED 31.03.2006, PC MC GAVE APPROVAL FOR CONSTRUCTION OF 282 FLATS IN ADDITION TO THE 295 RO W HOUSES WHICH WERE ALREADY ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 APPROVED IN THE PLAN DATED 29.03.2005. COPIES OF SU CH SANCTIONED PLAN AS WELL AS THE RELEVANT COMMENCEMENT CERTIFICATES HAVE BEEN AGAIN BEEN FURNISHED IN THE PAPER BOOK AT PAGES 477-478 AND 48 1-482 RESPECTIVELY. IN- FACT, IT TRANSPIRES THAT ASSESSEE FILED ANOTHER REV ISED PLAN FOR APPROVAL WITH THE PCMC WHEREBY THE TOTAL NUMBER OF FLATS TO BE CONSTR UCTED WAS INCREASED TO 316 AS AGAINST THE PREVIOUSLY APPROVED 282 FLATS AN D SUCH REVISION WAS ALSO SANCTIONED BY PCMC ON 31.03.2008, COPY OF WHICH HAS ALSO BEEN PLACED IN THE PAPER BOOK AT PAGES 479-480 AND COPY OF CORRESP ONDING COMMENCEMENT CERTIFICATE HAS BEEN PLACED AT PAGES 485 TO 488 OF THE PAPER BOOK. THE AFORESAID CHRONOLOGY OF THE ACQUISITION OF LANDS AN D THE PLAN REVISIONS CARRIED OUT FROM TIME TO TIME HAVE BEEN SUCCINCTLY BROUGHT OUT BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AND EVEN BEFORE US A DETAILED REFERENCE HAS BEEN MADE TO THE PAPER BOOK WHEREIN THE RELEVANT MA TERIAL HAS BEEN PLACED. AFTER CONSIDERING THE AFORESAID, IN PARA 5 OF THE A SSESSMENT ORDER, ASSESSING OFFICER HAS TABULATED THE DETAILS OF APPROVAL OF PL ANS, AREA OF PLOT, BUILT-UP AREA, AND THE NUMBER OF RESIDENTIAL UNITS, I.E. ROW HOUSES AND FLATS APPROVED BY THE PCMC. THE SAID TABULATION IS REPRODUCED AS U NDER :- SR. NO. DATE OF APPROVAL OF THE PLAN PARTICULARS PLOT AREA SQ. MT. BUILT UP AREA SQ.MT. NO. OF RESIDENTIAL UNITS 1 10/09/2003 INITIAL PLAN APPROVAL BY PCMC FOR FLATS & ROW HOUSES. 37150 20182 262 (200 FLATS & 62 ROW HOUSES) 2 23/12/2003 PCMC APPROVES REVISED PLAN 55950 25032.57 280 (ALL ROW HOUSES) 3 29/03/2005 PCMC APPROVES REVISED PLAN 66300 41473.75 439 (144 FLATS & 395 ROW HOUSES) 4 24/03/2006 PCMC APPROVES REVISED PLAN 71400 52315.78 577 (282 FLATS AND 295 ROW HOUSES) 5 31/03/2008 PCMC APPROVES REVISED PLAN 71400 53733.70 611 (316 FLATS 295 ROW HOUSES) 8. IN THE ABOVE BACKGROUND, ON BEING ASKED TO JUSTI FY THE CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT, ASSESSEE SUBMI TTED BEFORE THE ASSESSING OFFICER THAT IT HAD UNDERTAKEN DEVELOPMENT AND CONS TRUCTION OF TWO PROJECTS, NAMELY, THE ROW HOUSES PROJECT STYLED AS SWRH PRO JECT AND THE OTHER PROJECT ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 OF 316 FLATS STYLED AS S 3 PROJECT. ASSESSEE EXPLAINED THAT THE ROW HOUSES PROJECT I.E. SWRH PROJECT COMPRISING OF 295 UNITS WAS INDEPENDENT OF THE S 3 PROJECT AND THAT THE DEDUCTION U/S. 80-IB(10) OF TH E ACT WAS CLAIMED ONLY WITH REGARD TO THE PROFITS DERIVED FROM THE SWRH PROJE CT. AS PER THE SUBMISSIONS OF THE ASSESSEE, WHICH HAVE BEEN EXTENSIVELY REPROD UCED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, ASSESSEE POINTED O UT THAT SWRH PROJECT WAS CONSTRUCTED ON A PLOT AREA OF 55950 SQ.MTRS. WH ILE S 3 PROJECT WAS ON THE BALANCE LAND AREA OF 15450 SQ.MTRS.. AS PER THE ASS ESSEE THE TWO PROJECTS WERE CONCEIVED AS INDEPENDENT PROJECTS AND THEY WER E ALSO MARKETED AS SEPARATE PROJECTS; AND, THE CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT WAS CONFINED TO THE PROFITS DERIVED FROM THE CONSTRUCTI ON OF SWRH PROJECT. WITH RESPECT TO THE SWRH PROJECT, ASSESSEE ALSO ASSERT ED THAT THE CONSTRUCTION OF ALL 295 UNITS WAS COMPLETED BEFORE THE STIPULATED D ATE OF 31.03.2008 AND ACCORDINGLY IT FULFILLED THE REQUIREMENTS OF SECTIO N 80-IB(10)(A)(I) OF THE ACT. 9. AT THIS POINT, WE MAY ALSO BRIEFLY TOUCH UPON TH E ASPECT OF COMPLETION OF CONSTRUCTION OF 295 UNITS OF ROW HOUSES. ADMITTEDLY , IN TERMS OF SECTION 80-IB(10)(A)(I) OF THE ACT, CONSTRUCTION OF THE SAI D PROJECT WAS REQUIRED TO BE COMPLETED BY 31.03.2008. THE ASSESSING OFFICER NOTI CED THAT OUT OF THE TOTAL OF 295 ROW HOUSES IN SWRH PROJECT, COMPLETION CERTIF ICATE WAS ISSUED BY PCMC ONLY FOR 293 ROW HOUSES ON OR BEFORE 31.03.200 8. HOWEVER, AT THE TIME OF HEARING BEFORE US, THE LEARNED COUNSEL FOR THE A SSESSEE POINTED OUT THAT COMPLETION CERTIFICATE EVEN FOR THE BALANCE TWO ROW HOUSES HAS BEEN RECEIVED FROM PCMC. THE LEARNED COUNSEL EXPLAINED THAT THE C OMPLETION CERTIFICATE FOR THE BALANCE TWO ROW HOUSES WAS ISSUED BY PCMC ON 28 .06.2012, THOUGH THE APPLICATION TO OBTAIN SUCH COMPLETION CERTIFICATE W AS FILED WITHIN TIME BY THE ASSESSEE I.E. ON 26.03.2008 ITSELF. A COPY OF THE S AID CERTIFICATE HAS BEEN PLACED IN THE PAPER BOOK AT PAGE 293. THAT THE SAI D TWO ROW HOUSES WERE SOLD OUT TO THE CUSTOMERS WHO HAD STARTED USING IT AND FOR THAT MATTER LEARNED COUNSEL HAS REFERRED TO PAGES 295 TO 298 OF THE PAP ER BOOK WHEREIN ARE ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 PLACED PROPERTY TAX BILLS ISSUED BY PCMC FOR THE TW O ROW HOUSES, WHICH SHOW THAT THE TWO ROW HOUSES WERE INDEED COMPLETE BEFORE 31.03.2008. IN-FACT, IT IS POINTED OUT WITH REFERENCE TO THE COMPLETION CERTIF ICATE DATED 28.06.2012, THAT IT HAS BEEN ISSUED BY PCMC WITH EFFECT FROM 26.03.2 008, THEREBY JUSTIFYING THE ASSERTION THAT THE CONSTRUCTION WAS COMPLETE PRIOR TO 31.03.2008, THE STIPULATED DATE FOR COMPLETION OF THE PROJECT. THE LEARNED COUNSEL ALSO POINTED OUT THAT THE SAID COMPLETION CERTIFICATE DATED 28.0 6.2012 ISSUED BY PCMC WAS NOT AVAILABLE AT THE TIME OF PROCEEDINGS BEFORE THE LOWER AUTHORITIES AND THEREFORE IT SHOULD BE ADMITTED AS AN ADDITIONAL EV IDENCE. JUSTIFYING THE ADMISSION OF SUCH ADDITIONAL EVIDENCE, IT IS CONTEN DED THAT IT WAS NOT WITHIN THE CONTROL OF THE ASSESSEE AND THAT IN ANY CASE IT WAS AN APPROVAL GRANTED BY A LOCAL AUTHORITY I.E. PCMC WHOSE GENUINENESS COULD N OT BE DOUBTED; AND, FURTHER THAT THE ADDITIONAL EVIDENCE IS MERELY IN S UPPORT OF THE ASSERTION OF THE ASSESSEE ALREADY MADE BEFORE THE INCOME-TAX AUTHORI TIES THAT CONSTRUCTION OF SWRH PROJECT COMPRISING OF 295 ROW HOUSES WAS COM PLETE BEFORE 31.03.2008. 10. THE ASSESSING OFFICER HAS NOT ACCEPTED THE PLEA OF THE ASSESSEE THAT SWRH AND S 3 PROJECTS WERE TWO INDEPENDENT AND SEPARATE PROJEC TS FOR THE PURPOSE OF SECTION 80IB(10) OF THE ACT. THE ASSESSI NG OFFICER, AFTER NOTICING THE CHRONOLOGY OF EVENTS WHICH WE HAVE DEALT IN THE EARLIER PARAGRAPHS, POINTED OUT THAT SWRH PROJECT COMPRISING OF 295 R OW HOUSES DID NOT COME INTO EXISTENCE BY WAY OF ANY SPECIFIC APPROVAL OF P CMC. AS PER THE ASSESSING OFFICER, IN THE PLAN APPROVALS DATED 10.09.2003 AND 29.03.2005, PCMC HAS APPROVED CONSTRUCTION OF ROW HOUSES AS WELL AS CONS TRUCTION OF FLATS. IN PARA 12(3) AT PAGE 20 OF THE ASSESSMENT ORDER, THE ASSER TION OF THE ASSESSING OFFICER IS THAT THE TWO PROJECTS, I.E. SWRH PROJE CT FOR ROW HOUSES AND S 3 PROJECT FOR FLATS, HAVE A SINGLE UMBILICAL CORD B Y WAY OF A COMMON BUILDING PERMISSION GRANTED BY THE PCMC ON 29.03.2005. ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 11. THE SECOND POINT MADE BY THE ASSESSING OFFICER TO SHOW THAT THE TWO PROJECTS ARE A COMPOSITE PROJECT IS CONTAINED IN PA RA 12(6) OF THE ASSESSMENT ORDER WHEREIN IT IS OBSERVED THAT THE PCMC ALLOWED THE ASSESSEE TO USE THE UNUTILIZED EXTRA FSI OF 24645 SQ.MTRS. OF THE ROW H OUSES AREA TO BUILD THE FLATS BECAUSE THE CONSTRUCTION OF ROW HOUSES AND FLATS WA S CONSIDERED AS A COMPOSITE PROJECT. 12. DURING ASSESSMENT PROCEEDINGS, THE ASSESSING OF FICER ALSO CARRIED OUT A VERIFICATION EXERCISE WITH THE PCMC AND IN THAT C ONTEXT HE EXAMINED SHRI EKNATH PANDURANG UGILE, CHIEF ENGINEER, PCMC. AS PE R THE ASSESSING OFFICER, THE SAID OFFICIAL OF PCMC STATED, IN RESPO NSE TO A QUESTION, THAT THE ROW HOUSES PROJECT WAS NOT A SEPARATE PROJECT AND F URTHER OBSERVED THAT THE AREA OF LAND ON WHICH THE FLATS ARE CONSTRUCTED WAS AMALGAMATED WITH THE PLOT AREA ON WHICH THE ROW HOUSES WERE CONSTRUCTED; AND, THAT ASSESSEE WAS ABLE TO CONSTRUCT 316 FLATS AFTER USING THE SURPLUS FSI AVAILABLE IN RESPECT OF THE CONSTRUCTION OF ROW HOUSES. 13. IN NUTSHELL, THE ASSESSING OFFICER HELD THAT AS SESSEE HAD UNDERTAKEN ONLY ONE PROJECT, WHICH COMPRISED OF CONSTRUCTION O F ROW HOUSES AS WELL AS FLATS, AND, THAT THE TWO WERE NOT SEPARATE PROJECTS , AS CLAIMED BY THE ASSESSEE. ACCORDINGLY, THE ASSESSING OFFICER CONCLU DED THAT ASSESSEE HAD UNDERTAKEN A SINGULAR PROJECT CONSISTING OF CONSTRU CTION OF 611 RESIDENTIAL UNITS (I.E. 295 ROW HOUSES AND 316 FLATS) AND SINCE PRIOR TO THE STIPULATED DATE OF 31.03.2008 THE COMPLETION CERTIFICATES WERE OBTAINE D FROM PCMC ONLY FOR 293 UNITS OUT OF THE TOTAL 611 RESIDENTIAL UNITS, ASSES SEE DID NOT COMPLY WITH THE CONDITION SPECIFIED IN SECTION 80-IB(10)(A)(I) OF T HE ACT. CONSEQUENTLY, THE DEDUCTION CLAIMED BY THE ASSESSEE U/S. 80-IB(10) OF THE ACT WAS DENIED. 14. IN APPEAL BEFORE THE CIT(A), ASSESSEE REITERATE D ITS CLAIM TO THE EFFECT THAT THE SWRH PROJECT WAS A SEPARATE PROJECT AND IF IT WAS SO CONSIDERED, THE SAME COMPLIED WITH ALL THE CONDITIONS SPECIFIED FOR CLAIM OF DEDUCTION U/S. 80- ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 IB(10) OF THE ACT. THE CIT(A) HAS UPHELD THE STAND OF THE ASSESSING OFFICER TO THE EFFECT THAT THE TWO PROJECTS CANVASSED BY THE A SSESSEE WERE INDEED A SINGLE PROJECT. GOING FURTHER, THE CIT(A) HELD THAT EVEN IF, THE CLAIM OF THE ASSESSEE THAT SWRH PROJECT IS A SEPARATE PROJECT WAS TO BE UPHELD, YET ASSESSEE WAS NOT ELIGIBLE FOR THE DEDUCTION U/S. 80 IB(10) OF THE ACT ON THE GROUND THAT TILL 31.03.2008, ASSESSEE HAD RECEIVED COMPLETION CERTIFICATE ONLY IN RESPECT OF 293 ROW HOUSES OUT OF TOTAL OF 295 RO W HOUSES AND THE COMPLETION CERTIFICATE FOR THE BALANCE TWO ROW HOUS ES WAS NOT RECEIVED TILL 31.03.2008. THEREFORE, ACCORDING TO HIM, IN THE ABS ENCE OF COMPLETION CERTIFICATE FOR TWO ROW HOUSES, IT COULD NOT BE SAI D THAT ASSESSEE HAD COMPLETED CONSTRUCTION OF ITS SWRH PROJECT BEFORE 31.03.2008 AND THEREFORE ON THIS GROUND ALSO HE DENIED THE CLAIM OF DEDUCTIO N U/S. 80-IB(10) OF THE ACT. 15. IN THE ABOVE BACKGROUND, THE RIVAL COUNSELS HAV E MADE THEIR SUBMISSIONS BEFORE US. IN SO FAR AS THE APPELLANT I S CONCERNED, THE POINT CANVASSED IS THAT BOTH THE LOWER AUTHORITIES HAVE E RRED IN NOT APPRECIATING THAT FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT, S WRH PROJECT COMPRISING OF ROW HOUSES WAS A SEPARATE PROJECT THAN THE S 3 PROJECT COMPRISING OF FLATS. IT WAS REITERATED THAT ASSESSEES CLAIM OF DEDUCTION U /S. 80-IB(10) OF THE ACT WAS ONLY IN RESPECT OF THE SWRH PROJECT AND THEREFORE IT IS ONLY IN THE CONTEXT OF THIS PROJECT, THE CONDITIONS OF SECTION 80-IB(10) O F THE ACT HAVE TO BE EXAMINED. ACCORDING TO THE LEARNED COUNSEL, ASSESSI NG OFFICER ERRED IN OBSERVING THAT ON ACCOUNT OF A COMMON APPROVAL GRAN TED BY PCMC, THE TWO PROJECTS WERE ONE AND NOT SEPARATE. ACCORDING TO HI M, THOUGH THE CONSTRUCTION OF TWO PROJECTS HAVE BEEN SANCTIONED BY WAY OF COMM ON APPROVAL AT A CERTAIN POINT OF TIME, THE SAME CANNOT BE TAKEN TO MEAN THA T THE TWO CONSTITUTED A SINGLE PROJECT FOR THE PURPOSES OF SECTION 80-IB(10 ) OF THE ACT. THE LEARNED COUNSEL VEHEMENTLY POINTED OUT THAT THE REQUIREMENT OF SECTION 80-IB(10) OF THE ACT IS THAT THE PROJECT IN QUESTION SHOULD BE A PPROVED BY A LOCAL AUTHORITY, AND SUCH A REQUIREMENT IS FULFILLED IN THE PRESENT CASE. THE LEARNED COUNSEL ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 POINTED OUT THAT THE EXPRESSION HOUSING PROJECT H AS NOT BEEN DEFINED IN SECTION 80-IB(10) OF THE ACT. IT IS SUBMITTED THAT EVEN A SINGLE BUILDING OR A GROUP OF BUILDINGS COULD ALSO CONSTITUTE A HOUSING PROJECT AND THEREFORE IT WAS NOT CORRECT ON THE PART OF THE ASSESSING OFFICER TO SAY THAT ALL THE BUILDINGS SANCTIONED BY A LOCAL AUTHORITY UNDER ONE PLAN WO ULD ALONE CONSTITUTE A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80-IB (10) OF THE ACT. IN THIS CONNECTION, HE HAS INVITED OUR ATTENTION TO THE JUD GEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. M/S. VANDA NA PROPERTIES, INCOME TAX APPEAL NO. 3633 OF 2009 DATED 28.03.2012, COPY OF WHICH HAS ALSO BEEN PLACED ON RECORD. IT WAS CONTENDED THAT THE LOWER A UTHORITIES HAVE TRAVELLED BEYOND THE PROVISIONS OF SECTION 80-IB(10) OF THE A CT BY EQUATING THE SANCTIONED PLAN WITH THE MEANING OF HOUSING PROJEC T FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. 16. APART FROM THE AFORESAID, LEARNED COUNSEL CONTE NDED THAT FACTUALLY ALSO THE TWO PROJECTS WERE NOT ONLY PERCEIVED BUT ALSO E XECUTED AS INDEPENDENT AND SEPARATE PROJECTS BY THE ASSESSEE. FOR THIS PUR POSE, HE HAS REFERRED TO THE RELEVANT PAGES OF THE PAPER BOOK CONTAINING THE PLANS AND BROCHURES OF THE TWO PROJECTS TO SHOW THAT THEY HAVE BEEN CONCEI VED AND MARKETED SEPARATELY. REFERENCE HAS ALSO BEEN MADE TO CERTAIN ADVERTISEMENTS OF THE PROJECTS, COPIES OF WHICH HAVE BEEN PLACED IN THE P APER BOOK, TO POINT OUT THAT THE TWO PROJECTS WERE ADVERTISED ALTOGETHER SEPARAT ELY. 17. WITH REGARD TO THE ACTION OF THE ASSESSING OFFI CER IN RELYING UPON THE STATEMENT OF THE CHIEF ENGINEER, PCMC, THE LEARNED COUNSEL POINTED OUT THAT FROM THE POINT OF PCMC ALL THE BUILDINGS SANCTIONED UNDER ONE PLAN MAY CONSTITUTE A SINGLE PROJECT, SO HOWEVER THIS WAS NO T THE POSITION FOR THE PURPOSES OF EXAMINING ASSESSEES CLAIM FOR DEDUCTIO N U/S. 80-IB(10) OF THE ACT. IT WAS ALSO SUBMITTED THAT UTILIZATION OF EXTR A FSI OF THE ROW HOUSES PROJECT FOR THE PURPOSES OF CONSTRUCTION OF FLATS DOES NOT INDICATE THAT IT WAS A SINGLE ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 PROJECT. THE LEARNED COUNSEL EMPHASIZED THAT THE 29 5 ROW HOUSES PROJECT CAN INDEPENDENTLY CONSTITUTE A HOUSING PROJECT AND TH E ELIGIBILITY OF ASSESSEES CLAIM FOR DEDUCTION U/S. 80-IB(10) OF THE ACT IS TO BE CONSIDERED IN THAT LIGHT. IT WAS SUBMITTED THAT NO DEDUCTION, EITHER IN THIS YEA R OR IN THE SUBSEQUENT YEARS, HAVE BEEN CLAIMED WITH REGARD TO THE S 3 PROJECT AND THAT ON THIS ASPECT THERE IS NOT DISPUTE. 18. A REFERENCE WAS ALSO MADE TO THE AUDIT REPORT S UBMITTED IN FORM NO.10CCB WHEREBY THE ASSESSEES CLAIM FOR DEDUCTION U/S. 80-IB(10) OF THE ACT WAS ENUMERATED. IN THE SAID REPORT, THE TOTAL L AND AREA STATED IS 55950 SQ.MTRS., WHICH IS THE AREA ON WHICH ASSESSEE UNDER TOOK DEVELOPMENT OF SWRH PROJECT CONSISTING OF 295 ROW HOUSES, THUS S HOWING THAT SWRH PROJECT WAS CONCEIVED AS A SEPARATE PROJECT FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. 19. IN THE COURSE OF HEARING, THE LEARNED COUNSEL H AS REFERRED AND RELIED ON THE FOLLOWING DECISIONS : (I) PUNE BENCH OF THE TRI BUNAL IN THE CASE OF M/S. RAHUL CONSTRUCTION CO. VS. ITO, ITA NO.1250/PN/2009 DATED 30.03.2012; (II) MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SA ROJ SALES ORGANISATION VS. ITO, (2008) 115 TTJ 485 (MUMBAI); (III) BANGALORE B ENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. BRIGADE ENTERPRISES (P) LTD. , (20 08) 119 TTJ 269 (BANG); (IV) MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MU DHIT MADANLAL GUPTA VS. ACIT, (2011) 51 DTR 217 (MUMBAI); AND, (V) PUNE BEN CH OF THE TRIBUNAL IN THE CASE OF M/S RUNWAL MULTIHOUSING PVT. LTD. VS. A CIT, ITA NO. 1015, 1016 AND 1017/PN/2011 DATED 21.11.2012. . 20. AFTER HAVING SUBMITTED THAT SWRH PROJECT WAS A SEPARATE PROJECT CONSISTING OF 295 ROW HOUSES, THE LEARNED COUNSEL P ROCEEDED TO DEMONSTRATE THAT CONSTRUCTION OF THE SAID PROJECT WAS COMPLETE BY 31.03.2008. THE COMPLETION CERTIFICATE FOR 293 ROW HOUSES WAS RECEI VED BY THE ASSESSEE PRIOR TO 31.03.2008, AND A REFERENCE HAS BEEN MADE TO PAG E 289 OF THE PAPER ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 BOOK, WHEREIN IS PLACED A COPY OF SUCH CERTIFICATE. FOR THE BALANCE TWO ROW HOUSES, IT IS EXPLAINED THAT THE COMPLETION CERTIFI CATE WAS WITHHELD FOR REASONS EXTRANEOUS TO THE NON-COMPLETION OF CONSTRUCTION; A ND, IN ANY CASE, IT HAS BEEN SUBSEQUENTLY ISSUED BY PCMC ON 28.06.2012 BUT WITH EFFECT FROM 26.03.2008, WHICH IS EVIDENT FROM THE COPY OF THE S AID CERTIFICATE PLACED IN THE PAPER BOOK AT PAGE 293. THE LEARNED COUNSEL POINTED OUT THAT THE CONSTRUCTION OF THE TWO ROW HOUSES WAS ALSO COMPLET ED BEFORE 31.03.2008 AND THE TWO ROW HOUSES WERE SOLD BY THE ASSESSEE AND WE RE BEING USED BY THE CUSTOMERS. IN SUPPORT, REFERENCE HAS BEEN MADE TO T HE PROPERTY TAX BILLS ISSUED BY THE PCMC. IT WAS SUBMITTED THAT THE ASSE SSEE HAD APPLIED FOR OBTAINING THE COMPLETION CERTIFICATE IN TIME, I.E. ON 26.03.2008 BUT THE CERTIFICATE HAS BEEN ISSUED BY PCMC BELATEDLY AND T HIS WOULD NOT MEAN THAT THE ASSESSEE HAS NOT COMPLETED THE PROJECT IN TIME. IN THIS CONTEXT, RELIANCE WAS PLACED ON THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF HINDUSTAN SAMUHA AWAS LTD. VS. ITO, IN ITA NOS. 945 TO 950/PN/2010 DATED 30.08.2011. ACCORDINGLY, IT IS CONTENDED THAT ASSES SEE FULFILLED THE CONDITION OF COMPLETION OF HOUSING PROJECT BY 31.03.2008 AND THU S IT WAS ELIGIBLE FOR DEDUCTION U/S. 80-IB(10) OF THE ACT. ON THIS ASPEC T, RELIANCE HAS ALSO BEEN PLACED ON THE DECISION OF THE PUNE BENCH OF TRIBUNA L IN THE CASE OF M/S. KUNDAN REAL ESTATE VS. ITO IN ITA NO.126/PN/2010 DA TED 26.06.2012 FOR THE PROPOSITION THAT ONCE THE PCMC ISSUED THE COMPLETIO N CERTIFICATE IT WOULD RELATE BACK TO THE DATE OF APPLICATION I.E. 26.03.2 008 IN THE PRESENT CASE AND THUS ASSESSEE FULFILLS THE CONDITION OF COMPLETING THE CONSTRUCTION PRIOR TO 31.03.2008 CONTAINED IN SECTION 80IB(10)(A)(I) OF T HE ACT. 21. IN CONTRAST, THE LEARNED DEPARTMENTAL REPRESENT ATIVE APPEARING FOR THE REVENUE HAS JUSTIFIED THE ORDERS OF THE AUTHORITIES BELOW BY POINTING OUT THAT THE SWRH AND S 3 PROJECTS COULD NOT BE CONSIDERED AS SEPARATE PROJ ECTS UNDERTAKEN BY THE ASSESSEE. ACCORDING TO THE LEARNE D DEPARTMENTAL REPRESENTATIVE, THE SANCTION FOR SWRH AND S 3 PROJECTS HAVE BEEN GIVEN BY ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 THE PCMC UNDER A SINGLE COMMON APPROVAL AND THEREFO RE THE COMBINED PROJECT OF SWRH AND S 3 WOULD CONSTITUTE A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80-IB(10) OF THE ACT ALSO. IT WAS POINTED OUT THAT EVEN AS PER THE EXPLANATION RENDERED BY CHIEF ENGINEER, PCM C THE TWO PROJECTS WERE NOT SEEN AS SEPARATE PROJECTS BY THE PCMC. THE LEAR NED DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT MERELY BECAUSE THE TWO PROJECTS WERE ADVERTISED AND MARKETED SEPARATELY CANNOT BE INTERP RETED TO MEAN THAT ASSESSEE UNDERTOOK DEVELOPMENT OF TWO SEPARATE PROJ ECTS BECAUSE THE FACT REMAINED THAT THEY HAVE BEEN SANCTIONED UNDER ONE C OMMON APPROVAL PLAN AND THUS IT WAS TO BE CONSIDERED AS A SINGLE PROJEC T. 22. THE LEARNED DEPARTMENTAL REPRESENTATIVE ALSO JU STIFIED THE ACTION OF CIT(A) IN HOLDING THAT EVEN IF SWRH PROJECT WAS T O BE CONSIDERED AS A SEPARATE PROJECT CONSISTING OF 295 ROW HOUSES, THE ASSESSEE WAS STILL NOT ELIGIBLE FOR DEDUCTION U/S. 80IB(10) OF THE ACT, BE CAUSE BEFORE THE STIPULATED DATE OF 31.03.2008, COMPLETION CERTIFICATE WAS ISSU ED BY PCMC ONLY FOR 293 ROW HOUSES. 23. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISIONS CITED AT BAR. SECTION 80-IB(10) OF THE ACT PERMITS DEDUCTION TO AN ASSESSEE UNDERTAKING DEVELO PMENT AND BUILDING OF A HOUSING PROJECT APPROVED BY A LOCAL AUTHORITY; AND, SUCH DEDUCTION IS ALLOWED TO THE EXTENT OF 100% OF PROFITS DERIVED FR OM THE HOUSING PROJECT, SUBJECT TO THE CONDITIONS SPECIFIED THEREIN. SHORN OF OTHER DETAILS, THE ONLY CONDITION RELEVANT FOR THE PRESENT PURPOSE IS CONTA INED IN CLAUSE (A) OF SECTION 80-IB(10) OF THE ACT, WHICH IS WITH REGARD TO TIME- LIMITS FOR COMPLETION OF CONSTRUCTION OF HOUSING PROJECT. IN THE PRESENT CASE, THERE IS NO DISPUTE THAT THE PERMISSIBLE PERIOD FOR COMPLETION OF CONSTRUCTI ON IS TO BE GOVERNED BY SUB- CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) OF TH E ACT, BECAUSE THE HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY I. E. PCMC BEFORE 01.04.2004; ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 AND, ACCORDINGLY THE PROJECT IS REQUIRED TO BE COMP LETED ON OR BEFORE 31.03.2008. TO THE AFORESAID EXTENT, THERE IS NO DI FFERENCE BETWEEN ASSESSEE AND THE REVENUE. HOWEVER, THE DIFFERENCE ARISES AS TO WHICH IS THE HOUSING PROJECT THAT IS REQUIRED TO BE EVALUATED TO ASCERT AIN WHETHER CONSTRUCTION HAS BEEN COMPLETED ON OR BEFORE 31.03.2008 IN TERMS OF SECTION 80-IB(10)(A)(I) OF THE ACT. AS PER THE REVENUE, THE PROJECT TO BE CON SIDERED COMPRISES OF 611 RESIDENTIAL UNITS (I.E. 295 ROW HOUSES AND 316 FLAT S) AND, IF IT IS SO CONSIDERED, THE ASSESSEE HAS NOT COMPLETED CONSTRUCTION OF THE PROJECT BEFORE 31.03.2008 AND THUS ASSESSEE BECOMES INELIGIBLE FOR THE CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT. 24. PER CONTRA , THE CLAIM OF THE ASSESSEE IS THAT THE SWRH PROJ ECT CONSISTING OF CONSTRUCTION OF 295 ROW HOUSES IS TO BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80-IB(10)(A)(I ) OF THE ACT AS THE CLAIM FOR DEDUCTION U/S. 80-IB(10) OF THE ACT IS CONFINED TO THE PROFITS DERIVED FROM THE SAID SWRH PROJECT AND AS PER THE ASSESSEE IT IS A SEPARATE AND INDEPENDENT PROJECT WHICH FULFILLS ALL THE CONDITIONS FOR THE P URPOSES OF SECTION 80-IB(10) OF THE ACT. 25. OSTENSIBLY, THE PERTINENT ISSUE WHICH IS REQUIR ED TO BE ADJUDICATED IN THE PRESENT CASE IS AS TO WHETHER SWRH PROJECT AND S 3 PROJECT ARE TWO INDEPENDENT PROJECTS OR A SINGLE PROJECT FOR THE PU RPOSES OF DETERMINING ASSESSEES ELIGIBILITY FOR THE CLAIM OF DEDUCTION U /S. 80-IB(10) OF THE ACT. WE MAY EMPHASIZE HERE THAT THE CLAIM OF THE ASSESSEE F OR DEDUCTION U/S. 80-IB(10) OF THE ACT IS CONFINED TO THE PROFIT S DERIVED IN RESPECT OF THE SWRH PROJECT ALONE. SECTION 80-IB(10) OF THE ACT ALLOWS EXEMPTION OF PROFITS DERIVED FROM DEVELOPING AND BUILDING OF A HOUSING P ROJECT, SUBJECT TO THE CONDITIONS PRESCRIBED THEREIN. NOTABLY, THE EXPRESS ION HOUSING PROJECT IS NOT BEEN DEFINED IN SECTION 80-IB(10) OF THE ACT, A SIT UATION THAT HAS ALSO BEEN NOTED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. VANDANA ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 PROPERTIES (SUPRA). IN-FACT, THE HONBLE HIGH COURT WAS CONSIDERING A PROJECT WHICH WAS FALLING IN THE PURVIEW OF THE MUMBAI MUNI CIPAL CORPORATION ACT, 1988 AS ALSO UNDER THE DEVELOPMENT CONTROL REGULATI ONS FOR GREATER MUMBAI, 1991 AND THE HONBLE COURT NOTICED THAT THE EXPRESS ION HOUSING PROJECT IS NOT DEFINED IN THE AFORESAID TWO ENACTMENTS ALSO. THERE FORE, THE EXPRESSION HOUSING PROJECT IN SECTION 80-IB(10) OF THE ACT W OULD HAVE TO BE CONSTRUED AS COMMONLY UNDERSTOOD, AS PER THE HONBLE BOMBAY HI GH COURT IN THE CASE OF M/S VANDANA PROPERTIES (SUPRA). AS PER THE HONBLE BOMBAY HIGH COURT, CONSTRUCTION OF EVEN ONE BUILDING WITH SEVERAL RESI DENTIAL UNITS OF THE PRESCRIBED SIZE WOULD CONSTITUTE A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80-IB(10) OF THE ACT. THE RELEVANT PORTION OF THE O RDER OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. VANDANA PROPERTIES ( SUPRA) IS AS UNDER :- 18. THE EXPRESSION HOUSING PROJECT IS NEITHER DE FINED UNDER SECTION 2 OF THE ACT NOR UNDER SECTION 80IB(10) OF THE ACT. EVEN UNDER THE MUMBAI MUNICIPAL CORPORATION ACT, 1988 AS ALSO UNDE R THE DEVELOPMENT CONTROL REGULATIONS FOR GREATER MUMBAI, 1991, THE E XPRESSION HOUSING PROJECT IS NOT DEFINED. THEREFORE, THE EXPRESSION HOUSING PROJECT IN SECTION 80IB(10) WOULD HAVE TO BE CONSTRUED AS COMMONLY UND ERSTOOD. 19. AS RIGHTLY CONTENDED BY MR. INAMDAR, LEARNED SE NIOR ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE AND MR. MISTRI, LEARNED SENIOR ADVOCATE AND MR. JOSHI, LEARNED ADVOCATE APPEARING ON BEHALF OF THE INTERVENORS, THE EXPRESSION HOUSING PROJECT IN COMMON PARLANCE WOU LD MEAN CONSTRUCTING A BUILDING OR A GROUP OF BUILDINGS CONSISTING OF SEVE RAL RESIDENTIAL UNITS. IN FACT, THE EXPLANATION IN SECTION 80IB(10) SUPPORTS THE CO NTENTION OF THE ASSESSEE THAT THE APPROVAL GRANTED TO A BUILDING PLAN CONSTI TUTES APPROVAL GRANTED TO A HOUSING PROJECT. THEREFORE, IT IS CLEAR THAT CONSTR UCTION OF EVEN ONE BUILDING WITH SEVERAL RESIDENTIAL UNITS OF THE SIZE NOT EXCE EDING 1000 SQURE FEET (E BUILDING IN THE PRESENT CASE) WOULD CONSTITUTE A H OUSING PROJECT UNDER SECTION 80IB(10) OF THE ACT. 20. THE QUESTION, THEN, TO BE CONSIDERED IS, WHETHE R CONSTRUCTION OF E BUILDING IS AN INDEPENDENT HOUSING PROJECT OR E XTENSION OF THE HOUSING PROJECT ALREADY EXISTING ON THE PLOT IN QUESTION. I T IS THE CONTENTION OF THE REVENUE THAT SINCE THE APPROVAL FOR CONSTRUCTION OF E BUILDING WAS GRANTED BY THE LOCAL AUTHORITY SUBJECT TO THE CONDITIONS SE T OUT IN THE FIRST APPROVAL GRANTED ON 12 TH MAY 1993 FOR CONSTRUCTION OF A AND B BUILDING, CON STRUCTION OF E BUILDING MUST BE CONSIDERED TO BE THE EXTENSION OF THE EARLIER HOUSING PROJECT FOR WHICH APPROVAL WAS GRANTED PRIOR TO 1 ST OCTOBER 1998 AND, THEREFORE, THE BENEFIT OF SECTION 80IB(10) CANNOT B E GRANTED. THERE IS NO MERIT IN THE ABOVE ARGUMENT, BECAUSE, WHEN THE PLANS FOR A, B, C AND D BUILDINGS WERE APPROVED DURING THE PERIOD FROM 1993 TO 1996, CONSTRUCTION OF E BUILDING WAS NOT EVEN CONTEMPLATED ON THE PLOT IN Q UESTION. IT IS ONLY IN THE YEAR 2001 WHEN THE STATUS OF THE LAND WAS CONVERTED FROM SURPLUS VACANT LAND INTO WITHIN THE CEILING LIMIT LAND BY THE STATE GOV ERNMENT, AN ADDITIONAL BUILDING COULD BE CONSTRUCTED ON THE PLOT IN QUESTI ON AND ACCORDINGLY BUILDING ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 PLAN FOR CONSTRUCTION OF E BUILDING WAS SUBMITTED AND THE SAME WAS APPROVED BY THE LOCAL AUTHORITY ON 11 TH OCTOBER 2002. 26. SIMILARLY, THE HONBLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS PVT. LTD. VS. ACIT, (2013) 255 CTR 149 (M AD) ALSO NOTED THAT THE EXPRESSION HOUSING PROJECT IS NOT DEFINED IN SECT ION 80-IB(10) OF THE ACT, AND, BY REFERRING TO THE DEFINITION OF HOUSING PROJECT UNDER EXPLANATION TO SECTION 80HHBA OF THE ACT OBSERVED THAT THE EXPRESSION HOU SING PROJECT UNDER SECTION 80-IB(10) OF THE ACT REFERS TO ANY BUILDIN G OTHER THAN ROAD, BRIDGE OR OTHER STRUCTURE. ACCORDING TO THE HONBLE HIGH COUR T EACH BLOCK IN A LARGER PROJECT HAS TO BE TAKEN AS AN INDEPENDENT BUILDING AND HENCE A HOUSING PROJECT FOR THE PURPOSE OF CONSIDERING THE CLAIM O F DEDUCTION U/S. 80-IB(10) OF THE ACT. 27. AGAIN, THE HONBLE MADRAS HIGH COURT IN THE CAS E OF CIT VS. ARUN EXCELLO FOUNDATIONS (P) LTD. (2013) 212 TAXMAN 342 (MAD) NOTED THE ABSENCE OF DEFINITION OF THE EXPRESSION HOUSING PR OJECT IN SECTION 80-IB(10) OF THE ACT AND HELD THAT HOUSING PROJECT IS TO BE UNDERSTOOD AS A BUILDING PROJECT AND NEED NOT BE RESTRICTED TO A RE SIDENTIAL PROJECT; THAT THE PROJECT MAY BE EITHER OUT AND OUT RESIDENTIAL OR CO MMERCIAL PROJECT OR MIX UP OF BOTH; AND, AS PER THE HONBLE HIGH COURT A HOUSING PROJECT, PURELY OF COMMERCIAL NATURE, APPROVED BY A LOCAL AUTHORITY, IS ALSO A HOUSING PROJECT ENTITLED TO DEDUCTION U/S. 80-IB(10) OF THE ACT. 28. IN-FACT, AT THIS POINT WE MAY REFER TO THE DECI SION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MUDHIT MADANLAL GUPT A (SUPRA) WHEREIN A SIMILAR ISSUE HAS BEEN CONSIDERED. IN THIS CASE, ASSESSEE H AD CONSTRUCTED A PROJECT WITH FOUR WINGS, NAMELY, A, B, C AND D. THE CLAIM O F DEDUCTION U/S. 80-IB(10) OF THE ACT WAS DENIED ON THE GROUND THAT ASSESSEE W AS NOT ABLE TO OBTAIN THE COMPLETION CERTIFICATE IN RESPECT OF WING D. THE REVENUE CANVASSED THAT THE PROJECT WAS A SINGLE PROJECT CONSISTING OF FOUR WIN GS AND NON-COMPLETION OF ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 WING D, DISENTITLED THE ASSESSEE FROM THE CLAIM O F DEDUCTION U/S. 80-IB(10) OF THE ACT. THE TRIBUNAL, AFTER NOTICING THAT THE EXPR ESSION HOUSING PROJECT IS NOT DEFINED IN SECTION 80-IB(10) OF THE ACT REFERRED TO THE DICTIONARY MEANING OF THE EXPRESSION HOUSING PROJECT AND HELD THAT EVEN SEG REGATED BLOCK OF BUILDINGS CAN ALSO BE CONSTRUED AS A HOUSING PROJECT FOR TH E PURPOSES OF SECTION 80-IB(10) OF THE ACT AND, DEDUCTION IS TO BE ALLOWE D IF ALL THE CONDITIONS OF SECTION 80IB(10) OF THE ACT ARE FULFILLED. IT WAS EXPLAINED THAT HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VARIOUS GROUP OF BU ILDINGS CONSTRUCTED ON A PARTICULAR LAND BUT IT CAN ALSO BE A PARTICULAR BUI LDING OR BUILDINGS, WHICH IS PART OF A LARGER PROJECT. WHATEVER PORTION OF THE LARGER PROJECT WHICH SATISFIED THE CONDITIONS OF SECTION 80-IB(10) OF THE ACT WAS HELD TO BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80-IB (10) OF THE ACT. THE FOLLOWING OBSERVATIONS OF THE TRIBUNAL ARE WORTHY OF NOTICE : - COMING TO THE SECOND OBJECTION RAISED BY THE REVEN UE I.E., THAT THE ASSESSEE HAS NOT COMPLETED THE PROJECT. THIS OBJECT ION IS RAISED ON THE BASIS THAT SINCE THE PROJECT CONSISTED OF FOUR WINGS I.E. , A, B, C AND D AND SINCE COMPLETION CERTIFICATE HAS NOT BEEN FILED FOR D WIN G AND, THEREFORE, THE PROJECT CANNOT BE SAID TO HAVE BEEN COMPLETED. THIS WOULD L EAD ONE TO THE QUESTION AS TO WHAT IS THE MEANING OF A HOUSING PROJECT. LEG ISLATURE HAS NOT PROVIDED ANY DEFINITION OF THE HOUSING PROJECT AND, THEREFOR E, THE DEFINITION HAS TO BE CONSTRUED BY MAKING REFERENCE TO THE DICTIONARY AND AS LONG AS THE SEGREGATED BLOCKS ARE BEING ELIGIBLE FOR DEDUCTION UNDER S. 80-IB(10), THEN SAME SHALL BE CONSTRUED AS ELIGIBLE HOUSING PROJECT AND CONSTRUCTED ON A PARTICULAR LAND BUT IT CAN ALSO BE A PARTICULAR BUI LDING OR ANY BUILDING WHICH IS PART OF THE LARGE PROJECT. WHATEVER PORTION OF THE HOUSING PROJECT IS OTHERWISE FOUND TO BE ELIGIBLE HAS TO BE CONSIDERED AS A HOUS ING PROJECT FOR THE PURPOSE OF DEDUCTION UNDER S. 80-IB(10). 29. SIMILAR VIEW HAS BEEN TAKEN BY THE PUNE BENCH O F THE TRIBUNAL IN THE CASE OF M/S RUNWAL MULTIHOUSING PVT. LTD. (SUPRA). IN THIS CASE, ASSESSEE HAD OBTAINED SANCTION FOR CONSTRUCTION OF BUILDINGS A T O F AND 17 ROW HOUSES IN A SINGLE PLAN FROM THE CONCERNED LOCAL AUTHORITY, I .E. PUNE MUNICIPAL CORPORATION. LATER, ASSESSEE CONSTRUCTED BUILDINGS A, C, D, E AND 17 ROW HOUSES BUT DID NOT CONSTRUCT BUILDINGS B AND F. TH E CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT WAS DENIED ON THE GROUND THAT BUILDINGS B AND F WERE NOT CONSTRUCTED AND THUS THE CONDITION OF COMPLETION OF HOUSING PROJECT WAS NOT ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 SATISFIED BY THE ASSESSEE. THE TRIBUNAL HELD THAT I F THE PORTION COMPLETED BY THE ASSESSEE COMPLIED WITH THE REQUIREMENTS OF SECT ION 80-IB(10) OF THE ACT, THE SAME SHOULD BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSE OF DEDUCTION U/S. 80-IB(10) OF THE ACT. THE RELEVANT D ISCUSSION IN THE ORDER OF THE TRIBUNAL IS AS UNDER : - 21. SO FAR AS THE SECOND GRIEVANCE OF THE REVENUE THAT BUILDING NOS. B AND F ARE NOT CONSTRUCTED AND THEREFORE THE PROJE CT HAS NOT BEEN COMPLETED AS PER THE APPROVED PLAN, WE FIND THE BUILDINGS A, C, D, E AND THE 17 ROW HOUSES ARE CONSTRUCTED ON A PLOT AREA OF MORE THAN 1 ACRE, NONE OF THE FIATS/ROW HOUSES IS BEYOND 1500 SQ.FT. AND THE COMP LETION THEREOF HAS BEEN OVER BEFORE 31-03-2008 IN VIEW OF OUR FINDINGS ABOV E. 21.1 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. RAHUL CONSTRUCTION CO. VS. ITO - ITA NO.L250/PN/2009 AND ITA NO.707/PN/2010 ORDER DATED 30-03-2012 HAS HELD AS UNDER : '8. CONSIDERING THE ABOVE SUBMISSION, AND HAVING GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON, WE FIND THAT THE ISSUE INVOL VED IS AS TO WHETHER THE ASSESSEE HAD COMPLETED THE HOUSING PROJECT WITH IN THE PRESCRIBED TIME LIMIT SINCE THE DATE OF FIRST APPROVAL OF THE PROJECT BY THE PMC. 9. TO DECIDE THE ABOVE ISSUE, IT IS NECESSARY TO DE CIDE 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 BENEFIT OF DEDUCTION U/S. 80 IB (10) OF THE AC T. THERE IS NO DISPUTE ON SOME MATERIAL FACTS THAT OUT OF 16 BUILDINGS IN THE HOUSING PROJECT OF THE ASSESSEE ONLY 11 BUILDINGS WERE COMPLETED WITHI N THE PRESCRIBED TIME LIMIT UPTO 31 ST MARCH 2008. THE LAY OUT PLAN IN RESPECT OF ENTIRE COMPLEX WAS SANCTIONED 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 INCOME TAX ACT BUT IN THE CONTEXT OF DEDUCTION U/S. 80IB(10) AN EXPLANATION HAS BEEN PROVIDED BELOW CLAUSE (A) TO SUB-SECTION (10) TO SECTION 80 IB. FO R A READY REFERENCE, THE SAID EXPLANATION IS BEING REPRODUCED HEREUNDER : (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PR OJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHIC H THE 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 DATE ON WHICH THE COMPLETI ON CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY.' THE VERY READING OF ABOVE EXPLANATION (I), IT MAKES CLEAR THAT FOR THE ELIGIBILITY OF THE DEDUCTION PROVIDED U/S. 80 IB (1 0) OF THE ACT, THE DATE ON WHICH BUILDING PLAN OF SUCH HOUSING PROJECT HAS BEEN FIRSTLY APPROVED BY THE LOCAL AUTHORITY WILL BE TREATED AS APPROVAL IN RESPECT OF THE HOUSING PROJECT. WHEN WE READ EXPLANATION (II) WITH EXPLANATION (I) ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 IT MAKES CLEAR THAT COMPLETION OF CONSTRUCTION OF S UCH BUILDING PLAN FIRST APPROVED BY THE LOCAL AUTHORITY WILL BE TAKEN THE D ATE OF COMPLETION OF CONSTRUCTION OF SUCH BUILDING PLAN WHEN COMPLETION CERTIFICATE HAS BEEN ISSUED BY THE LOCAL AUTHORITY. IN OTHER WORDS, IN CLAUSE (I) OF THE EXPLANATION, IT HAS BEEN MADE CLEAR THAT WOULD BE T HE HOUSING PROJECT, 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 PROJECT ISSUED BY LOCAL AUTHORITY TO COMPUT E THE PRESCRIBED TIME LIMIT FOR VERIFICATION OF ELIGIBILITY OF ASSES SEE FOR THE CLAIMED DEDUCTION. IN VIEW OF THE ABOVE EXPLANATION, WE FIN D SUBSTANCE IN THE CONTENTION OF THE ID. A.R. THAT APPROVAL OF THE HOU SING PROJECT AND APPROVAL OF BUILDING PLAN ARE TWO DIFFERENT CONCEPT S. THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. BRIGA DE ENTERPRISES (P) LTD. (SUPRA) HAS HELD THAT PLAN FOR DEVELOPMENT IS ONLY A WORK ORDER AND NOT FINAL PLAN SANCTIONED BY THE LOCAL AUTHORIT Y. FOR ANY PROJECT, THERE COULD NOT HAVE BEEN A PLAN WITHOUT SUBMISSION OF THE DETAILED BUILDING PLANS, BY THE ARCHITECT AND WHAT REQUISITE DETAILS REQUIRED TO BE SUBMITTED FOR APPROVAL OF THE BUILDING PLANS BY THE LOCAL AUTHORITY. IN THE CASE OF SAROJ SALES ORGANIZATION VS. ITO (SUPRA ), BEFORE MUMBAI BENCH, ALMOST SIMILAR FACTS AS BEFORE US WERE THERE . THE COMMENCEMENT CERTIFICATE IN RESPECT OF SIX WINGS IN BLOCK 'N' WAS SEPARATELY RECEIVED BY THE ASSESSEE AND ALL THE FLA TS IN BLOCK WERE LESS THAN 1000 SQ.FT. IT WAS HELD BY THE TRIBUNAL T HAT 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 OBSERV ED THAT BLOCK 'BC' WAS MEANT FOR HIGHER STRATA OF THE SOCIETY HAD BEEN KEPT SEPARATELY BY ASSESSEE IN ALL THE RESPECT, ASSESSEE HAD NOT CLAIM ED RELIEF U/S. 80IB IN RESPECT OF BLOCK 'BC' . IN THE CASE OF MUDHIT MA DANLAL GUPTA VS. ACIT (SUPRA ) BEFORE THE MUMBAI BENCH, IT HAS BEEN HELD THAT THE HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VAR IOUS GROUP OF BUILDINGS CONSTRUCTED ON THAT PARTICULAR LAND, BUT IT CAN ALSO BE A PARTICULAR BUILDING OR ANY BUILDING WHICH IS PART O F A LARGE PROJECT. IT HAS BEEN FURTHER HELD THAT WHATEVER PORTION OF THE HOUS ING PROJECT IS OTHERWISE FOUND TO BE ELIGIBLE HAS TO BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSE OF DEDUCTION U/S. 80 IB (10 ) OF THE ACT. SIMILAR VIEW HAS BEEN EXPRESSED BY MUMBAI BENCH OF THE TRIB UNAL IN THE CASE OF VANDANA PROPERTIES VS. ACIT (SUPRA). 10. IN VIEW OF ABOVE DISCUSSION, WE COME TO THE CONCLUSION THAT FOR VERIFICATION OF ELIGIBILITY OF BENEFIT CLAIMED U/S. 80 IB (10) OF THE ACT BY THE ASSESSEE ON BUILDINGS AL TO A5 IN 'ATUI NAGAR' AND BUILDINGS BL TO B6 IN 'RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LT D.', THE ASSESSING AUTHORITY HAS TO VERIFY AS TO WHEN THE BUILDING PLA NS FOR THESE BUILDINGS WERE FIRSTLY APPROVED BY THE LOCAL AUTHORITY AND TA KING THE SAID DATE OF APPROVAL A STARTING POINT, HE HAS TO VERIFY AS TO W HETHER THESE BUILDINGS WERE COMPLETED WITHIN THE PRESCRIBED TIME LIMIT I.E . 31 ST MARCH 2008 ON THE BASIS OF THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT ISSUED BY THE PMC. WHEN WE EXAMINE THE FACT S OF THE PRESENT CASE UNDER THE ABOVE BACKGROUND, WE FIND THAT THE A UTHORITIES BELOW HAVE NOT DISPUTED THE FACT FURNISHED IN THIS REGARD BY THE ASSESSEE THAT UNDER THE PROJECT 'ATUI NAGAR' CONSISTING OF BUILDI NGS AL TO A5, THE FIRST BUILDING PLAN FOR A TYPE WAS APPROVED BY THE PMC ON 29.4.2003 VIDE COMMENCEMENT CERTIFICATE NO. 4269 (PAGE NO. 4 OF TH E 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 ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 PAPER BOOK). THE SIZE OF THE PLOT ON WHICH THE A TY PE BUILDING I.E. AL TO A6 HAVE BEEN CONSTRUCTED IS 1,39,466 SQ.FT. THE PRO JECT A TYPE BUILDING I.E. AL TO A5 CONSISTS OF 360 RESIDENTIAL UNITS AND THE CONSTRUCTION HAS BEEN COMPLETED BETWEEN 10.1.2005 TO 31.8.2005 (PAGE NOS. 6 TO 9 OF PAPER BOOK). THE AUTHORITIES BELOW HAVE ALSO NOT DI SPUTED THIS MATERIAL FACT THAT RESIDENTIAL UNITS HAS A MAXIMUM BUILT UP AREA OF 1500 SQ.FT. LIKEWISE, THESE MATERIAL FACTS THAT B GROUP BUILDIN GS IN 'RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LTD.,' HAVE BEEN CONST RUCTED ON LAND AREA OF 138203 SQ.FT., HAS NOT BEEN DENIED BY THE A UTHORITIES BELOW. THEY HAVE ALSO NOT DENIED THESE MATERIAL FACTS THAT THE FIRST BUILDING PLAN WAS SANCTIONED ON 29.4.2003 VIDE COMMENCEMENT CERTIFICATE NO. 4269 ISSUED BY THE PMC (PAGE NO. 16 OF THE PAPE R BOOK). THE OTHER MATERIAL FACTS LIKE ACTUAL CONSTRUCTION WAS E XECUTED AS PER THE REVISED PLAN SANCTION ON 20 TH MARCH 2004 VIDE CC NO. 2225 (PAGE NO. 17), THE PROJECT CONSISTS OF 396 FLATS AND CONSTRUC TION OF THESE FLATS HAVE BEEN COMPLETED ON 14.7.2006 AS PER THE COMPLET ION CERTIFICATE 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 RESID ENTIAL PROJECT AND THERE IS NO COMMERCIAL AREA THEREIN. UNDER THE ABOV E CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE IS VERY MUCH E NTITLED TO THE CLAIMED DEDUCTION U/S. 80 IB (10) OF THE ACT ON THE BUILDINGS AL TO A5 IN 'ATUL NAGAR' AND BUILDINGS BL TO B6 IN 'RAHUL NISAR G CO-OPERATIVE HOUSING SOCIETY LTD.' THE ISSUE IS THEREFORE DECIDE D IN FAVOUR OF THE ASSESSEE. WE THUS WHILE SETTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE, DIRECT THE A.O TO ALLOW THE CLA IMED DEDUCTION U/S. 80 IB(10) IN QUESTION. THE RELATED GROUNDS ARE ACCO RDINGLY ALLOWED.' 21.2 WE FIND THAT BANGALORE BENCH OF THE ITAT IN THE CASE OF DY.CIT VS. BRIGADE ENTERPRISES (P) LTD. [119 TTJ 26 9 (BANG.)] HAS OBSERVED AS UNDER : DEDUCTION UNDER S.80IB - INCOME FROM DEVELOPING AND BUILDING HOUSING PROJECT -DIFFERENT UNITS OF A GROUP PROJECT - WHERE SOME OF THE RESIDENTIAL UNITS IN A BIGGER HOUSING PROJECT, TREA TED INDEPENDENTLY, ARE ELIGIBLE FOR RELIEF UNDER S.80IB(10), RELIEF SHOULD BE GIVEN PRO RATA AND SHOULD NOT BE DENIED BY TREATING THE BIGGER PROJECT AS A SINGLE UNIT, MORE SO, WHEN ASSESSEE OBTAINED ALL SANCTIONS, PERM ISSIONS AND CERTIFICATES FOR SUCH ELIGIBLE UNITS SEPARATELY - A SSESSEE UNDERTOOK A DEVELOPMENT PROJECT IN AN AREA OF 22 ACRES 19 GUNTA S CONSISTING OF 5 RESIDENTIAL BLOCKS, ROW HOUSES, OAK TREE PLACE, A C LUB, A COMMUNITY CENTRE, A SCHOOL AND A PARK AND CLAIMED DEDUCTION U NDER S. 80IB(10) IN RESPECT OF TWO RESIDENTIAL UNITS ONLY WHICH IF TAKE N SEPARATELY, WERE ELIGIBLE FOR THE RELIEF-AO TREATED THE ENTIRE PROJE CT AS A SINGLE UNIT AND DENIED RELIEF UNDER S.80IB(10) IN ENTIRETY - CIT(A) ALLOWED RELIEF UNDER S. 80IB(10) TREATING THE SAID TWO UNITS AS INDEPEND ENT UNITS - JUSTIFIED - MATERIAL ON RECORD SHOWED THAT THE VARIOUS LOCAL AU THORITIES DULY INSPECTED THE PLOT AND SANCTIONED PLAN FOR EACH OF THE BLOCKS SEPARATELY - GROUP HOUSING APPROVAL WAS APPROVAL OF A MASTER PLAN AS A CONCEPT - FURTHER, THE USE OF THE WORDS 'RESIDENT IAL UNITS' IN CL.(C) OF S.80IB(10) MEANS THAT DEDUCTION SHOULD BE COMPUTED UNIT-WISE - THEREFORE, IF A PARTICULAR UNIT SATISFIES THE CONDI TION OF S.8OIB, THE ASSESSEE IS ENTITLED FOR DEDUCTION AND IT SHOULD BE DENIED IN RESPECT OF THOSE UNITS ONLY WHICH DO NOT SATISFY THE CONDITION S - AGAIN, THE ACCOUNTING PRINCIPLES WOULD ALSO MANDATE RECOGNITIO N OF PROFITS FROM EACH UNIT SEPARATELY'. ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 21.3 IN VIEW OF THE ABOVE DECISIONS, WE ARE OF THE CONSIDERED OPINION THAT WHATEVER PORTION COMPLETED BY THE ASSESSEE WHI CH SATISFIES THE CONDITIONS PRESCRIBED U/S.80IB(10) IS ELIGIBLE FOR DEDUCTION. THE VARIOUS DECISIONS RELIED ON BY THE REVENUE ARE DISTINGUISHA BLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE ACCORDINGLY HOLD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80IB(10) IN RESPECT OF BUILDING N O.A,C,D,E AND THE 17 ROW HOUSES. THE GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ACCORDINGLY ALLOWED. 30. FROM THE AFORESAID DISCUSSION, IT CAN BE INFERR ED THAT IN ORDER TO UNDERSTAND THE MEANING OF THE EXPRESSION HOUSING P ROJECT FOR THE PURPOSE OF SECTION 80-IB(10) OF THE ACT, IN THE ABSENCE OF ANY DEFINITION SECTION 80-IB(10) OF THE ACT OR EVEN IN THE LOCAL DEVELOPMENT CONTROL RULES FOR PCMC, IT HAS TO BE CONSTRUED AS COMMONLY UNDERSTOOD. THE PLEA OF THE REVENUE THAT EXPRESSION HOUSING PROJECT SHOULD BE UNDERSTOOD T O MEAN THE PROJECT AS APPROVED BY THE LOCAL AUTHORITY IS NOT JUSTIFIED BECAUSE EVIDENTLY THE DEVELOPMENT CONTROL RULES OF THE LOCAL AUTHORITY I.E. PCMC DOES NOT DEFINE A HOUSING PROJECT. IN-FACT, FROM THE DISCUSSION IN THE FOREGOING PARAGRAPHS IT IS EVIDENT THAT EVEN A BUILDING OR A GROUP OF BUILDING S COMPRISED IN A LARGER PROJECT APPROVED BY A LOCAL AUTHORITY CAN BE CONS TRUED AS A HOUSING PROJECT FOR THE PURPOSE OF CONSIDERING A CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT. CONSIDERED IN THIS BACKGROUND, IN THE INSTANT CASE, THE PLEA OF THE ASSESSEE THAT SWRH PROJECT IS AN INDEPENDENT PROJECT FOR T HE PURPOSE OF CONSIDERING A CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT CANNOT BE SHUT-OUT MERELY BECAUSE PCMC APPROVED IT ALONGWITH THE S 3 PROJECT. THEREFORE, WHILE EVALUATING THE COMPLIANCE WITH THE CONDITION OF COMPLETION OF CONS TRUCTION OF THE PROJECT CONTAINED IN SECTION 80-IB(10)(A)(I) OF THE ACT, WE UPHOLD ASSESSEES PLEA THAT SWRH PROJECT BE CONSTRUED AS A HOUSING PROJECT, ESPECIALLY WHEN THE CLAIM FOR DEDUCTION U/S. 80-IB(10) OF THE ACT IS CONFINED TO THE PROFITS OF SWRH PROJECT. 31. APART FROM THE AFORESAID, FACTUALLY SPEAKING AL SO, IT EMERGES THAT SWRH PROJECT HAS BEEN DEVELOPED AND EXECUTED BY T HE ASSESSEE INDEPENDENT OF THE S 3 PROJECT. FIRSTLY, BY ITS VERY NATURE THE TWO PROJ ECTS ARE ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 DIFFERENT INASMUCH AS SWRH PROJECT CONSISTS OF RO W HOUSES ON A CONTIGUOUS PLOT SIZE OF MORE THAN ONE ACRE; WHEREAS, THE S 3 PROJECT CONSISTS OF ONLY MULTI-STOREYED FLATS. SECONDLY, IT IS ALSO NOTABLE THAT ASSESSEE MARKETED AND ADVERTISED THE TWO PROJECTS SEPARATELY. AT PAGES 25 5 TO 260 OF THE PAPER BOOK IS PLACED THE BROCHURE OF SWRH PROJECT IN WHICH T HERE IS NO REFERENCE TO THE S 3 PROJECT CONSISTING OF FLATS. SIMILARLY, THE BROCH URE IN RESPECT OF S 3 PROJECT PLACED IN THE PAPER BOOK AT PAGES 471 TO 475 ALSO D OES NOT CONTAIN ANY REFERENCE TO THE SWRH PROJECT CONSISTING OF ROW H OUSES. ON PAGE 263 OF THE PAPER BOOK IS A COPY OF A NEWSPAPER ADVERTISEMENT R ELEASED BY THE ASSESSEE REGARDING THE SWRH PROJECT OF ROW HOUSES , WHICH DOES NOT CONTAIN ANY REFERENCE TO S 3 PROJECT COMPRISING OF FLATS. THIRDLY, EVEN IN THE AUDIT REPORT FILED IN FORM NO. 10CCB CERTIFYING THE CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT, THE DEDUCTION HAS BEEN COMPUTED BY CONS IDERING SWRH PROJECT AS A SEPARATE PROJECT. IN THIS REPORT, SIZE OF THE PLOT OF LAND IS STATED TO BE 55950 SQ.MTRS., WHICH IS THE PLOT-AREA ON WHICH THE SWRH PROJECT CONSISTING OF 295 ROW HOUSES IS CONSTRUCTED. CONSIDERING ALL T HE AFORESAID FACTORS, WE FIND AMPLE FORCE IN THE PLEA OF THE ASSESSEE THAT SWRH PROJECT WAS NOT ONLY PERCEIVED BUT ALSO DEVELOPED AND EXECUTED AS A SEPA RATE PROJECT INDEPENDENT OF THE S 3 PROJECT, AND THUS ASSESSEE WAS JUSTIFIED IN CONSI DERING SWRH PROJECT AS HOUSING PROJECT FOR THE PURPOSES OF SE CTION 80-IB(10) OF THE ACT. 32. THE ARGUMENT OF THE REVENUE, BASED ON THE STATE MENT OF CHIEF ENGINEER, PCMC, IN OUR VIEW, DOES NOT HELP THE CASE OF THE REVENUE AS THE FOLLOWING DISCUSSION WOULD SHOW. THE CASE SET UP BY THE REVENUE IS THAT TWO PROJECTS HAVE BEEN SANCTIONED BY A COMMON APPROVAL AND THUS THE PCMC HAS VIEWED THE TWO PROJECTS AS A SINGLE COMPOSITE P ROJECT. IT IS CONTENDED BY THE REVENUE THAT THE EXPRESSION HOUSING PROJECT, THOUGH NOT DEFINED IN SECTION 80IB(10) OF THE ACT, SHOULD BE TAKEN TO BE THE PROJECT PERSE, AS APPROVED BY A LOCAL AUTHORITY FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. NO DOUBT, FOR A HOUSING PROJECT TO BE ELIGIBLE FO R DEDUCTION U/S. 80IB(10) OF ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 THE ACT, IT IS REQUIRED TO BE APPROVED BY A LOCAL AUTHORITY, SO HOWEVER, THE PHRASEOLOGY OF SECTION 80IB(10) OF THE ACT DOES NOT REFLECT A LEGISLATIVE INTENT THAT THE PROJECT SHOULD BE AS APPROVED BY A LOCA L AUTHORITY. THE REQUIREMENT OF SECTION 80IB(10) OF THE ACT TO THE EFFECT THAT P ROJECT SHOULD BE APPROVED BY A LOCAL AUTHORITY IS FULFILLED NO SOONER WHEN THE HOUSING PROJECT CONSIDERED BY AN ASSESSEE IS APPROVED BY A LOCAL AUTHORITY. MOREOVER, THE EXPRESSION HOUSING PROJECT IS NOT DEFINED IN THE DEVELOPMENT CONTROL RULES FOR PCMC I.E. THE LOCAL AUTHORITY IN THE CASE BEFORE US AN D THUS, THE SAID ENACTMENT CANNOT BE RESORTED TO FOR THE PURPOSE OF UNDERSTAND ING THE MEANING OF EXPRESSION HOUSING PROJECT CONTAINED IN SECTION 8 0IB(10) OF THE ACT. THEREFORE, SO LONG AS THE CLAIM OF DEDUCTION IS IN RELATION TO A HOUSING PROJECT, WHICH HAS BEEN APPROVED BY THE LOCAL AUTHORITY, I T WOULD SATISFY THE REQUIREMENT OF SECTION 80IB(10) OF THE ACT. PERTIN ENTLY, IF THE PROPOSITION OF THE REVENUE IS TO BE UPHELD, THE SAME WOULD BE QUITE CO NTRARY TO THE MANNER IN WHICH THE EXPRESSION HOUSING PROJECT CONTAINED IN SECTION 80IB(10) OF THE ACT HAS BEEN UNDERSTOOD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA) AND ALSO BY THE HONBLE MADRAS HIGH COURT IN VISWAS PROMOTERS PVT. LTD. (SUPRA) AND ARUN EXCELLO FOUNDATIONS (P) LTD. (SUPRA). IT MAY ALSO BE PERTINENT TO OBSERVE THAT THE HONBLE BOMBAY HIGH COURT IN M/S. VANDANA PROPERTIES (SUPRA) NOT ONLY N OTED THAT THE EXPRESSION HOUSING PROJECT IS NOT DEFINED U/S. 80IB(10) OF T HE ACT BUT ALSO NOTED THAT THE SAME WAS NOT DEFINED EVEN UNDER THE RELEVANT LOCAL REGULATIONS BEFORE IT, VIZ. THE MUMBAI MUNICIPAL CORPORATION ACT, 1988 AND THE DEVELOPMENT CONTROL REGULATIONS FOR GREATER MUMBAI, 1991. THUS, THE HO NBLE HIGH COURT PROCEEDED TO OBSERVE THAT THE EXPRESSION HOUSING P ROJECT IN SECTION 80IB(10) WOULD HAVE TO BE CONSTRUED AS COMMONLY UNDERSTOOD. EVEN IN THE CASE BEFORE US, THERE IS NO DISPUTE THAT THE EXPRESSION HOUSING PROJECT IS NOT DEFINED IN THE DEVELOPMENT CONTROL RULES FOR PCMC A ND THEREFORE, THE CONCEPT OF HOUSING PROJECT AS SOUGHT TO BE UNDERS TOOD BY THE ASSESSING ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 OFFICER BASED ON THE EXPLANATION OF CHIEF ENGINEER, PCMC IS NOT RELEVANT FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. THUS, THE ARGUMENT OF THE REVENUE TO THE EFFECT THAT SINCE SWRH AND S 3 PROJECTS HAVE BEEN APPROVED BY PCMC UNDER A COMMON APPROVAL, THE TWO PROJECTS S HOULD BE COMBINED AND CONSIDERED AS A SINGLE PROJECT FOR THE PURPOSE OF SECTION U/S. 80IB(10) OF THE ACT, IN OUR OPINION IS MISPLACED. 33. IN CONCLUSION, WE HOLD THAT SWRH PROJECT IS T O BE CONSIDERED AS AN INDEPENDENT HOUSING PROJECT FOR EVALUATING ASSESS EES CLAIM FOR DEDUCTION U/S. 80-IB(10) OF THE ACT. THE ONLY ASPECT NOW TO BE EXAMINED IS AS TO WHETHER ASSESSEE HAS COMPLETED CONSTRUCTION OF THE SAID PROJECT BEFORE 31.03.2008, AS REQUIRED BY SECTION 80-IB(10)(A)(I) OF THE ACT. 34. ON THE ABOVE ASPECT, THE CLAIM OF THE REVENUE I S THAT PRIOR TO 31.03.2008, ASSESSEE HAS OBTAINED COMPLETION CERTIF ICATE ONLY IN RESPECT OF 293 OUT OF 295 TOTAL ROW HOUSES AND THUS, IT HAS TO BE INFERRED THAT ASSESSEE HAS NOT FULFILLED THE CONDITION PRESCRIBED IN SECTI ON 80-IB(10)(A)(I) OF THE ACT. AS NOTED EARLIER OUT OF 295 ROW HOUSES THE COMPLETI ON CERTIFICATE IN RESPECT OF 293 ROW HOUSES WAS OBTAINED PRIOR TO 31.03.2008 BUT EVEN WITH REGARD TO THE REMAINING TWO ROW HOUSES THE APPLICATION FOR OBTAIN ING COMPLETION CERTIFICATE WAS MADE TO THE LOCAL AUTHORITY ON 26.03.2008. TH E ASSESSEE CLAIMED BEFORE THE LOWER AUTHORITIES THAT CONSTRUCTION OF THE REMA INING TWO ROW HOUSES WAS ALSO COMPLETE BEFORE 31.03.2008, A PLEA WHICH HAS NOT BEEN ACCEPTED. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT SUBSEQUENT TO THE IMPUGNED ORDER OF THE CIT(A), ON 28.06.2012 IN PURSUANCE TO THE APPLICATION OF THE ASSESSEE SUBMITTED ON 26.03.2008 , THE COMPLETION CERTIFICATE HAS BEEN ISSUED BY PCMC FOR THE REMAINI NG TWO ROW HOUSES ALSO, A COPY OF THE SAID CERTIFICATE IS PLACED AT PAGE 293 OF THE PAPER BOOK. THE AFORESAID CERTIFICATE PROVIDES THAT IT IS BEING ISS UED W.E.F. 26.03.2008. ON THIS BASIS, IT HAS BEEN VEHEMENTLY ARGUED THAT THE CONST RUCTION WAS COMPLETE EVEN ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 AT THE TIME OF SUBMISSION OF APPLICATION TO PCMC ON 26.03.2008, AND THE DELAY IN ISSUANCE OF COMPLETION CERTIFICATE BY PCMC COULD NOT BE ATTRIBUTED TO THE ASSESSEE INASMUCH AS NO OBJECTIONS WERE CONFRONTED TO THE ASSESSEE AT ANY STAGE. BE THAT AS IT MAY, WE FIND THAT THE SAID CER TIFICATE DATED 28.06.2012 WAS NOT BEFORE THE LOWER AUTHORITIES AND IS AN ADDITION AL PIECE OF EVIDENCE NOW SOUGHT TO BE RELIED BY THE ASSESSEE. WE DEEM IT FIT AND PROPER TO ADMIT SUCH EVIDENCE BECAUSE THE CERTIFICATE IS ISSUED BY A LO CAL AUTHORITY DULY CONSTITUTED IN LAW AND IT IS RELEVANT TO DECIDE THE ISSUE ON HA ND. MOREOVER, IT DOES NOT ENABLE THE ASSESSEE TO MAKE OUT A NEW CASE INASMUCH AS THE SAME HAS BEEN OBTAINED FROM PCMC IN RESPONSE TO AN APPLICATION MA DE OF AN EARLIER DATE, WHICH IS IN THE KNOWLEDGE OF THE AUTHORITIES BELOW, AND IS MERELY IN SUPPORT OF ASSESSEES ASSERTIONS MADE CONSISTENTLY BEFORE THE LOWER AUTHORITIES THAT THE CONSTRUCTION OF THE TWO ROW HOUSES WAS COMPLETE IN ALL RESPECTS BEFORE 31.03.2008 AND THAT IT HAD APPLIED FOR OBTAINING TH E COMPLETION CERTIFICATE IN TIME I.E. ON 26.03.2008. THUS, WE FIND THAT THE DE LAY IN ISSUING COMPLETION CERTIFICATE CANNOT BE ATTRIBUTED TO ASSESSEE SO AS TO DENY THE DEDUCTION CLAIMED U/S. 80IB(10) OF THE ACT ON THE BASIS THAT THE CONSTRUCTION WAS NOT COMPLETE BEFORE 31.03.2008, ESPECIALLY WHEN THERE I S NO OBJECTION RAISED BY PCMC REGARDING NON-COMPLETION OF CONSTRUCTION. 35. FACTUALLY SPEAKING THE TWO ROW HOUSES WERE COMP LETE AT THE TIME OF MAKING APPLICATION TO PCMC ON 26.03.2008 IS ALSO BO RNE OUT OF THE MATERIAL ON RECORD. AT PAGES 295 TO 298 OF THE PAPER BOOK I S PLACED COPIES OF THE PROPERTY TAX BILLS RAISED BY PCMC IN RELATION TO TH E TWO ROW HOUSES FOR THE FINANCIAL YEAR 2005-06. THE ASSESSEE ALSO CLARIFIED THAT POSSESSION OF THE TWO ROW HOUSES WAS HANDED OVER TO THE ACTUAL USERS OR C USTOMERS PRIOR TO 31.03.2008, A FACT WHICH IS NOT DISPUTED BY THE REV ENUE. THE ASSESSEE ALSO ASSERTED BEFORE THE LOWER AUTHORITIES THAT THE APPL ICATION DATED 26.03.2008 MADE TO BE PCMC FOR OBTAINING OF COMPLETION CERTIFI CATE WAS BASED ON A CERTIFICATE OF THE ARCHITECT CONFIRMING COMPLETION OF CONSTRUCTION OF THE BUILDING. ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 36. THE EXPLANATION (II) TO SECTION 80-IB(10)(A) OF THE ACT REQUIRES THAT THE DATE OF COMPLETION OF CONSTRUCTION OF A HOUSING PRO JECT SHALL BE TAKEN TO THE DATE ON WHICH THE COMPLETION CERTIFICATION IN RESPE CT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. ON THE BASIS OF THE AFORESAID, THE CLAIM OF THE REVENUE IS THAT AS ON 31.03.2008, THE PCMC HAD NOT ISSUED THE COMPLETION CERTIFICATE FOR THE TWO ROW HOUSES AND THEREFORE TH E ASSESSEE DID NOT COMPLY WITH THE STIPULATED PERIOD OF COMPLETION OF CONSTRU CTION. THE MOOT QUESTION IS AS TO WHETHER IN THE FACE OF THE AFORESAID FACT SIT UATION NOTED BY US, CAN IT BE SAID THAT ASSESSEES PROJECT DID NOT COMPLY WITH TH E CONDITION PRESCRIBED IN SECTION 80-IB(10)(A)(I) READ WITH EXPLANATION (II) THEREOF SO AS TO HOLD THAT THE CONSTRUCTION WAS NOT COMPLETE BEFORE 31.03.2008. IN A SOMEWHAT SIMILAR SITUATION, THE PUNE BENCH OF THE TRIBUNAL IN THE CA SE OF HINDUSTAN SAMUHA AWAS LTD. VS. ITO IN ITA NOS.945 TO 950/PN/2010 DAT ED 31.08.2011, ALLOWED THE CLAIM OF THE ASSESSEE CONSIDERING THAT (I) THE CERTIFICATE OF THE ARCHITECT CONFIRMING THAT THE CONSTRUCTION WAS COMPLETE; AND, (II) THE APPLICATION FOR OBTAINING COMPLETION CERTIFICATE WAS MOVED BEFORE T HE LOCAL AUTHORITY BEFORE THE SPECIFIED DATE. THE TRIBUNAL NOTED THAT DELAY I N ISSUING COMPLETION CERTIFICATE WAS NOT ATTRIBUTABLE TO THE ASSESSEE OR TO ANY NON-COMPLETION OF CONSTRUCTION. IN OUR VIEW, THE DECISION OF THE PUN E BENCH OF THE TRIBUNAL IN THE CASE OF HINDUSTAN SAMUHA AWAS LTD. (SUPRA) IS C LEARLY APPLICABLE IN THE PRESENT CASE INASMUCH AS THE ASSESSEE APPLIED FOR O BTAINING COMPLETION CERTIFICATE FOR THE TWO ROW HOUSES BEFORE 31.03.200 8 I.E. ON 26.03.2008 AND THE SAID APPLICATION WAS BASED ON A CERTIFICATE ISS UED BY THE ARCHITECT. FACTUALLY ALSO, THE FACTS ON RECORD, SUPPORTED BY T HE PROPERTY TAX BILLS, ARCHITECTS CERTIFICATE, OCCUPATION BY USERS, ETC. SUPPORT THE POSITION THAT PRIOR TO 31.03.2008 CONSTRUCTION OF THE TWO ROW HOUSES WA S COMPLETE. PERTINENTLY, THE COMPLETION CERTIFICATE OF PCMC REGARDING THE TW O ROW HOUSES IN QUESTION WHICH IS DATED 28.06.2012, CLEARLY STATES THAT IT I S ISSUED WITH EFFECT FROM ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 26.03.2008. THEREFORE, EVEN THE PCMC CERTIFICATION SUPPORTS THE POSITION THAT THE CONSTRUCTION WAS COMPLETE AS ON 26.03.2008 WHIC H, IN OUR VIEW, IS IN SUBSTANTIVE COMPLIANCE WITH THE REQUIREMENTS OF SEC TION 80-IB(10)(A)(I) READ WITH EXPLANATION (II) THEREOF. 37. NOW, IN SO FAR AS THE BALANCE OF 293 ROW HOUSES IS CONCERNED THERE IS NO DISPUTE THAT THE COMPLETION CERTIFICATE HAS BEEN ISSUED BY PCMC PRIOR TO 31.03.2008. THEREFORE, CONSIDERED IN RESPECT OF ENT IRE 295 UNITS COMPRISED IN SWRH PROJECT, THE DATE OF COMPLETION OF CONSTRUCT ION IS TO BE UNDERSTOOD AS ON OR BEFORE 31.03.2008 THEREBY COMPLYING WITH THE REQUIREMENT OF SECTION 80-IB(10)(A)(I) READ WITH EXPLANATION (II) THEREOF. 38. IN VIEW OF THE AFORESAID DISCUSSION, WE THEREFO RE HOLD THAT ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S. 80-IB(10) OF THE ACT OF RS.12,76,88,137/- WITH RESPECT TO THE PROFITS DERIVED FROM SWRH PROJECT FOR ASSESSMENT YEAR 2006-07. 39. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSES SMENT YEAR 2006-07 IS ALLOWED. 40. THE FACTS AND CIRCUMSTANCES STAND ON IDENTICAL FOOTING IN ASSESSMENT YEAR 2007-08, THEREFORE, OUR DECISION IN ASSESSMENT YEAR 2006-07 WOULD APPLY MUTATIS-MUTANDIS IN ASSESSMENT YEAR 2007-08 ALSO. 41. RESULTANTLY, BOTH THE CAPTIONED APPEALS OF THE ASSESSEE ARE ALLOWED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2013. SD/- SD- SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 31 ST OCTOBER, 2013 SUJEET/GCVSR ITA NOS. 1112 & 1527/PN/2011 A.Y. 2006-07 & 20 07-08 COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. //TRUE COPY// BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE