Income-tax Officer, V. Prathamesh Constructions, Pune

ITA 1498/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1772 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 25-07-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Assessee Lawyers: R G NAHAR
• Keywords: Reopening of assessment
• Section: 143(3); 148; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , . . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO S . 1 498 TO 1 500 /PN/20 1 4 / ASSESSMENT YEAR S : 20 0 5 - 0 6 , 2006 - 07 & 2008 - 09 THE INCOME TAX OFFICER, WARD 3(1), PUNE . / APPELLANT VS. PRATHAMESH CONSTRUCTIONS, SUCCESS CHAMBERS, 1232, APTE ROAD D G, PUNE 411004 . / RESPONDENT / APPELLANT BY : SHRI ANIL CHAWARE / RESPONDENT BY : SHRI R.G. NAHAR / DATE OF HEARING : 19 . 0 5 .201 6 / DATE OF PRONOUNCEMENT: 25 .0 5 .201 6 / ORDER PER SUSHMA CHOWLA, J M : TH IS BUNCH OF THREE APPEALS FILED BY THE REVENUE RELATING TO SAME ASSESSEE ARE AGAINST CONSOLIDATED ORDER OF CIT (A) - I I , PUNE , DATED 08 . 04 .20 1 4 RELATING TO DIFFERENT ASSESSMENT YEAR S 20 0 5 - 0 6, 2006 - 07 AND 2008 - 0 9 AGAINST RESPECTIVE ORDER S PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 2 2 . ALL THE APPEALS FILED BY THE REVENUE RELATING TO SAME ASSESSEE ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS C ONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, REFERENCE IS BEING MADE TO THE FACTS AND ISSUES IN ITA NO.1 498 /PN/2014 TO ADJUDICATE THE ISSUES. 3. THE REVENUE IN ITA NO.1 498 /PN/2014 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1) THE LEARNED COM MISSIONER OF INCOME - TAX (APPEALS) ERRED IN ALLOWING THE DEDUCTION U/S. 80 IB(10) OF THE ACT TO THE HOUSING PROJECT 'AMRUT KAILAS' APPROVED ON 31.03.2001 AND WHICH WAS STILL INCOMPLETE IN VIOLATION OF SECTION 80 IB(10)(A)(I) OF THE ACT WHICH REQUIRES SUCH PROJ ECT TO BE COMPLETED BEFORE 31.03.200 8 . 2) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN ALLOWING THE CLAIM U/S. 80 IB(10) OF THE ACT ON PARTIAL COMPLETION OF THE HOUSING PROJECT HOLDING THAT THAT THE ASSESSEE IS ENTITLED FOR CLAIM OF DEDUCTION U /S. 80 IB(10) IN RESPECT OF COMPLETED BUILDINGS WITHOUT APPRECIATING THE FACT THAT THE HOUSING PROJECT WAS APPROVED BY THE LOCAL AUTHORITY ON 31.03.2001 WHEREIN CONSTRUCTION OF BUILDINGS A B C D E G H I IN ENTIRETY WERE SANCTIONED AND COMPLETION CERTIFICATE WAS ADMITTEDLY NOT ENTIRETY WERE SANCTIONED AND COMPLETION CERTIFICATE WAS ADMITTEDLY NOT ISSUED BY PUNE MUNICIPAL CORPORATION WITH RESPECT TO BUILDING G. 3) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT IF THE CONDITIONS SET OUT IN SECTION 80 IB(10) ARE SATISFIED, THEN DEDUCTION IS ALLOWABLE ON THE ENTIRE PROJECT APPROVED BY THE LOCAL AUTHORITY AND THERE IS NO QUESTION OF ALLOWING DEDUCTION TO A PART OF THE PROJECT. 4) THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE PARKING SLAB OF BUILDI NG G AND THE BALANCE BUILDING G CANNOT BE SEPARATED AND MOREOVER THE ASSESSEE HAD PROPOSED BUILDING G IN THE FIRST PLAN APPROVED BY PMC ON 31.03.2001 AND, THEREFORE BUILDING G WAS PART & PARCEL OF THE HOUSING PROJECT CLAIMED U/S. 80 IB(10). 4. THE ISSUE RAI SED IN ALL THREE APPEALS IS AGAINST ALLOWANCE OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, WHICH WAS DENIED TO THE ASSESSEE ON THE PREMISE THAT THE ASSESSEE HAD PARTLY COMPLETED THE HOUSING PROJECT. ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 3 5. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT IDENTICAL ISSUE AROSE BEFORE THE TRIBUNAL IN ASSESSMENT YEAR 2009 - 10 AND THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE AND THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT WAS ALLOWED TO THE ASSESSEE. IT WAS FURTHER POINTED OUT BY HIM THAT THE YEARS UNDER APPEAL I.E. ASSESSMENT YEARS 2005 - 06, 2006 - 07 AND 2008 - 09 WERE REOPENED BY RECORDING REASONS FOR REOPENING THE ASSESSMENT UNDER SECTION 147 / 148 OF THE ACT AND THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE AC T WAS WITHDRAWN ON THE SAME GROUNDS AS IN ASSESSMENT YEAR 2009 - 10. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE PLACED RELIANCE ON THE ORDER OF ASSESSING OFFICER. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF PROMOTER, BUILDER AND DEVELOPER. THE ASSESSEE HAD DEVELOPED A HOUSING PROJECT NAMED AMRUT KAILAS AT PUNE. THE FIRST BUILDING PLAN FOR THE SAID PROJECT WAS SANCTIONED BY PUNE MUNICIPAL CORPORATION (PMC) VIDE CERTIFICATE DATED 31.03.2001. THE PROJECT ENVISAGED CONSTRUCTION OF SEVEN BUILDINGS I.E. A, B, C, D, E, H AND I CONSISTING OF 174 RESIDENTIAL UNITS AND 4 SHOPS AND PARKING SLAB OF BUILDING G . THE ASSESSEE COMPLETED THE AFORESAID HO USING PROJECT IN VARIOUS STAGES AND OBTAINED COMPLETION CERTIFICATE FROM TIME TO TIME BETWEEN 10.01.2005 TO 29.03.2008. THE CLAIM OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW WAS THAT IT HAD COMPLETED THE PROJECT ON 29.03.2008 I.E. THE DATE ON WHICH THE L AST COMPLETION CERTIFICATE WAS ISSUED BY THE PMC. THE ASSESSEE HAD THUS, COMPLETED THE CONSTRUCTION OF HOUSING PROJECT WITHIN STIPULATED ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 4 PERIOD PRESCRIBED UNDER SECTION 80IB(10)(A) OF THE ACT I.E. BEFORE 31.03.2008 . THE ASSESSING OFFICER WHILE COMPLETING PROCEEDINGS FOR ASSESSMENT YEAR 2009 - 10 NOTED THAT THE COMPLETION CERTIFICATE OF BUILDING G WAS RECEIVED ON 12.05.2011 AND HENCE, IT COULD NOT BE ACCEPTED THAT THE ENTIRE PROJECT WAS COMPLETE. SINCE THE SAID DATE OF COMPLETION OF BUILDING G WAS BEYOND TH E STIPULATED DATE I.E. 31.03.2008, THE ASSESSING OFFICER HELD THAT THE ASSESSEES PROJECT WAS NOT COMPLETE BEFORE THE STIPULATED DATE AS PROVIDED UNDER SECTION 80IB(10)(A) OF THE ACT AND HENCE, NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 8. THE TRIBUNAL AFTER NOTING VARIOUS FACTUAL ASPECTS OF THE CASE OBSERVED THAT INITIALLY, THE ASSESSEE HAD ENVISAGED THE CONSTRUCTION OF SEVEN BUILDINGS I.E. A, B, C, D, E, H AND I , CONSISTING OF 174 RESIDENTIAL UNITS AND 4 SHOPS AND PARKING SLAB OF BUILDING G, WHICH WAS COMPLETED BY 29.03.2008 . THE SECOND ASPECT NOTED BY THE TRIBUNAL WAS THAT THE ASSESSEE HAD PURCHASED CERTAIN TDR ON 19.04.2011 IN TERMS OF WHICH THE ASSESSEE COMPLETED THE CONSTRUCTION OF BUILDING H, WHICH COMPRISED OF 48 RE SIDENTIAL UNITS FOR WHICH BUILDING PLANS WERE SANCTIONED BY THE PMC ON 19.04.2011 . THE TRIBUNAL FURTHER HELD THAT WHERE THE CONSTRUCTION OF BUILDING G WAS POSSIBLE ONLY AFTER THE PURCHASE OF TDR ON 19.04.2011 , THEN THE SAME HAS TO BE VIEWED AS PROJECT IND EPENDENT OF EARLIER PROJECT WHICH STOOD COMPLETED BY ISSUANCE OF COMPLETION CERTIFICATE BY THE PMC ON 29.03.2008 . THE TRIBUNAL IN TURN, RELIED ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN CIT VS. VANDANA PROPERTIES (2012) 206 TAXMANN.COM 584 (BOM) AND HELD THAT BUILDING G WITH 48 RESIDENTIAL UNITS COULD NOT BE ENVISAGED BY THE ASSESSEE WHEN IT COMPLETED THE EARLIER PROJECT ON 29.03.2008 AND THE CONSTRUCTION OF THE SAID BUILDING G ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 5 WAS A PROJECT INDEPENDENT OF EARLIER PROJECTS AND HENCE, THE AS SESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WITH RESPECT TO EARLIER YEARS COULD NOT BE EXAMINED BY TAKING INTO CONSIDERATION THE CONSTRUCTION OF BUILDING G UNDERTAKEN VIDE BUILDING PLAN SANCTIONED ON 19.04.2011. HENCE, THE DEDUCTION CLA IMED BY THE ASSESSEE IN RESPECT OF PROFITS OF UNITS SOLD IN BUILDINGS A, B, C, D, E, H AND I WERE HELD TO BE ELIGIBLE FOR THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE RELEVANT FINDINGS OF THE TRIBUNAL ARE AS UNDER: - 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, IT IS TO BE NOTED THAT THE PROJECT FOR WHICH ASSESSEE HAS CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT COMPRISES OF 7 BUILDINGS A, B, C, D, E, H AND I CONSISTING OF 174 RESIDENTIAL UNITS AND 4 SHOPS AND PARKING SLAB OF BUILDING G. IN SO FAR AS THE SAID PROJECT IS CONCERNED, THERE IS NO DISPUTE THAT IT COMPLIES WITH THE PROVISIONS OF CLAUSE (A) OF SECTION 80IB(10) OF THE ACT INASMUCH AS THE COMPLETION OF CONSTRUCTION HAS TAKEN PLACE BEFORE 31.03.2008. OSTENSIBL Y, THE SAID PROJECT HAS BEEN ACCORDED COMPLETION CERTIFICATES ON VARIOUS DATES RANGING FROM 10.01.2005 TO 29.03.2008, AS PER DETAILS CULLED OUT BY THE CIT(A) IN PARA 3.4 OF HIS ORDER. 10. SUBSEQUENTLY, ASSESSEE PURCHASED CERTAIN TDRS ON 19.04.2011 IN TER MS OF WHICH THE ASSESSEE CONTEMPLATED CONSTRUCTION OF BUILDING G WITH TER MS OF WHICH THE ASSESSEE CONTEMPLATED CONSTRUCTION OF BUILDING G WITH GROUND PLUS 6 FLOORS COMPRISING OF 48 RESIDENTIAL UNITS. THE BUILDING PLAN SANCTION FOR THE AFORESAID CONSTRUCTION WAS OBTAINED BY THE ASSESSEE FROM PMC ON 19.04.2011 AND THE COMPLETI ON CERTIFICATE WAS OBTAINED ON 12.05.2011. THE ASSESSING OFFICER HAS SETUP A CASE THAT THE AFORESAID BUILDING G IS TO BE CONSTRUED AS A PART AND PARCEL OF THE EARLIER PROJECT AND THEREFORE THE CONDITION OF COMPLETION OF CONSTRUCTION PRESCRIBED IN CLAUSE (A) TO SECTION 80IB(10) OF THE ACT HAS TO BE EXAMINED ACCORDINGLY. 11. IN OUR CONSIDERED OPINION, THE PLEA SETUP BY THE ASSESSING OFFICER IS QUITE MISPLACED. FACTUALLY SPEAKING, WHEN ASSESSEE OBTAINED THE BUILDING PLAN SANCTION ON 31.03.2001, IT HAD N OT CONTEMPLATED CONSTRUCTION OF 48 RESIDENTIAL UNITS IN BUILDING G. WHEN ASSESSEE OBTAINED THE FINAL COMPLETION CERTIFICATE ON 29.03.2008 WITH RESPECT TO THE SEVEN BUILDINGS, NAMELY, A, B, C, D, E, H AND I CONSISTING OF 174 RESIDENTIAL UNITS AND 4 SHOPS AND PARKING SLAB OF BUILDING G, EVEN THEN CONSTRUCTION OF BUILDING G COMPRISING OF 48 RESIDENTIAL UNITS WAS NOT CONTEMPLATED. THE CONSTRUCTION OF BUILDING G WAS POSSIBLE TO BE CONTEMPLATED BY THE ASSESSEE ONLY AFTER THE PURCHASE OF TDRS ON 19.04.2011 AND THEREFORE THE SAME HAS TO BE VIEWED AS A PROJECT INDEPENDENT OF THE EARLIER PROJECT, WHICH STOOD COMPLETED BY THE ISSUANCE OF COMPLETION CERTIFICATE BY PMC ON 29.03.2008. FACTUALLY SPEAKING, THERE IS NO DISPUTE TO THE POSITION THAT THE TDRS FOR ENABL ING THE ASSESSEE TO UNDERTAKE CONSTRUCTION OF BUILDING G WAS NOT AVAILABLE UPTO 2011 AND THEREFORE ASSESSEE COULD NOT HAVE ENVISAGED THE CONSTRUCTION OF SAID BUILDING PRIOR TO 2011. THUS, ON THESE FACTS, IN OUR VIEW, THE CIT(A) MADE NO MISTAKE IN COMING TO THE FOLLOWING FINDINGS IN PARA 3.4 OF HIS ORDER, WHICH READ AS UNDER : - ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 6 3.4 I HAVE CAREFULLY CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND ALSO PERUSED THE MATERIAL ON RECORD. THE APPELLANT HAS UNDERTAKEN A HOUSING PROJECT 'AMRUT KALASH' SITUAT ED AT KARVENAGAR, PUNE WHICH IS ON TOTAL AREA OF THE PLOT OF 13,100 SQ MTRS., WHICH IS MORE THAN 1 ACRE. THE HOUSING PROJECT WAS FIRST SANCTIONED VIDE COMMENCEMENT CERTIFICATE DATED 31 - 03 - 2001 AND THE SAME HAS BEEN SUBJECTED TO REVISION FROM TIME TO TIME. THE SAID PROJECT COMPRISED OF 7 BUILDINGS VIZ. A,B,C,D,E,H & I WHICH CONSISTS OF 178 UNITS I.E.174 RESIDENTIAL UNITS AND 4 SHOPS AND PARKING SLAB OF BUILDING G. THE AREA OF ALL THE 174 RESIDENTIAL UNITS IS LESS THAN 1500 SQ.FT. AND THOSE OF SHOPS IS 919.29 SQ.FT. THE AFORESAID PROJECT SANCTIONED EARLIER HAS BEEN COMPLETED VIDE COMPLETION/ OCCUPANCY CERTIFICATE DATED 29 - 03 - 2008 THOUGH THE COMPLETION/OCCUPANCY CERTIFICATES HAVE BEEN OBTAINED FROM TIME TO TIME AS PER THE COMPLETION OF THE UNITS OF THE PROJECT AS UNDER: SR NO COMPLETION CERTIFICATE NUMBER DATE BUILDING RESIDENTIAL UNITS SHOPS 1. 0004796 10/01/2005 H 48 0 2. 000562 11/10/2005 A 24 0 B 24 0 3. 01073 29/03/2008 C 18 0 D 18 0 E 18 0 I 24 4 TOTAL 174 4 THUS THE 174 RESIDENTIAL UNITS AND 4 SHOPS AS CONTEMPLATED AS PER THE THUS THE 174 RESIDENTIAL UNITS AND 4 SHOPS AS CONTEMPLATED AS PER THE SANCTIONED PLAN HAS BEEN COMPLETED PRIOR TO 31 - 03 - 2008, THE STIPULATED DATE AS PER SECTION 80IB(10). THE AFORESAID FACT ALSO GETS CONFIRMED FROM THE REPORT DATED 12 - 12 - 2011 SUBMITTED BY THE VALUE R, SHRI. NITIN LELE. HOWEVER, FOR THE BUILDING G THE VALUER'S REPORT ALSO MENTIONS THAT IN THE FIRST LAYOUT DATED 31 - 3 - 2001 THE SAME IS SANCTIONED AS ONLY PARKING AND IN NEXT REVISION DATED 28 - 3 - 2008 THE SAME HAS BEEN SHOWN FOR BUILDING G I.E. PARKING ONLY . THUS THE CONTENTION RAISED BY THE APPELLANT THAT BUILDING G WAS NEVER CONTEMPLATED AS A RESIDENTIAL PROJECT UPTO 31 - 3 - 2008 IS PRIMA FACIE TRUE. HOWEVER, SUBSEQUENTLY THE APPELLANT CONSTRUCTED THE G BUILDING WITH GROUND PLUS 6 FLOORS WITH 48 FLATS OR UNIT S AND THE VALUER IN ITS REPORT HAS ALSO NOTED THAT THE APPELLANT HAS TAKEN SEPARATE COMMENCEMENT AND OCCUPANCY CERTIFICATE FOR THE G BUILDING AND THAT THE SAID BUILDING IS CONSTRUED FROM THE TDR PURCHASED AND THE SAME IS NOT PART OF THE EXEMPTION CLAIM U/S 80IB(10). THE BASIC OBJECTION OF THE ASSESSING OFFICER IS WITH RESPECT TO THE NON COMPLETION OF THE PARKING OF THE G BUILDING PRIOR TO 31 - 3 - 2008. I.E. THE STIPULATED DATE OF COMPLETION AS PER SEC 80IB(10). THE ASSESSING OFFICER HOWEVER, HAS ACKNOWLEDGED T HE FACT THAT THE COMPLETION/OCCUPANCY CERTIFICATE OF THE BUILDING G WAS OBTAINED ONLY ON 12 - 05 - 2011 AND HENCE HAS HELD THAT THE HOUSING PROJECT WAS NOT COMPLETED WITHIN THE TIME ENVISAGED AS PER PROVISION OF SEC 80IB(10) AS THE SAID BUILDING BEING PART OF THE HOUSING PROJECT. THE ORIGINAL PLAN WHICH GOT SANCTIONED IN 2001 HAD CONTEMPLATED BUILDING 'G' TO BE 'PARKING' AND THE REVISED PLAN DATED 28 - 3 - 2008 ALSO SHOWED BUILDING G TO BE PARKING ONLY IS UNDISPUTED AS THE SAME ALSO GETS CONFIRMED BY THE RE PORT OF THE VALUER. THUS THE APPELLANT UPTO 31 - 03 - 2008 HAD NOT CONTEMPLATED ANY ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 7 RESIDENTIAL UNITS IN THE SAID BUILDING 'G' UPTO THAT DATE I.E. 31 .03.2008. IT WAS ONLY SUBSEQUENTLY THAT THE APPELLANT GOT THE PLAN APPROVED AFTER THE PURCHASE OF TDR ON 19 - 04 - 2011 WHEREBY THE SAID BUILDING 'G' WHICH CONTEMPLATED PARKING ONLY WAS REVISED AND THE SAME WAS APPROVED AS A BUILDING WITH GROUND PLUS 6 FLOORS COMPRISING OF 48 RESIDENTIAL UNITS. IN ANY CASE THE APPELLANT HAS NOT CLAIMED ANY DEDUCTION U/S 80IB(10) ON TH E SAID BUILDING. THE QUESTION WHICH ARISES IS WHETHER THE HOUSING PROJECT SHOULD BE CONSIDERED TO BE COMPLETE WITHOUT THE PARKING OF BUILDING G AS APPROVED BY THE LOCAL AUTHORITY. IT IS UNDISPUTED FACT THAT THE ENTIRE PROJECT EXCLUDING BUILDING 'G' HAS BEE N COMPLETED WITHIN THE STIPULATED PERIOD AND THE COMPLETION / OCCUPANCY CERTIFICATE ALSO RECEIVED WITHIN THE TIME LIMIT PRESCRIBED AS PER SECTION 80IB(10). THE VERY FACT THAT TDR FOR BUILDING 'G' WAS NOT AVAILABLE UPON 2011 AND HENCE THE APPELLANT COULD NO T HAVE CONSTRUCTED THE SAID BUILDING. THUS, THE ONLY DISPUTE IS THAT BUILDING G WHICH WAS ALLOTTED FOR PARKING WAS NOT COMPLETED AT RELEVANT POINT OF TIME HOWEVER, FOR THE REMAINING PART OF THE PROJECT ALL THE CONDITIONS STIPULATED AS PER SECTION 80IB(10) HAS BEEN FULFILLED AND HENCE IN VIEW OF THE SEVERAL DECISIONS OF THE TRIBUNALS AND BOMBAY HIGH COURT THE APPELLANT IS ENTITLED FOR CLAIM OF DEDUCTION U/S 80IB(10) IN RESPECT OF THE COMPLETED BUILDINGS. 12. IT IS ALSO EVIDENT THAT THE DECISION RENDERED B Y THE CIT(A) IS IN CONSONANCE WITH THE JUDGEMENT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA). THE HONBLE HIGH COURT HAS EXPLAINED THAT THE EXPRESSION HOUSING PROJECT IS NEITHER DEFINED UNDER THE ACT AND NOR IT HAS BEEN DE FINED UNDER THE BOMBAY MUNICIPAL CORPORATION ACT, 1988 AS ALSO UNDER THE DEVELOPMENT CONTROL REGULATIONS FOR GREATER MUMBAI, 1991. OSTENSIBLY, THE HONBLE HIGH COURT WAS CONSIDERING A PROJECT, WHICH WAS UNDER THE DOMAIN OF THE BOMBAY MUNICIPAL CORPORATION ACT, 1988. IN THE UNDER THE DOMAIN OF THE BOMBAY MUNICIPAL CORPORATION ACT, 1988. IN THE PRESENT CASE, THE RELEVANT LOCAL AUTHORITY IS PUNE MUNICIPAL CORPORATION BUT IT IS ALSO EVIDENT THAT UNDER THE DEVELOPMENT CONTROL RULES OF PUNE MUNICIPAL CORPORATION, THE EXPRESSION HOUSING PROJECT HAS NOT BEEN DEFINED. THEREFORE, THE OBSERVATIONS OF THE HONBLE HIGH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA) APPLY PARI - MATERIA IN THE PRESENT CASE ALSO. IN THIS BACKGROUND, THE HONBLE HIGH COURT EXPLAINED THAT THE EXPRESSION HOUSING PROJECT APPEARING IN SECTION 80IB(10) OF THE ACT HAS TO BE CONSTRUED AND UNDERSTOOD AS IT IS UNDERSTOOD IN COMMON PARLANCE. AS PER THE HONBLE HIGH COURT, THE CONSTRUCTION OF EVEN ONE BUILDING WITH SEVERAL RESIDENTIAL UNITS COULD ALSO CONSTITUTE A HOUSING PROJECT U/S 80IB(10) OF THE ACT. IN THE CASE BEFORE THE HONBLE HIGH COURT, IT WAS NOTICED THAT WHEN THE PLAN FOR A, B, C AND D BUILDINGS WERE APPROVED DURING THE PERIOD 1993 TO 1996, CONSTRUCTION OF E BUILDING WAS NOT EVEN CONTEMPLATED ON THE PLOT OF LAND IN QUESTION. IT WAS ONLY IN THE Y EAR 2001 WHEN THE STATUS OF THE LAND WAS CONVERTED FROM SURPLUS VACANT LAND INTO WITHIN THE CEILING LIMIT LAND BY THE STATE GOVERNMENT, AN ADDITIONAL BUILDING COULD BE CONSTRUCTED ON THE PLOT IN QUESTION AND ACCORDINGLY BUILDING PLAN FOR CONSTRUCTION OF E BUILDING WAS APPROVED BY THE LOCAL AUTHORITY ON 11.10.2002. IN THIS MANNER, THE HONBLE HIGH COURT HELD THAT THE PROJECT TO UNDERTAKE CONSTRUCTION OF BUILDING E COULD NOT BE SAID TO BE AN EXTENSION OF THE EARLIER HOUSING PROJECT. NOTABLY, ASSESSEE HA D CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO CONSTRUCTION OF E BUILDING WHICH WAS DENIED BY THE ASSESSING OFFICER ON THE GROUND THAT IT WAS AN EXTENSION OF THE EARLIER HOUSING PROJECT, WHICH WAS COMPLETED PRIOR TO 01.10.1998 WHEREAS CONSTRU CTION OF BUILDING E WAS APPROVED FOR THE FIRST TIME ON 11.10.2002. THE HONBLE HIGH COURT UPHELD THE STAND OF THE ASSESSEE THAT CONSTRUCTION OF E BUILDING CONSTITUTED AN INDEPENDENT HOUSING PROJECT AND THEREFORE THE DATE ON WHICH THE EARLIER HOUSING P ROJECT HAD COMMENCED ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 8 CONSTRUCTION COULD NOT BE APPLIED TO THE HOUSING PROJECT CONSISTING OF E BUILDING. THE AFORESAID REASONING SET OUT BY THE HONBLE HIGH COURT FULLY APPLIES IN THE PRESENT CASE TOO. IN THE PRESENT CASE, BUILDING G WITH 48 RESIDENTI AL UNITS COULD NOT BE ENVISAGED BY THE ASSESSEE WHEN IT COMPLETED THE EARLIER PROJECT ON 29.03.2008. SUBSEQUENTLY, IN 2011 ASSESSEE OBTAINED TDRS AND IT IS ONLY THEN THE APPROVAL FOR CONSTRUCTION OF BUILDING G WITH 48 RESIDENTIAL UNITS WAS OBTAINED ON 1 9.04.2011. THE CONSTRUCTION OF G BUILDING IS A PROJECT INDEPENDENT OF THE EARLIER PROJECT, AND ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT WITH RESPECT TO THE EARLIER PROJECT CANNOT BE EXAMINED BY TAKING INTO CONSIDERATION THE CONSTRUCTION OF G BUILDING UNDERTAKEN VIDE BUILDING PLAN SANCTION DATED 19.04.2011. 13. IN VIEW OF THE AFORESAID DISCUSSION, WE HEREBY AFFIRM THE ORDER OF THE CIT(A) AND ACCORDINGLY REVENUE FAILS. 9. THE ASSESSMENT PROCEEDINGS FOR THE YEARS UNDER APPEAL WERE REOPENE D AND THE ASSESSMENT WAS COMPLETED VIDE ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT. IN THE RE - ASSESSMENT ORDER PASSED , THE ASSESSING OFFICER WITHDREW DEDUCTION ALLOWED TO THE ASSESSEE UNDER SECTION 80IB(10) OF THE ACT PERTAINING TO THE PROJEC T AMRUT KAILAS AND ADDED BACK THE SAME TO THE TOTAL INCOME. THE REOPENING OF ASSESSMENT WAS PURSUANT TO COMPLETION OF ASSESSMENT IN ASSESSMENT YEAR 2009 - 10 . THE CIT(A) ALLOWED COMPLETION OF ASSESSMENT IN ASSESSMENT YEAR 2009 - 10 . THE CIT(A) ALLOWED THE CLAIM OF ASSESSEE IN TURN RELIED ON HIS ORDER FOR ASSESSMENT YEAR 2009 - 1 0. 10. WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPEAL BEFORE US IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN ASSESSMENT YEAR 2009 - 10 AND FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF BUILDINGS A, B, C, D, E, H AND I , SINCE THE CONSTRUCTION OF BUILDING G WAS ENVISAGED ON RECEIPT OF TDR ON 19.04.2011 AND WAS NOT CONTEMPLATED IN THE EARLIER BUILDING PLANS SANCTIONED ON 31.03.2001 , FOR WHICH LAST COMPLETION CERTIFICATE WAS ISSUED ON 29.03.2008. CONSEQUENTLY, THE ASSESSEE IS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WHERE THE PROJECT WAS COMPLETED WITHIN ITA NO S . 1 498 TO 1 500 /PN/20 1 4 PRATHAMESH CONSTRUCTIONS 9 SPECIFIED DATE AS PRESCRIBED UNDER CLAUSE (A) TO SECTION 80IB(10) OF THE ACT. THE GROUNDS OF APPEAL RAISED BY THE REVENUE ARE THUS, DISMISSED. 11 . THE FACTS AND ISSUES IN ITA NOS.1 499 /PN/2014 & 1 500 /PN/2014 ARE IDENTICAL TO THE FACTS AND ISSUES IN ITA NO.1 498 /PN/2014 AND OUR DECISION IN ITA NO.1 498 /PN/2014 SHALL APPLY MU TATIS MUTANDIS TO ITA NOS.1 499 /PN/2014 & 1 500 /PN/2014 . 12 . IN THE RESULT, ALL THE APPEALS OF REVENUE ARE DISMISSED. ORDER P RONOUNCED ON THIS THE 25 TH DAY OF MAY , 201 6 . SD/ - SD/ - ( R.K. PANDA ) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 25 TH MAY , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I I , PUNE ; 4. / THE CIT - II, PUNE ; 5. , , / DR A , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE