Income-tax Officer, V. Manas Developers, Bhusawal

ITA 1543/PUN/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6747 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR CHAWARE
• Keywords: Retrospective amendment
• Section: 143(3); 80IB; 69; 15; 12

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , ! ' , $ % BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.1543/PUN/2014 ' ' / ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD 2(1), JALGAON, OLD B.J. MARKET, JALGAON, PIN 425001. . / APPELLANT V/S MANAS DEVELOPERS, C/O. COLOR STOP, KHADKA ROAD, BHUSAWAL 425201. PAN : AAMFM1444J . / RESPONDENT / APPELLANT BY : SHRI ANIL KUMAR CHAWARE. / RESPONDENT BY : NONE (WRITTEN SUBMISSIONS) ( / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 2, NASHIK DT.23.05.2014 FOR THE ASSESSMENT YEAR 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- 2.1 ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS OF DEVELOPING LANDS, CONSTRUCTION AND HOUSES. / DATE OF HEARING : 08.03.2017 / DATE OF PRONOUNCEMENT: 30.03.2017 2 ITA NO.1543/PUN/2014 AY.NO.2010-11 ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2010-11 ON 30.09.2010 DECLARING TOTAL INCOME AT RS.NIL AFTER CLAIMING DEDUCTION OF RS.33,48,612/- U/S 80IB(10) OF THE ACT. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.08.03.2013 AND THE TOT AL INCOME WAS DETERMINED AT RS.33,48,610/- INTER-ALIA BY DISALLOWING THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. AGGRIEVED BY THE ORDER OF AO, THE MATTER WAS CARRIED BE FORE THE LD. CIT(A), WHO VIDE ORDER DT.23.05.2014 (IN APPEAL NO.NSK/CIT(A)-2/83/13-14) ALLOWED THE APPEAL OF THE ASSESS EE. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APP EAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING T HE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 80IB(1 0) OF THE INCOME TAX ACT 1961(HEREINAFTER REFERRED AS 'AC T') OF RS 33 , 48,612/- TO THE ASSESSEE? 2. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING T HE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 80IB(1 0) OF THE ACT TO THE ASSESSEE IGNORING THE FACT THAT THE ASSESSEE HAD CONSTRUCTED THE RESIDENTIAL UNIT IN EX CESS OF 1500 SQ.FT. IN VIOLATION TO THE PROVISIONS OF SE CTION 80IB(10) OF THE ACT? 3. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING T HE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 80IB(1 0) OF THE ACT TO THE ASSESSEE BY RELYING UPON THE ITAT BE NCH 'A ' PUNE'S ORDER DT.30.9.2013 IN ASSESSEE'S OWN CASE FO R AY 2007-08 & 2008-09, WHEN THE SECTION 80IB(10) (F)OF THE ACT CLEARLY PROHIBITS THE ASSESSEE TO SELL MORE THAN ONE RESIDENTIAL UNIT TO THE BUYER, HIS/HER SPOUSE, HIS/HER MINOR CHILDREN OF THE BUYER IN CASE THE BUYER IS AN INDIVIDUAL? 4. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING T HE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 80IB(1 0) OF THE ACT TO THE ASSESSEE, IGNORING THE FACT THAT DEV IATION 3 ITA NO.1543/PUN/2014 AY.NO.2010-11 OR VIOLATION OF EVEN A SINGLE CLAUSE OF SUB-SECTION (10) OF SECTION 80IB, CALLED FOR DISALLOWANCE OF CLAIM U/S 80IB(10) AS IT IS GIVEN FOR THE ENTIRE PROJECT? 5. IN THE FACTS & CIRCUMSTANCES OF THE CASE & LAW, WHETHER THE LD. CIT(A) HAD ERRED IN ALLOWING THE DEDUCTION U/S 80IB(10) WITHOUT APPRECIATING THE FOLLOWING FACTS OF THE CASE: I) THAT THE LAND ON WHICH THE SAID PROJECT WAS CLAIMED TO HAVE BEEN DEVELOPED WAS IN THE NAME OF THE INDIVIDUAL PARTNERS WHOM CAN NEVER MEAN TO 'INDUSTRIAL UNDERTAKING OR UNDERTAKING' WITHIN THE MEANING OF SECTION 80IB. II) THAT THE PROJECT AS A WHOLE HAD NOT BEEN APPROVED BY THE LOCA L AUTHORITY. THE SEPARATE APPROVALS OBTAINED FOR CONSTRUCTION OF RESIDENTIAL UNIT ON EACH PLOT WAS AGAINST THE SCHEME OF SECTION 80IB(10) AND CIRCULAR NO 05/2005 DATED 15.07.2005 AND THEY WERE NOT 'BUILDING PLAN' AS PER THE SAID CIRCULAR. III) THAT THE COMPLETION CERTIFICATE FROM LOCAL AUTHORITY WAS NOT OBTAINED FOR THE ENTIRE 'BUILDING' BUT FOR INDIVIDUAL UNIT SEPARATELY . 6. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE, T HE ORDER OF THE CIT(A) BE VACATED AND THAT OF THE A.O. BE RESTORED. 3. BEFORE US, AT THE OUTSET, LD. D.R. SUBMITTED THAT THOUGH THE REVENUE HAS RAISED VARIOUS GROUNDS BUT THE SOLE C ONTROVERSY TO BE DECIDED IS WITH RESPECT TO ALLOWING THE CLAIM OF DED UCTION U/S 80IB(10) OF THE ACT. 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICED THAT ASSESSEE HAD SHOWN SALE OF BUNGALOW IN ITS PROJECT NAMED SUNDER NAGAR AND THE PROFIT EARNED FROM THE SALE OF RS.33,48,612/- WAS CLAIMED AS DEDUCTION U/S 80IB(10) OF TH E ACT. AO NOTICED THAT THE LAND ON WHICH THE PROJECT WAS CONSTRUCTED WAS PURCHASED BY SHRI NARESHKUMAR KANHIY ALAL 4 ITA NO.1543/PUN/2014 AY.NO.2010-11 AND SHRI HUSNODDIN SHAMSODDIN IN THEIR INDIVIDUAL CAPACITY. IT WAS SUBMITTED THAT THE LAND WAS CONTRIBUTED BY THE AFOR ESAID TWO PERSONS AS THEIR CAPITAL IN THE FIRM. AO NOTED THAT IN THE CAPITAL ACCOUNT OF THE AFORESAID TWO PERSONS, THERE WAS N O ENTRY OF CAPITAL CONTRIBUTION. HE THEREFORE CONCLUDED THAT THE LAND DID NOT BELONG TO THE FIRM BUT IT BELONGED TO THE TWO PERSON S IN THEIR INDIVIDUAL CAPACITY. HE ALSO NOTICED THAT THE COMMENCEMENT AND COMPLETION CERTIFICATE WAS OBTAINED IN RESPECT OF EACH UNIT AS AND WHEN IT WAS SOLD AND WAS NOT FOR THE WHOLE PROJE CT. ACCORDING TO AO, THE DEDUCTION U/S 80IB(10) OF THE ACT W AS ALLOWED TO A HOUSING PROJECT AND NOT TO A RESIDENTIAL UNIT . HE ALSO NOTICED THAT THE INDIVIDUAL PLANS INVOLVING CONSTRUCTION OF SMALL BUNGALOW WERE BEING SEPARATELY TAKEN FROM LOCAL AUTHORITIES AND ASSESSEE DID NOT HAVE ANY APPROVED PRO JECT BY NAME SUNDER NAGAR AND THE INDIVIDUAL PROJECTS / BUNGALOW WERE HAVING AREA LESS THAN ONE ACRE. HE WAS THEREFORE OF TH E VIEW THAT ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE AC T AND ACCORDINGLY DENIED THE CLAIM OF DEDUCTION. AGGRIEVED BY TH E ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A ), WHO HELD AS UNDER : 6.1 . I HA VE CA R E FULL Y G ON E THROU G H TH E S UBMISS I ON OF T H E APP E LL A NT A ND TH E M A T ERI AL ON R E CORD . T HOU G H TH E LAND IS IN TH E NAM E OF PARTNER S , TH EY HA VE C ONTRIBUT E D TH E S AM E A S TH E IR C APITAL CONTRIBUT I ON TO TH E FIRM AND ' TH E R E A F T E R, ALL THE EXP E NSES FOR DEV E LOPMENT OF LAND HAVE B EE N IN C URRED BY TH E F IRM . F URTH E R, TH E SAL E R E CEIPTS FROM R E SID E NTI A L UNIT S HA V E A L S O BE E N C R E DIT E D B Y T H E F I R M. IN ORD E R TO CL A IM D E DUCTION U / S 80-IB (L0 ) , TH E ASSE SS EE N EE D S NOT B E TH E O W N E R OF TH E LAND . WHIL E G OIN G THROU G H THE R E L EV ANT SE CTION, IT C AN B E S E EN THAT NOWHERE IT IS M E NTION E D THAT THE UND E RTAKIN G IN ORD E R TO C LAIM D E DUCTION U / S 80 - IB(10) SHOULD BE THE OWNER OF THE LAND . THE SAID I S SU E S P EC IFICALL Y R E LATING TO DEDUCTION U / S 80-IB(10) HAS ALREADY BEEN DECIDED IN NUMB E R OF C ASES INCLUDING THE FOLLOWING: - 5 ITA NO.1543/PUN/2014 AY.NO.2010-11 I] RADHE DEVELOPERS VS. ITO [2008]113 TTJ (AHD) 300. T HE SAID DECISION OF THE HON'BLE IT AT HAS BEEN UPHELD BY THE HON'BLE GUJARAT HIGH COURT. [2012] 204 TAXMANN 543 GUJ] II] ITO VS. SHAKTI CORPORATION [2009] 32 SOT 438 [ AHD ] III] KZK DEVELOPERS VS. ITO [2010 ]130 TTJ [CTK] [UO] 57 . IV] AMALTAS ASSOCIATES VS. ITO [2011] 142 TTJ(AHD) 849. V] ACIT VS. BOMBAY REAL ESTATE DEV. CO. (P)LTD[2011] 6 4DTR [MUM]137 VI] COMMISSIONER OF INCOME TAX VS. CEEBROS PROPERTY DEVELOPMENT PVT LTD [2012] 83 CCH 098 CHENNAI HC FURTH E R, S EC TION 45 ( 3 ) OF TH E INCOM E T A X A CT, 19 6 1 C L E ARL Y STATES THE LAW R E LATIN G TO TRANSF E R OF C APITAL A S SET TO TH E FIRM B Y ITS PARTN E RS AS TH E IR CAPITAL C ONTRIBUTION . A LSO U /S 2 ( 47 ) OF TH E IN C OM E TA X A CT, 1961, TH E TRANSF E R INCLUD ES PO SSE S S ION OF IMMO V ABL E PROP E RT Y G I VE N W ITHOUT R E GISTRATION OF C ON VEY AN CE D EE D; AND AL S O TRANSACTIONS IN AGRE E MENTS TO BU Y OR SE LL AN Y IMMO V ABL E PROP E RT Y OR AN Y RIGHTS THER E ON . TH E AO HAS NOT CONSIDER E D THI S IMPORTANT ASP EC T. TH E JUDI C IAL DEC IS ION S C IT E D B Y TH E APP E LLANT AR E APPLI C ABL E TO HI S CA S E AND TH E R EF OR E TH E APP E LLANT FIRM IS E LIGIBL E FOR D E DU C TION ON THI S G ROUND. 7. T H A T TH E HOU S ING PROJ E CT A S A W HOL E HAS NOT BEEN APPRO VE D B Y TH E L O CAL A U TH O RI T Y : - I ) T H E APP E LLANT FIRM HA S SUBMITTED TH A T TH E HOU S IN G PROJ E CT HA S B EE N BUILT ON A S U RVEY NUMB E R 110 /2A + 2 B+ 2 C +111/3/ 1 AND HAS B E EN N A M E D AS SUNDAR NAG AR A T BHU SAWA L . T H E W HOL E LA Y OUT A S ON E S INGL E LA Y OUT PLOT HAS B EE N APPRO VE D B Y TH E LO CA L AUTHORIT Y, I . E . BHU S A WA L M UNICIPAL C OUNCIL W HI C H FURTH ER A S A W HOL E HA S B EE N APPRO VE D B Y THE HON. C OLL EC TOR, J A L G AON AS A R E SID E NT IA L PRO JECT . TH E TOTAL AR EA UND E R TH E LA Y OUT I S 25300 S Q MTR S . W HI C H EXCEE D 1 ACRE A ND A F T E R R E DUCIN G L A ND UND E R RO A D S AND GA RD E N , T H E N E T AR E A C OM E S 1 6365.64 S Q M TR S . AF T E R GE TTIN G APPRO V AL , ONL Y TH E F URTH E R D EVE LOPM E NT H AS C OMM E N CE D A ND TH E R EF OR E, IT I S ON E LA Y OUT AND HA S B EE N APPROV E D AS A WHOL E HOUSIN G PR O J ECT . T H E APPLI CA TION FOR TH E A PPR OVA L OF BUILDIN G P E RMISSION ADM EAS URIN G TO T A L 10327 . 66 S Q MTR S W ITH TOT A L BUILT UP A R EA 5 8 94 . 69 SQ MTR S W A S FI RS T MAD E O N 12 / 0 9 / 2 00 6 AND TH E F IR S T A PPRO V AL WAS R ECE I VE D ON 0 9/ 10 /2 006 FOR A TOTAL 8 4 ROW HOU SES . TH E R EA FT E R, TH E SE C OND A PPRO VA L W A S R ECE I VE D DAT E D 29/ 11 /2 00 6 FOR 14 R O W HOU SES , 18 FLAT S A ND 8 S HOP S TOTALL Y ADM E A S URIN G 1 2 1 . 34 SQ M [APPRO X 13 0 6 S Q FT W HI C H I S F A R L ESS T HAN 2 000 S Q FT A LLO WE D U /S 80 - IB (10) ] . TH E D E T A IL S OF ALL BU I LDIN G S AN C TION E D PL A N S GR ANT E D B Y BHU S A WA L MUNI C IPAL C OUN C IL ARE DI SC U SSE D IN A C HART S UBM I TT E D B Y TH E A PP E LLANT . T HU S , TH ERE I S NO FOR CE IN TH E OB SE R V ATION M A D E B Y TH E A O . TH A T TH E P ER MI SS ION H AS B EE N T A K E N AS A ND W H E N R E QUI RE D . P HOTO CO P IES O F A LL TH E A BO VE M E NTION E D A PP R O VE D BUILDIN G 6 ITA NO.1543/PUN/2014 AY.NO.2010-11 P ER MI SS ION PL A N S WERE S UB M IT TE D T O TH E AO ' S A ND WE R E O N TH E R EC ORD O F TH E A O. A T TH E TIM E O F ASSESSME NT . (II ) T H E A PP E LL A NT R E LI E D ON TH E EX PL A N AT ION [ I] TO SEC TION 8 0 - IB (10) C LAU SE ' A AND S TAT E D TH A T TH E R ES TR ICT ION I S CAS T O N TH E DAT E OF C OMPL E T I ON W ITH R EGA RD S TO TH E F IR S T APPRO VA L . T H E D EVE LOPM E NT C H A R GES FOR T H E E NTIR E L A ND W A S PAID IN ON E TIM E . TH E W HOL E PROJ ECT I S ONL Y ON E HOU S I NG P R OJ EC T AND HAS B EE N NAM E D AS S UNDAR N A GA R A ND I S ON TH E SUR VEY N UMB E R W H IC H H AVE B EE N W HOLL Y NU M B E R E D AS 11 0 / 2A+2B + 2C + 1 11 /3/1 A ND TH E S AID LAND I S A BO VE 1 AC R E. TH E R E I S NO A MBI G UIT Y M E NTION E D EVE N B Y TH E A . O THAT TH E HO US IN G PROJ EC T I S NOT ON A L A ND EXCEE DIN G 1 AC R E . WE H AVE PRO V ID E D ON E C OMM O N E NTRAN CE GA T E , GA RD E N A R EA , E T C. TO ALL TH E R ES ID E NT O F TH E PRO JEC T. T H E W HOL E R ES ID E NTI A L PROJ EC T H AS B EE N A PP ROVE D AN D I M PL EME NT E D AS A C ON CE PT O F G ROUP HOU S IN G A ND I S O N E H O U SI N G P ROJEC T O N L Y. ( I I I ) T H E H ON . I TAT NAGP UR BENC H IN TH E CASE O F IN C OM E T AX OF FI CE R VS . A I R DEVE LOP E R S ( 2 00 9 ) 123 TT J ( NAG) 959, TH E A PPRO VA L WAS T A K E N F ROM N I T ( NAG PUR IMPRO VE M E NT TR U S T) M ORE T H A N ON CE IN FAC T WAS TAK E N ON 6 D IFF E R E NT O CCAS ION S. IT CA NNOT B E S AID TH AT T H E ASSESSEE D EVE L O P E D 6 DIFF E R E NT HOU S IN G PROJ EC T S. IN V I EW OF TOT A LIT Y OF A BO VE FAC T S , TH E ASSESSEE D EVE LOP E D ON E HOU S IN G PROJ ECT W HI C H W A S O N TH E A R EA EXCEE DIN G 1 AC R E. I V ) T H E HON . IT A T A HMADAB A D ' A B E NCH IN C A SE OF R A DH E D EVE LOP E R S VS . IN C OM E TAX O FFI CE R S A ND O RS . [ 2008 ] 11 3 TTJ ( A HD) 3 00 , H E LD TH A T W H ERE IN THE ASSESSEE FIRM HAD OBTAINED APPROVALS FROM LOCAL AUTHORITY [VADODARA MUNICIPAL CORPORATION] MORE THAN ONCE IN DIFFERENT FINANCIAL YEAR, STILL T HE BENEFIT OF DEDUCTION U/S 80-IB (10) WAS ALLOWED TO THE FIRM. V) THE HON. ITAT MUMBAI A BENCH IN CASE OF SAROJ SALES ORGANIZATION VS. INCOME TAX OFFICERS [2008] 115 TTI (MUMBAI) 485 , HELD THAT WHEREIN THE ASSESSEE FIRM HAD ALSO OBTA INED BUILDING PERMISSION OF ITS VARIOUS WINGS ON VARIOUS DATES AND STILL THE BENEFIT U/S 80-IB (10) WAS GRANTED TO THE FIRM. VI) THE APPELLANT FURTHER STATED THAT THE BUILDING PERMISSIONS ARE TO BE TAKEN IN ACCORDANCE WITH THE LOCAL LAWS AND T HE REGULATIONS IN FORCE AND IN THE INSTANT CASE, THE BUILDING PERM ISSIONS HAVE BEEN TAKEN AS PER GUIDELINES APPLICABLE TO CLASS-A MUNICIPAL COUNCIL. THE APPELLANT ALSO CITED CIRCULAR NO 5 OF 2005 DATED 15/07/2005 ISSUED BY CBDT. THE CBDT IN A CIRCULAR NO 5 DATED 15/07/2005 IN EXPLANATORY NOTES RELATING TO DIRECT TAXES RELATING TO GUIDELINES HAVE ISSUED AS FOLLOWS: EXTENSION OF THE TIME-LIMIT FOR OBTAINING APPROVAL OF HOUSING PROJECTS FOR THE PURPOSE OF TAX HOLIDAY U/S 80 IB (10) AND ALLOWING DEDUCTION FOR RE-DEVELOPMENT OR RECONSTRUCTION OF EXISTING BUILDING IN SLUM AREAS HA VE STATED THAT THIS SECTION DOES NOT SPECIFICALLY PROV IDE AREA LIMIT FOR THE GARDEN, THE DEVELOPMENT PLAN ROADS, IN TERNAL MEANS OF ACCESS ETC IN THE HOUSING PROJECT. THEREF ORE, THE 7 ITA NO.1543/PUN/2014 AY.NO.2010-11 SAME SHOULD CONFORM TO THE PROJECT PLAN APPROVED BY THE LOCAL AUTHORITY IN ACCORDANCE WITH THE REGULATIONS IN FORCE. ALSO, THE AREA LIMIT OF THE PLOT HAS TO BE CONSTRUED WITH REFERENCE TO THE AREA OF THE SITE ON WHICH THE HOUS ING PROJECT IS CONSTRUCTED AND NOT WITH REFERENCE TO TH E DEMARCATION OF LAND DONE BY THE LAND DEVELOPMENT AUTHORITY THUS, THROUGH THIS CIRCULAR, THE CBDT HAS ALREADY I SSUED CLARIFICATION STATING THAT THE AREA OF THE PLOT FOR 1 ACRE SHOULD BE CALCULATED CONSIDERING THE WHOLE SITE AND NOT THE D EMARCATED LAND AS PER LAND DEVELOPMENT AUTHORITY [TOWN PLANNI NG, DEPARTMENT IN OUR CASE]. THE ABOVE CIRCULAR HAS BE EN REFERRED BY HON. ITAT, PUNE BENCH WHICH IS A JURISDICTIONAL TRIBUNAL IN BUNTY BUILDERS VS. INCOME TAX OFFICER, WARD 2[2], P UNE REPORTED IN [2010] 127 ITD 286 [PUN E ] AND ITS DECISION AR E BINDING ON THE A . O. THE CIRCULARS ISSUED B Y TH E CBO T AR E ALSO BINDING ON ALL THE A . OS. V II) IN SREEVATSA REAL ESTATES (P) LTD VS. INCOME TA X OFFICER REPORTED IN (2010) 41 DTR (CHENNAI) (TRIB) 497 , THE HON IT A T CHENNAI D B E NCH, HAS HELD THAT THE SANCTION OBTAINED FOR INDI V IDUAL PLOTS FORMING PART OF TH E W HOL E LA Y OUT SHOULD B E CONSID E RED AS ONLY A PART OF WHOLE AND THUS DEDUCTION U/S 80- IB (10) WAS ALLOWED TO THE FIRM. V III) IN THE COMMISSIONER OF INCOME TAX VS. M/S VANDANA PROPERTIES ITA NO 3633 OF 2009 WITH ITA NO 4361 OF 2010 DATED 28/03/2012 IN THIS CAS E , THE HON'BLE BOMBAY HIGH COURT HAS HELD THAT TH E E XPR E SSION 'HOUSING PROJECT' IN COMMON PARLANC E WOULD MEAN CONSTRUCTING A BUILDIN G OR GROUP OF BUILDINGS CONSISTING OF S EVE RAL RESID E NTIAL UNIT . IN FACT TH E E XPLANATION IN SECTION 80 IB [10] SUPPORTS TH E CONTENTION OF TH E ASSESSE E THAT THE APPROVAL GRANTED TO A BUILDING PLAN CONSTITUTES APPROVAL G RANT E D TO A HOUSING PROJECT . IT FURTH E R H E LD THAT IN ABSENCE OF D E FINING THE E XPR E SSION 'HOUSING PROJECT' AND IN TH E ABSENC E OF SPECIFYING TH E SIZ E OR THE NUMB E R OF HOUSIN G PROJECTS REQUIR E D TO B E CONSTRUCTED ON A PLOT O F LAND HA V ING MINIMUM AR E A OF ONE ACR E , E VE N ON E HOUSING PROJ E CT CONTAINING MULTIPL E R E SID E NTIAL UNITS OF A SIZE NOT EXCEEDING 1000 S QUAR E F E ET CON S TRUCTED ON A PLOT OF LAND HA V ING MINIMUM AR E A OF ON E A C R E W OULD B E ELI G IBL E FOR SECTION 80 - IB [10] D E DUCTION. IF TH E CONSTRUCTION OF SE CTION 80IB (10) PUT FORTH B Y TH E R E V E NU E IS ACCEPT E D, IT WOULD MEAN THAT IF ON A VA CANT PLOT O F LAND, ONE HOU S ING PROJ EC T FULFILLING ALL CONDITIONS I S UND E RTAK E N, THEN D E DUCTION WOULD BE AVAILABLE TO THAT HOUSING PROJ E CT A ND IF THER E AFTER S EVE RAL OTH E R HOUSING PROJ E CTS ARE UND E RTAK E N ON TH E VE R Y SAM E PLOT OF LAND, TH E D E DUCTION W OULD NOT BE A V AILABLE TO THOS E HOUSIN G PROJ EC TS AS THE PLOT CEAS E S TO BE A VACANT PLOT AFTER THE C ONSTRUCTION OF THE F IR S T HOU S IN G PROJ E CT . SU C H A CON S TRU C TION IF ACC E PTED W OULD DEF E AT TH E OBJ EC T W ITH W HICH S E CTION 80IB(10) WAS E NACT E D . 8 ITA NO.1543/PUN/2014 AY.NO.2010-11 TH E H ON'BL E BOMBA Y HIGH COURT FURTHER H E LD THAT 'TH E REFOR E , IT I S CL E AR THAT ON A PLOT OF LAND HAVING MINIMUM AREA OF O N E ACR E , TH E RE C AN BE ANY NUMB E R OF HOU S ING PROJ E CT S AND SO LONG AS THOS E HOU S ING PROJECTS AR E APPROV E D B Y TH E LO C AL AUTHORIT Y AND FULFILL TH E C ONDITIONS S E T OUT UNDER S E CTION 80 - IB ( 1 0), TH E D E DUCTION TH E R E UND E R CANNOT BE D E NI E D TO ALL THO S E HOU S ING PROJ EC T S . SE CTION 80IB (10) WHIL E S P E CIF Y ING THE S I Z E OF TH E PLOT OF LAND, DO ES NOT S PECIF Y TH E S I ZE OR TH E NUMBER OF HOU S IN G PROJ E CT S THAT AR E R E QUIR E D TO B E UND E RT A K E N ON A PLOT HA V IN G MINIMUM A R E A OF ON E A C R E '. 7.1 I HA VE CAR EF ULL Y C ONSIDER E D TH E C IR C ULAR N O 5 OF 2 00 5 DAT E D 1 5/ 0 7/2 00 5 ISSU E D B Y C BDT WHI C H HA VE AL S O EX PR ES S E D TH E S AM E V I E W S TH A T' TH E HOUSING PROJ EC T SHOULD C ON F ORM T O TH E PROJ EC T PLAN APPRO VE D B Y TH E LO CA L A UTHORIT Y IN A CC ORDAN CE W ITH TH E R EG ULATION S IN FORC E . A L S O TH E A R EA LIMIT OF TH E PLOT H AS TO B E C ON S TRU E D W I T H R E F E R E N CE TO TH E AR E A OF TH E S IT E ON W HI C H TH E HOU S IN G P R OJ EC T I S C ON S TRU E D A ND NOT W ITH R E F E R E N CE TO TH E D E MAR CA TION OF L A ND DON E B Y TH E LAND D EVE LOPM E NT AUTHORIT Y .' M OR E O VE R, TH E APP E LLANT H AS AL S O S UBMITT E D A C OP Y OF R E L EV ANT S E CTION 5 OF S TANDARDI ZE D BUILDING B YE LAWS A ND D EVE LOPM E NT C ONTROL RUL ES FO R ' A ' C L ASS MUNI C IPAL C OUN C IL S O F MA HARA S HTR A W H E R E IN IT S TAT ES TH A T ' N O P E R S ON S HALL C ARR Y OUT AN Y D EVE LOPM E NT W ORK IN C LUDIN G D EVE LOPM E NT OF LAND B Y LA Y IN G OUT I NT O S UITABL E PLOTS OR D EVE LOPM E NT OF A N Y L A ND ......... . . . . .. . .. . . . . .. W ITHOUT F IRST OBTAININ G A S EPAR A T E BUILDING PERMIT AND C OMM E N CE M E NT CE RTIFI CA T E FOR EAC H S U C H BUILDING FROM TH E AUTHORIT Y ' . T HI S C L E ARL Y S UPPORT S TH E APP E LL A NT F IRM' S C LAIM AS TH EY CA NNOT O VE RRID E TH E LO CA L L AWS A ND HA S T O BUILD TH E PROJ EC T A S P E R RUL ES LAID DO W N B Y TH E B HU SAWA L, M UNI C IP A L CO UN C IL [LO C AL A UTHORIT Y ] W HICH B E IN G AN A CL ASS MU N I C IP A L CO UN C IL WH I C H I S BOUND T O F OLLO W TH E S TATUT E. IT I S FURTH E R SEE N FRO M TH E CO RR ES POND E N CE MAD E B E T WEE N TH E A PP E LL A NT AND TH E BHU SAW AL M UNI C IP A L CO RPOR A TION THAT TH E L AY OU T AS A W HOL E H AS B EE N APPRO VE D B Y TH E LO C AL A UTHORIT Y . T H E CASE L AWS C IT E D B Y TH E A PP E LLANT A R E A L S O S QUAR E L Y A PPLI C ABL E T O HI S CASE. I, TH E R E FOR E , HOLD TH AT THOU G H TH E P E RMI SS ION FOR E ACH UNIT HA S B EE N T A K E N SE P A R ATE L Y , TH E A PP E LL A NT F IRM H AS T A K E N TH E SA M E IN ACC ORD A N CE W ITH TH E B YE- L AWS W HI C H ARE BINDIN G ON TH E A P PE LL A NT A ND C IR C ULAR N O 5 OF C BDT DAT E D 1 5/ 0 7/2 00 5 A LSO UPHOLDS TH E APP E LL AN T' S CASE AND I, TH E R E FO RE, ALLO W THI S G ROUND O F APP E AL A ND TR EA T TH E PROJ E CT A S B E IN G D EVE LOP E D A S ON E HOU S IN G PROJ EC T . 8. THAT ON E OF THE HOUSING UNIT SOLD IS IN EXC E SS OF BUILT UP AR E A 1 5 00 SQ FT A S PR E S C RIB E D UNDER S E CTION 80 - IB (10). [IN CAS E OF RAJKUMAR P A R WA NI AND SMT M EE NA PAR W ANI R / O BHU S AWAL] TH E APP E LLANT FIRM STATED THAT THEY WOULD LIK E TO KE E P A FACT ON RE C ORD THAT SHRI RAJKUMAR PARWANI AND HI S W I FE HAD PURCHAS E D 2 S E PARAT E BLOCK S EAC H A DM E A S URING BUILT UP A R E A B E LO W 1 5 00 S Q FT. THE PHOTOCOPI E S OF 2 S AL E D EE D S WE R E SUBMITT E D TO THE A O. TH E Y AR E 2 SEPARAT E BLO C KS AND TH E IR P E RMI S SION S W E R E ALSO T A K E N SE PARAT E LY. TH E S E FACTS WERE STATED TO TH E A .O. IN THIS C ONN E CTION, IF THE A. O. W ANT E D TO CONFIRM W H E TH E R IT W AS 1 9 ITA NO.1543/PUN/2014 AY.NO.2010-11 UNIT OR 2 UNIT S , A R E PORT FROM BHU S A W AL MUNICIPAL COUNCIL C OULD HAV E TAK E N W H E R E THE A O. HAD ALR EA D Y D E PUT E D HI S INSP E CTOR TO ENQUIR E VA RIOU S OTH E R THIN GS OF TH E PROJ E CT . IN FAC T, A R E QU E ST C OULD HA VE B EE N MAD E TO US TO OBT A IN A CE RTI F IC A T E FROM L O CA L A UTHORIT Y THAT T H E BU I LDIN G W ORK HAD BE E N DON E / CA RRIED A CCORDIN G TO TH E P E RMISSION ISSU E D. T HI S WOULD HAV E S ER V ED TH E PURPOS E OF THE A O., W H E RE AS A W RONG AND MI S LE A DING STAT E MENT H A D B E EN TAK E N FROM M R . P A R W AN I B Y TH E A .O.' S PR E DE CE S S OR JU S T TO D E N Y TH E RIGHTFUL B E N E FIT OF D E DU C TION U /S 80 - IB (10) TO TH E FIRM. TH E A PP E LL A N T E NCLOS E D PHOTOCOP Y OF A C E RTIFI C AT E FROM BHUSA W AL MUNI C IPAL C OUN C IL STATING THAT 'TH E BUILDING P E RMISSION HA S A LR E ADY BE E N G R A NT E D FOR TH E PLOT S IN TH E W HOL E L AY OUT A ND TH E BUILDIN G W ORK HA S B EE N DON E / C ARRI E D IN ACC O R DAN CE WI TH TH E BUILDIN G PERMI S SION A S G R A NT E D B Y BHUSA WA L M UNI C IPAL C OUN C IL' . T HUS, IT I S NOW C L EA R TH A T TH E FIRM BUILT 2 UNIT S WHICH L A T E R ON H AVE B EE N C ON VE RT E D B Y TH E BU YE R TO 1 TO SUIT HIS N EE D S . F URTH ER, TH E APP E LL A NT STAT E D THAT IT HAD SOLD 2 AD J AC E NT UNIT S TO MR . RAJKUM A R PAR W AN I AND I T HAD S UBMITT E D TH E FOLLO W ING DOCUM E NTS TO TH E AO. IN S UPPORT O F I TS C ONT E NTIO N TH A T TH E FIRM BUILT 2 UNIT S : - A] BUILDIN G P E RMIS S ION F ROM LOC A L A UTHORIT Y FOR BOTH UNITS OBTAIN E D SE PARAT E L Y . B ] AG R EE MENT TO SA LE D A T E D 08 / 03 / 2 0 07 EXEC UT E D S E P A R A T E L Y F OR BO T H TH E UNIT S . A T TH E TIM E OF E XEC UTIN G TH E A G R EE M E NT TO S AL E BOTH TH E UNIT S W ER E C OMPLET E IN A LL R E SP ECT A ND THE S A M E I S AL S O M E NTION E D IN THE A GR E E M E NT TO S AL E ITS E LF . C] S A L E D E ED DAT E D 24/ 0 7 / 200 7 OF BOTH TH E UNIT S EXEC UTED SE PARAT E L Y F OR BOTH TH E UNIT S. D] S T ATE M ENT R ECO RD E D OF M R BADRIPRA S AD C HOURA S I YA B Y TH E I T O FFI C I A L S A T TH E T IM E OF A SSESS M E NT PROC EE DIN GS OF AY 2 008 - 09 , W HO A L S O H A D PUR C H ASED 2 UN I T S AND H AVE S T A T E D THAT H E HAS PU RC H ASE D 2 SE P A RA TE UNI TS F R O M TH E F IRM. E ] CER TI F I C AT E F R O M LOCA L A UTHORIT Y D A T E D 1 7 . 01 . 2 0 11 W H E R E IN I T H AS CE RTI F I E D T H A T T H E O W N E R S HA VE CA RRI E D TH E W ORK IN A CC O R D ANCE W ITH TH E BUILDIN G P E RM ISS ION AS G R A NT E D B Y B HU S A WA L MUNI C IP A L C OUN C IL . F ] C E R T I F I CA T E F RO M C ON S ULTIN G C I V IL E N G IN EE R S HR I DEE P A K GA J A R E S T A TIN G TH AT A B O UT TH E F OUND A TION W O R K A ND S TRU C TUR A L D ES I G N IS F OR 2 UNIT S. G ] M UNI C IP A L TAX R ECE IPT I SS U E D IN T H E NAM E O F MR RAJUM A R PA R WA NI & S MT MEE N A PA R WA NI FOR 2 UNIT S M E NTIONIN G 2 SE P A R A T E HOU S E N O . H] R CC D ES I G N PL A N S FOR TH E 2 HOU SES T H E APP E LLANT F URTH ER S T A T ES THAT TH E RES ID EN TI A L UN ITS O F M R . P ARWA NI H AS 2 P ORC H ES W H IC H A L S O F U R TH E R JU S T I FI ES OUR S T A ND TH A T TH E F I R M BUILT 2 UNIT S. Y OUR HONOUR NO W H E R E WE W ILL FIND 2 POR C H ES O R W ILL BUILT 2 POR C H ES IN S U C H T Y P E OF RES ID E N T I A L UNIT S . T HU S , TH E F I R M H AS PROV E D B EY OND DOUBT TH A T I T H AS BUILT 2 SE P A R A T E UNIT S A ND W HI C H L A T E R O N H AVE B EE N M E R GE D INTO 1 UNIT B Y M R R A JKUM A R PAR WA NI B Y M A KIN G CE RT A IN MINOR AM E NDM E NT S . W H E R EAS, T H E AO . ONL Y H AS T H E S T A T E M EN T O F MR PARWA N I IN 10 ITA NO.1543/PUN/2014 AY.NO.2010-11 S UPPORT BUT DO ES NOT H AVE A N Y DO C UM E NT A R Y EV ID E N CE TO S UPPORT TH AT T H E FIRM S OLD M E R GED 1 UNIT ONL Y TO M R PA R WA NI . IN THI S C A SE TH E S T A T EME N T OF MR PAR WA NI WAS T A K E N AF T E R 1 8 MONTH S F R OM TH E H A NDIN G O VE R OF PO SSESS ION W HI C H C ANNOT B E ACCE PT E D UND E R A N Y C I RC UM S T ANCES . T H E A O' S PR E D ECESS OR H I MS E L F H AS NOT A CCE PT E D MR R A JKUM AR PARWANI ' S ST A TE M E NT IN FULL B EC AU S E M R R A JKUM A R PA R WA NI THROU G HOU T HI S S T A T EMEN T HAS A L S O S TAT E D THAT H E HA S PUR C H ASE D TH E 2 UNI TS FR OM M AN AS D E VE LOP E RS ON L Y BUT T H E AO .' S PR E D E C ESS OR DID NOT CO N S ID ER TH ES E FA C T S A ND M A D E TH E SA ID P O IN T AS HI S F IR S T G ROUND O F DI SA LLO WA N CE TH A T TH E PROP E RT Y I S NOT IN TH E N A M E OF TH E F I RM . T HU S , TH E A O . HIM SE LF DI S B E LI EVES TH E S TAT E M E NT OF MR . R A JKUM A R PA R WA NI H I M SE L F A L SO H AS N O T B EE N A BL E T O SUB S T A NTI A T E HI S S T A ND TH A T H E PUR C H AS E D 1 UNIT A ND A L S O TH A T A LL TH E A M EN DM E N TS W E RE CA RRI E D B Y TH E F IR M . IN COMMISSIONER OF INCOME TAX (CENTRAL), PUNE VS. M / S A NKIT E NTERPRISES ITA (LOD) NO 1795 OF 2012, THE HON ' BLE BOMBAY HIGH COURT WAS FACED WITH THE FOLLOWING QUES TION OF LAW IN QUESTION ( II ) ' W H E TH ER O N TH E F AC T S AND IN TH E C IR C UM S T A N CES OF TH E CASE A ND IN L AW , T H E T RIBUN A L WA S C O R R EC T I N HOLD I N G T H A T EV E N T W O AD JOININ G F L ATS J OI N E D T O CO N ST ITU T E A S IN G L E R E S ID E NTIAL UN I T C A N N OT B E TR E AT E D A S ON E UNIT IF A DJOI N IN G FLATS WE R E AP PR O VE D B Y LO C A L A U T H OR IT Y AS SE PARAT E UN I T ? ' THE HON'BLE BOMBAY HIGH COURT HELD THAT 'SO FAR AS QUESTION ( II ) IS CONCERNED, IN THE IMPUGNED ORDER THE TRIBUNAL HAS RECORDED A FINDING OF FACT THAT T W O ADJOINING FLATS W E RE APPROVED BY THE LOCAL AUTHORIT Y AS SEPARAT E UNITS AND COMPLETION C E RTIFICATE ISSUED ON THAT BASIS. THEREFORE, ON THE ABOVE FINDING OF FACT, THE TRIBUN AL HELD THAT THE TWO FLATS CANNOT B E TREATED AS ONE UNI T TO COMPUTE TH E BUILT UP AREA FOR THE PU R POS E S OF SECTION 80- IB (10) OF THE INCOME TA X A CT , 1961 . THE DECISION OF THE TRIBUNAL BEING BASED ON FINDING OF FACT, WE SEE NO REASON TO ENTERTAIN QU E STION(II). I N FACT , IN T H E FO LL OW I N G CA SE S P RO - RA T A D E DU C T I ONS OR F ULL D E DU C TION H A S B EE N A LL O WE D W H E R E TH E BUILT U P AR E A E XC EE D E D T H E S P EC IF I E D AR E A U / S 80 - IB (10) I ) G V C OR P ORAT ION VS . IN COME TAX OFF I C E R [ 2 010] 1 3 3 TTJ ( M U M B A I ) L 78. II ) S R EE VA T SA R E A L ES TA T E S [P ] L TD V S . IN C OM E T A X O FF I CE R [ 2 0 10 ] 41 DT R ( C H E NNA I) (TRIB) 49 7 III ) S JR B UILD E R S VS. ASS T. C OMM I SSION E R OF IN C OM E T A X [20 10] 3 I TR 5 69 [ BA N G] I V) A S ST C O M M I SS ION E R O F I N C OM E T A X VS. S H E T H D EVE L O P E R S (P ) L T D ( 2 00 9 ) 33 SOT 2 77 ( M U M B A I ) . V) AS ST C I T V S. B E N G AL A MBU J A H O U S IN G D E V E L OP M E NT L TD [ 200 7 ] 3 9 - D , B C A J 5 46 V I ) E M G E E N HOLDIN GS P V T L T D VS . D C T T , R A N G E 9 ( L ) , M UM BAI TA N O 332 / M UM / 20 1 0 ORD E R DT 11 . 05.2 0 1 1 V II ) T H E I N C OM E T AX O F F I CE R V S . M / S RAG H V E NDRA C O N ST RU C TION I TA N O 7 L 5 / BA N G / 2 010 O RD E R DT 0 7 . 0 1 . 2 011 11 ITA NO.1543/PUN/2014 AY.NO.2010-11 V I I I ) M/S N A M A H ES T ATES VS . I TO . IT A NO.2 9 / H Y D / 2 010 O R D E R DT 0 9 . 04 . 2 0 1 0 I X) S A N G H V I & DO S H I E NT E RPR I SES VS . I T O. ( 2 011) 1 4 1 TT J (C H E N NA I ) ( T M) 1 X) H A WA R E C ON S TRU C TIO N S (P) L T D V S . ITO . ( 2 011) 6 4 DTR ( M UMB A I ) (T R I B ) 2 5 1 X I ) D C I T VS. BRI G AD E E N T E RPRIS ES ( P ) LTD [ 2008] 11 9 TT J ( BAN G) 26 9 I N V I EW O F T H E A B O V E S U BM I SS ION IT I S RE Q U ES T E D TO A LLO W TH E D E DU C T I O N U / S 80 - IB (1 0) A N D O BLI G E O N T HI S G R O U N D .' 8.1 I HAVE GONE THROUGH THE WRITTEN SUBMISSION AND MATERIAL ON RECORD. DURING THE APPELLATE PROCEEDINGS IN ORDER TO VERIFY THE BUILT UP AR E A ABOUT THE ADJAC E NT ROW HOUSES, MY PREDECESSOR HAD ASKED TH E APPELLANT TO PRODUCE SALE DEEDS OF ADJACENT RESIDENTIAL UNITS N E AR MR . PARWANI & BUILDIN G PERMISSION OF ALL THE UNITS ISSUED BY TH E LOCAL A UTHORIT Y . IT IS OBS E RV E D THAT NO BUILDING PERMISSION IS IN E XCESS OF 1 5 00 SQ FT AS PRESCRIB E D U / S 80 - IB 10) . B E SIDES THIS APP E LLANT FIRM HAS V OLUNTARIL Y SUBMITTED A C E RTIFICATE FROM C HIEF OFFIC E R, BHUSAWAL MUNICIPAL C OUNCIL DAT E D 17/01 /2 011 WHICH STATES THAT THE 'BUILDIN G P E RMISSION HAS ALR E AD Y B EE N GRANTED FOR TH E PLOTS IN WHOL E LAYOUT AND TH E BUILDING WORK HAS B EE N DON E/ CARRI E D IN A C CORDANCE WITH THE BUILDING PERMISSION AS G RANTED BY BHUSAWAL MUNICIPAL COUNCIL . ' FURTH E R, TH E APPELLANT HAS S UBMITTED ON E MOR E CERTIFICAT E FROM BHUSAWAL MUNICIPAL COUN C IL DAT E D 0 7/ 0 2/ 2011 WHICH IN ITS ANN E XURE ENCLOSED AL S O S UMMARIZ E S TH E BUILT UP AR E A OF E ACH BUILDING C OMPL E TED AND IN THIS ALSO NONE OF THE RE SID E NTIAL UNIT IS HA V IN G BUILT UP AR E A E XCEEDING 1 5 00 SQFT, THE APPELLANT HA S PRODU CE D AD E QUATE MAT E RIAL IN SUPPORT OF HIS CONT E NTION THAT NO UNIT WAS MOR E THAN 1 5 00 SQ FT . A P E RUSAL OF R E CORD RE V EALS THAT TH E A O ALSO G OT THE INSP EC TION DON E OF TH E RESID E NTIAL UNIT OF SHRI PARWANI . TH E A . R. OF TH E A PP E LLANT HAS ALSO DIS C USS E D TH E JURISDICTIONAL BOMBAY HI G H COURT JUDG E MENT IN TH E C A SE OF C OMMISSION E R OF INCOME TAX (C E NTRAL), PUN E V S. M / S A NKIT E NT E RPRIS ES IT A (LO D ) NO 1 79 5 OF 2 01 2 , IN WHI C H TH E HON'BL E BOMBAY HIGH C OURT H E LD THAT 'TH E TRIBUNAL HAS RECORDED A FINDING OF FACT THAT TWO ADJOINING FLAT S W E R E APPRO VE D BY TH E LOCAL AUTHORITY AS S E PARAT E UNIT S AND COMPL E TION CE RTIFICAT E I SS U E D ON THAT BASIS. THEREFORE, ON TH E ABOV E FINDING OF FACT, TH E T RIBUNAL H E LD THAT THE TWO FLATS CANNOT BE TR E AT E D AS ON E UNIT TO C OMPUT E TH E BUILT UP AR E A FOR TH E PURPOSES OF SECTION 80 - IB (10) OF TH E IN C OM E TA X AC T, 1 96 1. TH E D EC ISION OF THE TRIBUNAL B E ING BAS E D ON FINDIN G IF FA C T, W E S EE NO R E A S ON TO E NTERTAIN QU E STION (II).' HOW E V ER , TH E A . O . I S OF TH E OPINION THAT THE SAID UNIT IS ON E SINGL E UNIT AND E XC EE D S TH E PR ESC RIB E D LIMIT OF 1 5 00 SQFT. TH E S TAT E M E NT OF MR PARWANI THOU G H UND E R DI S PUT E G O ES A GA INST TH E C ONT E NTION OF TH E A PP E LLANT . HO WE V E R, EV ID E N CES PRODU CE D B Y TH E APP E LL A NT CANNOT B E BRUSHED ASIDE . IT HA S COM E TO TH E NOTIC E THAT M R . PARWANI HA S L E T OUT TH E E NTIR E BUILDIN G TO ON E PS U AND PROBABL Y UND E RTOOK TH E ALT E RATION OF TH E BUILDING TO TH E R E QUIR E M E NT OF TH E T E NANT. T H E ISSU E TH E R E FOR E , REMAINS DISPUT E D. HOWE VE R, I AM OF THE CONSIDERED V IE W , ESP E CIALLY UND E R THE CIRCUMSTANCES OF THE CASE, THAT DEDUCTION U /S 80 - IB(10) S HOULD NOT HA VE BEEN DISALLOWED IN FULL ON THIS ISSU E ALONE . A T BE S T, 12 ITA NO.1543/PUN/2014 AY.NO.2010-11 D E DUCTION U / S 80-I B(10 ) COULD B E DISALLOWED ON PRO RATA BASI S AS HELD B Y V ARIOUS D E CISION GIV E N BY TH E APPELLANT. IN VI E W OF THE FACTS AND CIR C UMSTANCES MENTIONED A BOV E , I AM OF TH E C ONSID E RED OPINION THAT TH E APP E LLANT W OULD BE E NTITLED FOR DEDU C TION U / S 80 - IB(10) BUT FO R THE AMOUNT IN V OL VE D IN TRANSACTION S W ITH PARWANIS WITH R E SPECT TO PLOT NO 8. (8 A & 8B). THE A . O. IS TO B E DIRECT E D TO REDU CE TH E AMOUNT CLAIM E D B Y THE APPELLANT ON PLOT NO. 8 FROM TH E TOTAL C ONSID E RATION ON W HICH TH E APP E LLANT HAS CLAIMED DEDU C TION U / S 80 - IB (10 ) IN TH E YE AR UNDER C ONSID E RATION . THUS, TH E APP E LLANT WILL NOT B E DENIED D E DUCTION U /S 80 - IB(10) ON THE WHOL E AMOUNT ON THIS GROUND ALON E . NOW, TH E IT A T HA S D EC ID E D TH E IS S U E OF DI S ALLO W AN CE ON PRO RAT A BA S I S IN TH E APP E LLANT ' S O W N CAS E FOR A . YR S . 2 00 7- 08 A ND 2 008 - 0 9 IN FA V OUR OF TH E APP E LLANT. A S M E NTION E D IN PARA NO. 1 2 OF THIS ORDER, THE CL A IM OF TH E APP E LLANT I S ALLOWED FOLLOWING TH E TRIBUNAL' S IMPU G NED ORD E R DATED 3 0 TH S E PT E MB E R, 2 01 3. 9. TH A T TH E COMPLETION CERTIFICAT E HAS ALSO B EE N OBTAIN E D FOR EACH UNIT A ND NOT FOR THE W HOL E PROJ E CT . T H A T A S T H E BUILDIN G P E RMIS S ION HA S B EE N OBT A IN E D FOR E ACH RO W HOU SE SEP A RATEL Y , IT I S NOT POSSIBL E FOR TH E LO C AL A UTHORITY TO ISSU E ON E COMPL E TION C E RTIFICAT E FOR THE WHOLE PROJECT. A S THE BUILDIN G PERMISSION WA S TAK E N FO R E ACH R O W HOUS E S AM E W A Y COMPL E TION C E RTIFICAT E HA S ALSO BE E N TA KE N FO R TH E SA ID SU C H RO W HOU SE. T H E C ONDITION TO OB TA IN C OMPL E TION CE RTIFI C ATE I S 4 YE ARS FROM THE D A TE O F S AN CT ION A ND W HI C H H AS NO W B EE N INCR E AS E D TO 5 YE AR S AND H E NC E IN THI S C A SE TH E TIME LIMIT TO OBTAIN C OMPL E TION CE RTI F I CA T E I S 3 1 / 0 3/ 1 2 A ND TH E APP E LLANT FIRM HAD ALR EA D Y OBTAIN E D COMPLETION C E RTIFICAT E FOR THE UNITS W ITHIN TIM E . H E N CE , IT I S UNJU S TIFI E D TO DI S ALLO W TH E D E DUCTION ON THI S G ROUND. TH E APP E LLANT S TATED THAT TH E Y AR E FOLLOWIN G P E R CE NTA GE COMPL E TION M E THOD OF ACC OUNTIN G AND W HATE VE R UNITS AR E SOLD TH EY HA VE OFF E R E D PROFIT ON TH E SAM E AND THU S CLAIM E D D E DUCTION U / S 80 - IB (10) ON I T. TH E SAID METHOD OF ACCOUNTING IS ALSO R E COGNI ZE D BY TH E CBDT WHICH HAS ISSUED CIR C ULAR INSTRUCTION NO 4 /2 009 DAT E D 30/06/2009 . THE PHOTOCOPY OF THE SAID INSTRUCTION IS E N C LOSED FOR READY R E F E RENCE. TH E HON. IT A T, PUNE HAS ALLO WE D TH E DEDU C T I ON U / S 80 - IB (10) W H E RE TH E ASSESSE E HAD FOLLO WE D P E R CE NTA GE C OMPL E TION M E THOD AND HA S F URTH E R H E LD THAT S EC TION 80-IB ( 10 ) DO ES NO T D E BAR A C LAIM OF D E DUCTION IN R E SP E CT OF IN C OMPL E TE PROJ EC TS. TH E SAI D C A SE I S B K PATE ENTERPRISES VS. DY CIT REPORTED IN (2009) 125 TTJ ( PUNE) 974 . IN THIS CAS E TH E PROJECT WAS ONLY 24 % COMPL E T E D BUT STILL D E DUCTION U /S 80 - IB (10 ) W AS ALLOW E D B Y TH E HON. ITAT. 'TH E A . R . OF TH E A PP E LLAN T S TATED THAT THE FIRM HAD' S UBMITT E D COMPL E TION CERTIFI C AT E DURIN G TH E C OUR SE OF ASS ESS M E NT PRO CEE DING S IT SE LF A ND THU S HAD RI G HTL Y C OMPLI E D W ITH TH E C ONDITION S LAID DO W N IN S EC TION 80 - IB (10). TH E UNITS WE R E COMPL E T E IN ALL R ES P E CT AT TH E TIM E OF SAL E ITSELF AND THE SAME COULD HAV E B E EN CONFIRMED BY TH E A .O . FROM THE SAL E D E ED SUBMITTED TO HIM OF EA C H BLOCK SOLD DURING TH E RELE V ANT A . Y . AS 13 ITA NO.1543/PUN/2014 AY.NO.2010-11 ALREADY DIS C U SSE D, TH E TIM E LIMIT FOR OBTAINING COMPL E TION CE RTIFI CA T E FOR PROJ EC T S COMM E NC E D AFT E R 01 / 0 4 / 2 00 5 IS 4 YEA R S [ AM E ND E D TO 5 YE AR S ] . F ACE D W ITH S IMILAR CIR C UM S T A NCE S IN A R E CENT JUD GE MENT , TH E HON. C H E NNAI I T A T ' D' B E N C H IN RAMANIYAM CASTLES (P) LTD VS. ASST. CIT (CHENNAI) REPORTED IN [2011] 128 ITD 130 H AS HELD THAT 'TH E PERTIN E NT QU E STION H E R E W AS WH E TH E R, FOR GIVING TH E BENEFIT OF DEDUCT I ON U / S 80 - IB (10), WHERE AN A SSES SEE WAS FOLLOWIN G TH E P E R CE NTAGE COMPL E TION M E THOD, IT W A S N ECES SA RY TO OBTAIN S UCH COMPL E TION CE RTI FICA T E FOR EAC H YE AR OF HIS C L A IM OR WAS IT S UFFI C I E N T T HAT S U C H C E RTIFI CA T E I S OBTAINED ON TH E C OM P L E TI ON O F TH E HOU S IN G PROJ EC T AS A W HOL E . S TIPUL A T IO N FOR OBT A INING COMPL E TION C E RTI F ICATE SHOULD NOT B E S O INT E RPR E T E D TO MEAN THAT AN A SSE SSEE C AN C LAIM EXE MPTION UND E R SEC TION 80 - IB (10) ONL Y IN TH E YE AR OF C OMPL E TION O F TH E W HOL E OF TH E HOUSING PROJE C T, E V E N WH E R E TH E PROJECT S TR E TCHES OV E R A NUMB E R OF YEAR S AND TH E A SSE SSE E R E TURNS ITS IN C OME BAS E D ON PER CE NTA GE C OMPL E TION M E THOD. IT WOULD ONL Y M E AN THAT TH E ASS ESSEE HAS TO OBTAIN S U C H C E RTIFI C AT E ON C OMPL E TION O F TH E PROJ EC T , IT W OULD LOO SE THE D E DU C TION ALR E AD Y G R A NT E D UND E R S E CTION 80 - IB ( 1 0) F OR T H E EA RLI E R YE AR . C L A U SE (A) O F TH E S EC TI O N 80 - IB ( 10 ) S PE C IFI E S THAT D EVE LOPM E NT AND C ONSTRU C TION OF TH E PROJE C T H AS TO S TART ON OR B E FOR E FIRST DA Y OF OCTOB E R, 19 95 A ND TH E PROJ EC T HAS TO B E COMPL E T E D WITHIN 4 YE ARS FROM TH E E ND OF TH E FINAN C IAL Y E AR IN WHICH A PPROVAL FOR TH E PROJECT W AS R E CEI VE D FROM LOCAL AUTHORIT Y . THU S , A PROJECT C AN HA VE A SPAN OF NOT MOR E THAN FOUR YE ARS FROM TH E END OF TH E FINAN C IAL Y EAR IT HAD R E CEI VE D APPRO V AL. EX PLANATION UND E R CLAUS E (A) ONL Y SP EC IFI E S HO W TO R EC KON TH E DAT E OF APPROVAL AND DAT E OF COMPL E TION. IT WOULD NOT M E AN THAT AN ASSESS EE CAN HAV E TH E BEN E FIT OF SECTION 80 - IB (L0) ONL Y IN THE YE AR OF COMPL E TION OF TH E PROJECT , ES P E CI A LL Y S O, FOR AN ASS ES S EE NOT FOLLO W ING PROJ E CT C OMPLETION M E THOD FOR A CC OUNTING IT S INCOM E . IF OTH E R W I SE INT E RPRET E D , IT W OULD B E E QUI V AL E NT TO FORCING AN AS SE SSE E TO FOLLOW A PARTICULAR M E THOD OF AC C OUNTING , WHICH WOULD N E V E R HAV E BEEN THE INTENTION OF L E GISLATION . INT E NTION WOULD ONLY HAV E BEEN THAT FOR TH E PROJ EC T S AS A W HOL E , TH E R E SHOULD B E CE RTIFI CA TION FROM TH E R E L EV ANT A UTHORIT Y PRO V ING TH E C OMM E N CE M E NT A ND C OMPL E TION A ND NOT TH AT A C OMPL E TION CE RTIFICAT E SHOULD B E TH E R E IN EV ER Y YEA R OF TH E PROJ EC T SP A N. T H E C E RTIFICATION S AR E FOR E N S URING THAT TH E PROJ EC T SPAN DOES NOT E XC EE D TH E PR E S C RIBED P E RIOD A ND NOTHING MOR E . O F C OUR SE IF S U C H P E RIOD EXCEE D S TH E PR E SCRIB E D LIMIT, TH E R EV ENU E W OULD B E WEL L W I T HIN IT S RI G HT S TO WI THDR AW TH E C L A IM S A LR E AD Y ALLO WE D, FOLLO W ING TH E PRO CE DUR E PR ESC RIB E D UND E R TH E AC T . THU S ,IF TH E ASSESS IN G OFFI CE R DID NOT INSI S T ON TH E COMPLETION CERTIFICAT E IN TH E IMPUGN E D YEAR, H E W AS NOT ACTIN G IN CONTRA VE NTION OF THE S TATUT E , BUT W AS ONL Y F OLLO W ING IT IN THE RIGHT M E ANIN G . IN AN Y C AS E , NOBOD Y C OULD SAY THAT TH E V I EW T A K E N B Y TH E ASSESS IN G O FF I CE R W A S NOT A POS S IBL E ON E. THIS VIEW HAS ALSO BEEN TAKEN B Y THE CBDT IN ITS INSTRUCTION NO 4 /2009 ! DATED 0.06 . 2009 . F URTH E R , IN TH E INSTANT CAS E , THER E WAS A L E TT E R FROM C ORPORATION, C H E NNAI ISSUED TO ITS ASS TT. R EVE NU E OFFI CE R, CL E ARL Y D E MONSTRATIN G THAT TH E P R OJ ECT WAS COMPL E T E D B Y TH E A SSESSEE. THE METHOD OF PERCENTAGE COMPLETION METHOD HAS BEEN ALLOWED VIDE CBDT INSTR U CTION NO 4 / 2009 DATED 30.06.2009 WHICH IS REPRODUCED HEREUN D ER: 14 ITA NO.1543/PUN/2014 AY.NO.2010-11 ' 2 . C L A RIFI C ATION S HA VE B EE N S OU G HT B Y V ARIOU S C C S IT ON TH E I SS U E W H E TH E R TH E DEDU C TION U / S 80 - IB (10) W OULD B E AVA IL A BL E ON A YEA R - TO -YEA R BA S I S W H E R E A N A SSESSEE I S SHO W IN G PRO F IT ON P A RTIAL C OMPL E TION O R IF IT W OULD B E A VA IL A BL E ONL Y IN TH E YEA R O F C OMPL E TION O F TH E PROJ EC T U / S 80 - IB (10) . 3. TH E ABO VE ISSU E HAS B EE N CON S ID E RED B Y BOARD & I S C L A RIFIED AS UND E R: -. (A) T H E D E DU C TION CA N B E C L A IMED ON A YE AR - TO -YE A R BASI S W H E R E TH E A SSESSEE I S S HO W IN G PRO F IT FROM PARTIAL C OMPL E TION OF TH E PROJ E CT IN E V E R Y YE AR. (B) IN CASE IT IS LATE AND IT IS FOUND THAT THE CO NDITION OF COMPLETING THE PROJECT WITHIN THE SPECIFIED TIME - LIMIT OF 4 YEARS AS STATED IN SECTION 80 - IB (10) HAS N OT BEEN SATISFIED, THE DEDUCTION GRANTED TO THE ASSESSEE IN THE EARLIER YEARS SHOULD BE WITHDRAWN . 4. THE ABOVE INSTRUCTION WILL OVERRIDE EARLIER CLARIFI CATION ON THIS ISSUE CONTAINED IN MEMBER ( R)'S D.O. LETTE R NO. 58 / MISC / 2008 / CIT ( IT & CT), DATED 29.04.2008 AND MEMBER (IT),S DO LETTER N0279/MISC/46/08-ITJ DATED 02.05.2008 '. IN M/S VISHNU BUILDERS VS. ACIT, CENTRAL CIRCLE, VIJAY WAD A ,ITA NO 178, 179 & 180 / VIZAG / 2011 DATED 27.07.2011 THE HON'BLE ITAT VISAKHAPATNAM BENCH IN THE MATTER RELATING TO SUBMISSION OF COMPLETION CERTIFICATE HA S HELD THAT THE 'THE REQUIREMENT OF LAW U/S 80IB (10 ) FOR ALLOWING A DEDUCTION UNDER TH I S SECTION IS ONLY THAT THE PROJECT SHOULD BE COMMENCED AND COMPLETED WITHIN THE PERIOD PRESCRIBED UNDER CLAUSE (A) OF TH IS S E CTION 80IB (10) OF THE ACT. TO PROVE THE COMPLETION OF PROJECT WITHIN THE SPECIFIED PERIOD IF THE ASSES SEE IS NOT ABLE TO FILE A COMPLETION CERTIFICATE OTHER EVI DENCE IN THIS REGARD MAY BE TAKEN INTO ACCOUNT TO DETERMI NE TH E ACTUAL DATE OF COMPLETION. THEREFORE, THE FILING OF COMPLETION CERTIFICATE IS NOT A CONDITION PRECEDENT FOR ALLOWING A DEDUCTION U/S 80IB (10) OF THE ACT'. IN NAGARJUNA HOMES VS. INCOME TAX OFFICER, ITA NO 722/HYD/2009 DATED 30/09/2010 REPORTED IN [2011] 46 SOT 287 [HYD] THE HON'BLE ITAT HYDERABAD A' BENCH HAS HELD THAT EVEN IF THE ASSESSEE CONSTRUCTED ANY OF TH E UNITS WHICH EXCEEDED 1500 SQ. FT . , THE ASSESSEE IS E LIGIBL E FOR DEDUCTION IN RESPECT OF ALL THE UNITS OF THE RESIDENTIAL BLOCK, WHICH ARE LESS THAN 1500 SQ FT EACH E XCLUDING THE UNIT WHICH EXCEED E D 1 5 00 SQ FT . TH E R E FOR E , NO INFIRMITY IS FOUND IN THE ORDER OF THE CIT [A] ON T HIS ASP E CT . ACCORDINGLY, THE SAME IS CONFIRMED AND THIS GROUND OF THE REVENUE IS REJECTED . FROM THE ABOV E INSTRUCTION, IT IS CLEAR THAT THE ASSESSE E CAN OBTAIN COMPLETION CERTIFICATE WITHIN A PERIOD OF 4 YEARS FROM TH E DATE OF FIRST APPROVAL AND IN OUR CASE TH E SAM E HAS BE E N OBTAINED AND FURNI S HED TO YOUR HONOUR DURING THE ASS E SSM E NT PROCE E DINGS I TS E LF WITHIN TH E STIPULAT E D P E RIOD . 15 ITA NO.1543/PUN/2014 AY.NO.2010-11 YOUR HONOUR, WE FURTHER REQUEST THAT ALL PROVISIONS RELATING TO DEDUCTION EXEMPTION OR RELIEF SHOULD BE CONSTRUE D REASONABLY AND IN FAVOR OF THE ASSESSEE . THE SAID OBS E R V ATION HAV E BE E N MAD E BY THE HON. SUPR E ME COURT IN C I T VS. GW ALIOR RA Y ON SILK M ANUFACTURIN G C OMPAN Y LT D . [1 992 ] 104 CTR [S C ] 2 4 3 . IN TH E CA S E O F BAJAJ TEMPO LTD V S. C IT [1 992 ] 10 4 C TR [S C ] 11 6 A PPRO V IN G D E CI S ION S OF HON. BOMBA Y HIGH C OURT R E POR TE D IN CAPSULATION SER V I C E S [P] L TD V S . C IT [1 973 ] 9 1 I T R 566 [BORN] AND TH E HON. PUNJAB AND HAR Y ANA HIGH C OUR T IN PHA G OO MAL S A NT RAM VS . CI T [1 969 ] 74 I T R 734 [P&H], THE HON. SUPR E M E C OURT H E LD 'A PRO V ISION IN A TA X IN G S T A TUT E GR A NTIN G IN CE NTI VE S FO R PROMOTING GR O W TH A ND D EVE LOPM E NT S S HOULD BE CONSTRU E D LIB E RALL Y AND SINC E A PRO V I S ION FO R PROMOTIN G E CONOMI C G RO W TH HA S T O B E INT E RPR E TED LIB E RALLY, TH E R ES TRICTION ON IT TOO HA S TO B E C ON S TRU E D S O A S TO A D V AN CE TH E OBJ EC TI VE OF T H E PRO V I S ION A ND NOT TO FRUSTRAT E IT.' 9.1 I H A V E GON E THROU G H TH E S UBMI S SION AND M ATE RI A L ON R EC ORD A ND IT I S SEE N THAT TH E AO HA S ACCE PT E D TH A T T H E C O M PL E TION CERT IFIC A T E H AS B EE N S UBMITT E D B Y TH E A PP E LL A NT DURIN G TH E AS S ESS M E NT PRO CEE DIN GS IT SE LF . F URTH ER , TH E AO HA S NOT QUE S TION E D TH E C OMPLETION O F TH E UNIT B E FO RE S A L E D EE D. T H E A .R . OF TH E APP E LLANT FIRM S TAT E D THAT TH E S A L E D E ED OF ALL TH E RESI D E NTI A L UNIT S WERE S UBMITT E D TO TH E AO A ND TH E SA L E DE E D CL E ARL Y M E NT I ON S TH A T TH E UNIT IS COMPL E T E IN A LL R E SPE C T. TH E A .R . AL S O M E NTION E D THA T TH E B A N K W ILL NOT I S SU E FIN A L PA Y M E NT S IF TH E UNIT S ARE I NCO MP LE T E A T TH E T I M E O F EXE CUTION O F SA L E D EE D . F URTH E R, A PE R U SA L O F AN N EX UR E E N C LO SE D B Y M U N I C IPAL C OUN C IL, BHU S A W AL ALON G W I T H TH E IR CE RTI F I CA T E DAT E D 07 . 02 . 2011 R EVE AL S THAT TH E DAT E OF C OMPL E TION CE RTIFI C AT E IN R ES P EC T OF A LL T H E UNIT S IS W I THIN T HE TI ME LIMI T P RESC RIB E D UND E R SEC.80-IB(10) . I HOLD TH A T M ERE DE L AY I N O BTA I N IN G C OMP LE TIO N CE RTIFI C AT E A ND F URTH E R HOLD TH A T OBT A ININ G C OMPL E T I ON CE R T IF IC AT E OF E AC H UNIT INDI V IDU A LL Y W ILL AL S O NOT A D V ER S EL Y AF F EC T T H E ASSESSEE . T H E APP E LL A NT H AS 4 YEARS [NO W 5 YEA R S ] TO OBT A IN C OMPL E TION CE RTIFI CA T E . IT I S TH E D A T E O F ' C OMPL E TION' W HI C H I S R E QUI RE D TO B E TAK E N INTO C ON S ID E RAT I ON T O D EC ID E TH E APPLICABILIT Y OF S E C. 80- IB(10) A ND NOT THE D ATE O F CO MPL E T I ON CE RT I FI C A TE P E R SEC TIO N. IT I S NOT TH E CASE O F T H E AO T H AT T H E COM P L E T I O N CE RTIFI CA T E ARE N O T O B T AIN E D W ITHI N 4 YEA R S F ROM TH E D ATE O F F IR S T A PPR OVA L . H E N CE, TH E DEDU C TION ON THI S G ROUND AL S O CA NN OT B E D E N IE D TO TH E A PP E LL A NT . T HU S , TH E APP E LL A NT SUC CEE DS ON THI S GR OUND O F AP P EA L . 10. AS FA R AS DEDUCTION U / S 80 - IB (10) IS CONCERNED, THE A O. I S DIRECTED TO ALLOW D E DUCTION U / S 80 - IB (10) TO THE APPELLANT SUBJ E CT. 11 . T H E APP E LLANT HAS ST A T E D THAT IN IT S APPEAL FOR AY. 2 00 7- 08 TO 2 00 9- 10 ON SIMILAR FA C TS AND GROUND S OF APP E AL, TH E TH E N C IT( A ) HAS ALR E AD Y A CCE PT E D T H E A PP E LLANT'S GROUND S OF A PP E AL AND A LLO WE D TH E APP E AL ON THI S ISS U E AN D R IG HTL Y A LLO WE D TH E D E DU CT ION U / S 80 - IB ( 10 ). 16 ITA NO.1543/PUN/2014 AY.NO.2010-11 T H E A R. OF THE APP E LLANT FURTH E R S TAT E D THAT HIS APP E AL WITH HON . IT AT , P UN E B E N C H HAS AL S O B EE N ALLO W ED IN R ES P EC T OF PROPORTIONAT E PRO - RATA D ISA LLO W AN CE IN TH E MATT E R OF ROW HOU SE SOLD TO SHRI RAJKUMAR PAR W ANI A ND HIS WIF E AND FURTH E R THE A PP E AL FIL E D B Y TH E R E VENU E IN RESP E CT O F AY. 2 00 7 - 0 8 AND AY . 2008- 0 9 HAS B EE N R E J EC T E D B Y TH E HON. IT AT PUN E BE N C H A GAI N S T TH E A PP E LL A T E O RD ER O F HON. C IT A PP EA L S II, NA S IK . TH E PHOTO C OP Y OF TH E HON'BL E PUN E , IT A T BEN C H ORD E R IS ALR E AD Y SUBMITT E D B Y A R . A D V O C AT E RAJ E SH R. SHARMA ON 08 / 04 / 2 01 4 FOR R E CORD AND R E AD Y R E F E R E N CE. 12. I HA VE G ON E THROU G H TH E A PP E LL A T E ORD E R OF M Y PRED ECESS OR IN THIS C A SE FOR A Y. 2 00 7 - 08 TO A Y. 2 00 9- 10 AND ALSO TH E IT A T ORD E R DA TE D 3 0 / 09 / 2013 FOR AY . 2 0 07- 0 8 AND 2 008 -0 9. T H E T RIBUNAL HA S H E LD AS UND E R: - 11 . 4 'WE FIND M E RIT IN TH E ABOV E S UBMI SS ION OF TH E LD. C OUNS E L FOR TH E A SSE SSE E . T H E LD. C IT( A ) HA S G IV E N TH E FINDING THAT NO BUILDING P E RMI S SION I S IN E X CES S OF 1 5 00 SQ.FT . A S PR ESC RIB E D U / S 80IB(10) . T H E CE RTIFI CA T E OBTAIN E D FROM TH E C HI E F O FFI CE R , BHU S A WA L M UNI C IPAL CO UN C IL DAT E D 1 7 / 01 / 2 011 S T ATES T H A T TH E BUILDIN G W ORK H AS BEE N DON E / CA RRI E D IN A CC ORDAN CE WITH TH E BUILDING P E RMISSION GRANT E D B Y BHU S AWAL MUNI C IPAL C OUN C IL. TH E BUILT UP AR E A OF E A C H C OMPL E T E D BUILDING DO E S NOT E XC EE D 1 5 00 S A.FT. IN AN Y C A SE . A S P E R TH E SEC OND CE RTIFI C AT E OBT A IN E D FROM BHU S A WA L M UNI C IPAL C OUN C IL DAT E D 0 7 / 0 2/ 2 011 ALTHOU G H TH E L D. C I T(A) IN HI S ORD E R H E LD THAT TH E V ARIOU S E VID E N CES PRODU CE D B Y TH E A S S ES S EE C ANNOT BE BRUSH E D ASIDE, STILL HE H E LD THAT TH E UNIT EXCEE D S 1 5 00 S Q . FT . SIN CE IN TH E IN S TANT CASE, TH E R E I S NO DI S PUT E T O TH E FA C T THAT TH E 2 UNIT S S OLD TO M R S. A ND M R. R A JKUM AR PAR WA NI WE R E S AN C TI O N E D A S SE P A R A T E UNIT S B Y TH E MUNI C IPAL C OUNCIL, TH E R E W E R E SE PARATE S ALE AGR EE M E NT S E NT E R E D INTO FOR TH E S AL E OF TH E 2 UNIT S , TH E R E WER E 2 S E PARAT E C OMPL E TION C E RTIFICAT E S I SS U E D B Y THE MUNI C IPAL C OUN C IL AND SE PARAT E MUNI C IPAL TAX B ILL S WE R E I SS U E D FOR TH E 2 UNIT S , THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE HIGH COURT IN THE CASE OF ANKIT ENTERPRISES (SUPRA) WE H OLD THAT THE ABOVE 2 FLATS CANNOT BE TREATED AS ONE UNI T TO COMPUTE THE BUILT UP AREA FOR THE PURPOSE OF SECTIO N 80IB(10) OF THE I.T. ACT. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. 12.1 FOLLOWING THE TRIBUNALS DECISION, THE CLAIM OF THE APPELLANT IS ALLOWED. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APP EAL BEFORE US. 4. ON THE DATE OF HEARING NONE APPEARED ON BEHALF OF ASSESSEE NOR WAS ANY ADJOURNMENT APPLICATION WAS FILED BU T 17 ITA NO.1543/PUN/2014 AY.NO.2010-11 HOWEVER WRITTEN SUBMISSIONS HAVE BEEN FILED. FROM THE CAS E RECORDS, IT IS SEEN THAT EVEN IN THE PAST NONE APPEARED ON BEHALF OF THE ASSESSEE. IN THE WRITTEN SUBMISSIONS IT IS SUBMITTE D THAT ON THE SAME GROUND, THE APPEAL OF REVENUE FOR A.YS. 2007- 08 TO 2009-10 WERE DISMISSED BY THE TRIBUNAL AND THE APPEAL FOR A.Y. 2008-09 WAS DECIDED IN ITS FAVOUR. THE COPY OF THE ORDER S OF TRIBUNAL WAS ALSO FURNISHED ALONG WITH THE WRITTEN SUBMISSION S. WE THEREFORE PROCEED TO DISPOSE OF THE APPEAL EX-PARTE- QUA THE ASSESSEE ON THE BASIS OF SUBMISSIONS MADE BY LD. D.R. AND MATERIAL ON RECORD. BEFORE US, LD. D.R. SUPPORTED THE ORD ER OF LD. CIT(A). 5. WE HAVE HEARD LD. D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESPECT TO ALLOWING OF DEDUCTION U/S 80IB(10) OF THE ACT. BEFORE US, IN THE WR ITTEN SUBMISSION, IT IS STATED THAT IN EARLIER YEAR, THE ISSUE HAS BEEN DECIDED IN ASSESSEES FAVOUR. WE FIND THAT FOR A.Y.S 2007- 08 AND 2008-09, THE ISSUE WAS DECIDED BY THE CO-ORDINATE B ENCH OF THE TRIBUNAL IN ASSESSEES FAVOUR BY HOLDING AS UNDER : 7. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISION CITED BEFORE US. WE FIND THE AO IN THE INSTANT CASE DENIED THE DEDUCTION U/S.80I B(10) ON THE GROUND THAT (A) THE LAND IS IN THE NAME OF THE PARTNERS AND NOT IN THE NAME OF THE FIRM (B) THE PROJECT AS A WHOLE HAS NOT BEEN APPROVED BY THE LOCAL AUTHORITY (C) ONE OF THE UNITS SOLD TO A CUSTOMER IS IN EXCESS OF 1500 SQ.FT. (D) THE COMPLETION CERTIFICATE FROM LOCAL AUTHORITY HAS NOT BEEN OBTAINED TILL 27-02-2009 AND (E) THE PAMPHLET OF TH E PROJECT SHOWS THE PLANNED INDEPENDENT BUNGALOWS HAVING BUIL T UP AREA 1752 SQ.FT. WE FIND ALL THE OBJECTIONS HAVE BE EN DECIDED IN FAVOUR OF THE ASSESSEE BY THE LD.CIT(A) WHICH HA S ALREADY 18 ITA NO.1543/PUN/2014 AY.NO.2010-11 BEEN REPRODUCED IN THE PRECEDING PARAGRAPHS WHICH H AS BEEN CHALLENGED BY THE REVENUE IN THE GROUNDS OF AP PEAL. 7.1 SO FAR AS THE GRIEVANCE OF THE REVENUE THAT THE LAND IS NOT IN THE NAME OF THE FIRM AND IS IN THE NAME OF T HE PARTNERS AND THEREFORE THE ASSESSEE IS NOT ENTITLED TO DEDUC TION U/S.80IB(10) OF THE I.T. ACT, 1961 WE FIND THE ISSU E STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. R ADHE DEVELOPERS REPORTED IN 341 ITR 403 WHEREIN THE HON BLE HIGH COURT HAS UPHELD THE DECISION OF THE TRIBUNAL WHICH WAS RELIED ON BY THE LD.CIT(A). THE RELEVANT OBSERV ATION OF THE HONBLE HIGH COURT READS AS UNDER : SECTION 80IB(10) OF THE INCOME TAX ACT, 1961, REQUIRES INVOLVEMENT OF AN UNDERTAKING IN DEVELOPIN G AND BUILDING HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY. CERTAIN CONDITIONS ARE PRESCRIBED IN SUB SECTION (10) SUCH AS THE DATE BY WHICH THE UNDERTAKING MUST COMMENCE AND DEVELOPING AND CONSTRUCTION WORK AND THE MINIMUM AREA OF PLOT OF LAND ON WHICH SUCH PROJECT WOULD BE PUT UP AS WELL AS THE MAXIMUM BUILT UP AREA OF EACH OF THE RESIDENTIAL UNITS TO BE LOCATED THEREON. THE PROVISIONS NOWHERE REQUIRED THAT ONLY THOSE DEVELOPERS WHO THEMSELVES OWN THE LAND WOULD RECEIVE THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. NEITHER THE PROVISIONS OF SECTION 80IB NOR ANY OTHER PROVISIONS CONTAINED IN OTHER RELATED STATUTE S DEMONSTRATE THAT OWNERSHIP OF THE LAND WOULD BE A CONDITION PRECEDENT FOR DEVELOPING THE HOUSING PROJECT. SUCH REQUIREMENT CANNOT BE READ INTO THE STATUTE BECAUSE THERE IS NOTHING IN SECTION 80IB (1 0) OF THE ACT REQUIRING THAT OWNERSHIP OF THE LAND MUS T VEST IN THE DEVELOPER FOR HIM TO BE ABLE TO QUALIFY FOR SUCH DEDUCTION. MOREOVER, THE TERM DEVELOPER HAS BEEN UNDERSTOOD IN COMMON PARLANCE AS WELL AS IN THE LEGAL SENSE CARRYING A MUCH WIDER CONNOTATION. IT IS WELL SETTLED THAT WHILE INTERPRETING A STATUT E, PARTICULARLY, A TAXING STATUTE, NOTHING CAN BE READ INTO THE PROVISIONS WHICH HAS NOT BEEN PROVIDED BY THE LEGISLATURE. THE CONDITION WHICH IS NOT MADE PAR T OF SECTION 80IB(10) OF THE ACT, NAMELY, THAT OF OWN ING THE LAND WHICH THE ASSESSEE DEVELOPS, CANNOT BE SUPPLIED BY ANY PURPORTED LEGISLATIVE INTENT. THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE PREMISE THAT SUCH INCOME WAS DERIVED FROM THE BUSINESS OF THE UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BY THE LOCAL AUTHORITY. TO EXECUTE SUCH HOUSING PROJECTS, THE ASSESSEE HAD ENTERED INTO DEVELOPMENT AGREEMENTS WITH LAND OWNERS. UNDER THESE DEVELOPMENT AGREEMENTS, THE ASSESSEE AGREED TO DEVELOP THE LAND BELONGING TO THE LAND OWNERS ON CERTAIN TERMS AND CONDITIONS. ON THE SAME DAY THE 19 ITA NO.1543/PUN/2014 AY.NO.2010-11 LAND OWNERS ENTERED INTO AGREEMENTS TO SELL THE LAN D IN QUESTION TO THE ASSESSEES. THE ASSESSEES WERE DESCRIBED AS PURCHASERS AND THE LAND OWNERS WERE DESCRIBED AS THE SELLERS. THE PROFIT OR LOSS FROM T HE PROJECT WAS TO BE THE ASSESSEES. IN SOME CASES, THE ASSESSEE WAS TO RECEIVE A FIXED REMUNERATION FOR TH E DEVELOPMENT. THE ASSESSING OFFICER REJECTED THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80- IB(10) OF THE ACT ON THE GROUND THAT THE ASSESSEES WERE NOT THE OWNERS OF THE LAND, THAT APPROVAL BY T HE LOCAL AUTHORITY AND PERMISSION TO DEVELOP THE PROJE CT AND COMMENCE CONSTRUCTION WERE NOT IN THE NAME OF THE ASSESSEES AND THAT THE ASSESSEES HAD MERELY ACTED AS AGENTS OR CONTRACTORS FOR CONSTRUCTION OF 13 RESIDENTIAL HOUSES. THE TRIBUNAL HELD THE ASSESSEES ENTITLED TO THE DEDUCTION. ON APPEALS BY THE DEPARTMENT : HELD ACCORDINGLY (I) THAT THE TERMS AND CONDITIONS UNDER WHICH THE ASSESSEES UNDERTOOK THE DEVELOPMENT PROJECTS AND TOOK OVER THE POSSESSION O F THE LAND FROM THE ORIGINAL OWNERS, INDICATED THAT T HE ASSESSEES HAD TOTAL AND COMPLETE CONTROL OVER THE LAND IN QUESTION. THE ASSESSEES COULD PUT THE LAND TO USE AS AGREED BETWEEN THE PARTIES. THE ASSESSEE HAD FULL AUTHORITY AND ALSO RESPONSIBILITY TO DEVEL OP THE HOUSING PROJECT BY NOT ONLY PUTTING UP THE CONSTRUCTION BUT BY CARRYING OUT VARIOUS OTHER ACTIVITIES INCLUDING ENROLLING MEMBERS, ACCEPTING MEMBERS, CARRYING OUT MODIFICATIONS ENGAGING PROFESSIONAL AGENCIES AND SO ON. MOST SIGNIFICANTLY , THE RISK ELEMENT WAS ENTIRELY THAT OF THE ASSESSEES . THE LAND OWNERS AGREED TO ACCEPT ONLY A FIXED PRICE FOR THE LAND IN QUESTION. THE ASSESSEES AGREED TO PAY OFF THE LAND OWNERS FIRST BEFORE APPROPRIATING ANY PART OF THE SALE CONSIDERATION OF THE HOUSING UNITS FOR THEIR BENEFIT. IN SHORT, THE ASSESSEES TO OK THE FULL RISK OF EXECUTING THE HOUSING PROJECT AND THEREBY MAKING PROFIT OR LOSS, AS THE CASE MAY BE. THE ASSESSEES INVESTED THEIR OWN FUNDS IN THE COST OF CONSTRUCTION AND ENGAGEMENT OF SEVERAL AGENCIES. IT COULD NOT BE SAID THAT THE ASSESSEES ACTED ONLY AS WORKS CONTRACTORS. IN THAT VIEW OF THE MATTER, THE ADDITION OF THE EXPLANATION TO SECTION 80-IB(10) WI TH RETROSPECTIVE EFFECT FROM APRIL 1, 2001, WOULD HAVE NOT MATERIAL BEARING IN THE CASES ON HAND. (II) THAT THE ASSESSEE HAD, IN PART PERFORMANCE OF THE AGREEMENT TO SELL THE LAND IN QUESTION, BEEN GIVEN POSSESSION THEREOF AND HAD ALSO CARRIED OUT THE CONSTRUCTION WORK FOR DEVELOPMENT OF THE HOUSING PROJECT. A COMBINED READING OF SECTION 2(47)(V) OF THE ACT AND SECTION 53A OF THE TRANSFER OF PROPERTY ACT , 1882, WOULD LEAD TO A SITUATION WHERE THE LAND WOULD FOR THE PURPOSE OF THE ACT BE DEEMED TO HAVE BEEN TRANSFERRED TO THE ASSESSEES. IN THAT VIEW OF THE MATTER, FOR THE PURPOSE OF INCOME DERIVED FROM SUCH 20 ITA NO.1543/PUN/2014 AY.NO.2010-11 PROPERTY, THE ASSESSEES WOULD BE THE OWNERS OF THE LAND FOR THE PURPOSE OF THE ACT ALTHOUGH TITLE IN T HE LAND HAD NOT YET PASSED ON TO THE ASSESSEES AND WOULD PASS ONLY UPON EXECUTION OF A DULY REGISTERED SALE DEED. FOR THE LIMITED PURPOSE OF DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT, THE ASSESSEES H AD SATISFIED THE CONDITION OF OWNERSHIP ALSO, EVEN IF IT WAS NECESSARY. (III) THAT EVEN IN CASES WHERE THE AGREEMENT PROVID ED THAT THE ASSESSEE WAS TO RECEIVE A REMUNERATION, TH E ASSESSEE WAS GIVEN FULL RIGHTS TO DEVELOP THE LAND BY PUTTING UP THE HOUSING PROJECT AT ITS OWN RISK AND COST. THE ENTIRE PROFIT FLOWING THEREFROM WAS TO BE RECEIVED BY THE ASSESSEE. THE PROJECT WAS BEING DEVELOPED BY THE ASSESSEE AT ITS OWN RISK AND COST AND NOT THAT OF THE LAND OWNERS. THE ASSESSEE THUS WAS NOT WORKING AS A WORKS CONTRACTOR. INTRODUCTION OF THE EXPLANATION TO SECTION 80-IB(10) IN THIS CAS E ALSO WOULD HAVE NO EFFECT. THE ASSESSEE WAS ENTITLE D TO THE BENEFIT UNDER SECTION 80-IB(10) OF THE ACT E VEN WHERE THE TITLE TO THE LAND HAD NOT PASSED ON TO TH E ASSESSEE AND THE DEVELOPMENT PERMISSION MAY ALSO HAVE BEEN OBTAINED IN THE NAME OF THE ORIGINAL LAND OWNERS. 7.2 RESPECTFULLY FOLLOWING THE ABOVE DECISION OF TH E HONBLE HIGH COURT AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE ON THIS POINT THE FIRST OBJECTION OF THE REVENUE THAT THE LAND IS IN THE NAME OF THE PARTNERS 14 AND NOT IN THE NAME OF THE FIRM IS REJECTED AND THE SAME IS DEC IDED IN FAVOUR OF THE ASSESSEE. 7.3 SO FAR AS THE OBJECTION OF THE REVENUE THAT THE HOUSING PROJECT AS A WHOLE HAS NOT BEEN APPROVED BY THE LOC AL AUTHORITY WE FIND THE LD.CIT(A) WHILE DECIDING THE ISSUE HAS RELIED ON CBDT CIRCULAR NO.05/2005 DATED 15- 07-200 5 AND SECTION 5 OF STANDARDISED BUILDING BYE-LAWS AND DEVELOPMENT CONTROL RULES APART FROM RELYING ON VAR IOUS DECISIONS. HE ALSO OBSERVED FROM THE CORRESPONDENCE BETWEEN THE ASSESSEE AND BHUSAWAL MUNICIPAL CORPORA TION THAT THE LAYOUT AS A WHOLE HAS BEEN APPROVED BY THE LOCAL AUTHORITY. THE LD. DEPARTMENTAL REPRESENTATIVE COUL D NOT CONTROVERT THE FINDINGS OF THE LD.CIT(A) ON THIS IS SUE. ACCORDINGLY, THE SECOND ISSUE ON WHICH THE AO HAS D ENIED THE DEDUCTION U/S.80IB(10) IS DECIDED IN FAVOUR OF THE ASSESSEE AND THE ORDER OF THE CIT(A) ON THIS ISSUE IS UPHELD. 7.4 SO FAR AS THE GRIEVANCE OF THE REVENUE THAT ONE OF THE HOUSING UNITS SOLD IS IN EXCESS OF BUILT UP AREA OF 1500 SQ.FT. WE FIND THE LD.CIT(A) HAS HELD THAT EVEN THOUGH THE UNIT MAY BE MORE THAN 1500 SQ.FT., HOWEVER, THE ENTIRE DEDUCTION CANNOT BE DENIED AND ONLY PRO-RATA DISALL OWANCE CAN BE MADE. HOWEVER, IN VIEW OF OUR FINDINGS IN SUBSEQUENT PARAS IN ASSESSEES APPEAL WHEREIN IT HA S BEEN HELD THAT THE 2 UNITS CANNOT BE HELD AS ONE UNIT, T HE GRIEVANCE OF THE REVENUE ON THIS ISSUE IS ALSO DISM ISSED. 21 ITA NO.1543/PUN/2014 AY.NO.2010-11 7.5 SO FAR AS THE DENIAL OF DEDUCTION U/S.80IB(10) ON THE GROUND THAT THE BHUSAWAL MUNICIPAL COUNCIL HAS NOT ISSUED COMPLETION CERTIFICATE UPTO 27- 02-2009 WE FIND THE LD. CIT(A) HAS THOROUGHLY DISCUSSED THE ISSUE AND HAS G IVEN A CATEGORICAL FINDING THAT THE AO HAS ACCEPTED THAT T HE COMPLETION CERTIFICATES HAVE BEEN SUBMITTED BY THE ASSESSEE DURING ASSESSMENT PROCEEDINGS ITSELF. THE LD. DEPARTMENTAL REPRESENTATIVE COULD NOT 15 CONTROVERT THE FINDINGS GIVEN BY THE LD.CIT(A) THAT SALE DEED OF A LL THE RESIDENTIAL UNITS WERE SUBMITTED TO THE AO WHICH CL EARLY MENTIONS THAT THE UNITS ARE COMPLETE IN ALL RESPECT . ONCE THE ASSESSEE COMPLETES THE BUILDING IN ALL RESPECT, HAN DS OVER THE POSSESSION AND APPLIES FOR COMPLETION CERTIFICA TE WELL BEFORE TIME, THEN MERELY BECAUSE OF SOME DELAY IN P ART OF THE LOCAL AUTHORITY FOR ISSUING THE COMPLETION CERT IFICATE LATE FOR NO FAULT ON THE PART OF THE ASSESSEE WILL NOT B E A GROUND TO DENY DEDUCTION U/S.80IB(10). THE FINDING GIVEN B Y THE LD.CIT(A) COULD NOT BE CONTROVERTED BY THE LD. DEPA RTMENTAL REPRESENTATIVE. ACCORDINGLY, THE ORDER OF THE CIT(A ) ON THIS ISSUE IS ALSO UPHELD AND THE GRIEVANCE OF THE REVEN UE IS DISMISSED. 7.6 SO FAR AS THE GRIEVANCE OF THE REVENUE THAT THE PAMPHLETS OF THE PROJECT SHOWS THE PLANNED INDEPEND ENT BUNGALOW HAVING BUILT UP AREA OF 1752 SQ.FT. WE FIN D IN THE A.Y. 2008-09 THE AO HAS ACCEPTED THE PLEA OF THE AS SESSEE THAT NONE OF THE UNITS ARE IN EXCESS OF THE PRESCRI BED LIMIT. FURTHER, THE SUBMISSION OF THE ASSESSEE THAT THE PL AN WAS NEVER IMPLEMENTED AND IN THE BUILDING PERMISSION PL AN NOT A SINGLE BUILDING HAS EXCEEDED THE PRESCRIBED LIMIT OF 1500 SQ.FT. COULD NOT BE CONTROVERTED BY THE REVENUE. TH E CERTIFICATE FROM THE MUNICIPAL COUNCIL CERTIFYING T HAT THE BUILDING WORK HAS BEEN DONE/CARRIED IN ACCORDANCE W ITH THE BUILDING PERMISSION AS GRANTED BY THE BHUSAWAL MUNICIPAL COUNCIL ALSO COULD NOT BE CONTROVERTED BY THE LD. DEPARTMENTAL REPRESENTATIVE. UNDER THESE CIRCUMSTAN CES, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) ON THIS ISSUE. IN THIS VIEW OF THE MATTER, WE ARE OF THE CONSIDERE D OPINION THAT THE CIT(A) WAS FULLY AND LEGALLY JUSTIFIED IN ALLOWING THE CLAIM OF DEDUCTION U/S.80IB(10) AND THE GROUND RAISED BY THE REVENUE IS ACCORDINGLY DISMISSED. 6. BEFORE US, REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER YEARS HAS BEEN SET ASIDE BY HIGHER JUDICIAL AUTHORITIES NOR HAS POINTED ANY DISTINGUISHING FEATURE IN THE FACTS OF THE CASE UNDER CONSIDERATION AND THAT OF EARLIER YEARS. WE FURTHER FIND THA T LD. 22 ITA NO.1543/PUN/2014 AY.NO.2010-11 CIT(A) BY A WELL REASONED ORDER AND AFTER CONSIDERING ALL T HE ASPECTS HAD DECIDED THE ISSUE IN FAVOUR OF ASSESSEE. WE THEREFORE FIND NO REASON TO INTERFERE WITH THE ORDER OF L D. CIT(A). THUS, THE GROUNDS OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED ON 30 TH DAY OF MARCH, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE; ! DATED : 30 TH MARCH, 2017. YAMINI ( ) *!+, -,! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. COMMISSIONER OF INCOME TAX-V, PUNE. COMMISSIONER OF INCOME TAX (A) VI, PUNE. #$% &&'(, * '(, / DR, ITAT, A PUNE; %+, - / GUARD FILE. ( / BY ORDER, // TRUE COPY // . /012 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.