M/s. G.K.Builders, Pune V. ITO, Ward 8(3), Pune, Pune

ITA 158/PUN/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85069 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 30-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 158/PN/2012 (ASSESSMENT YEAR 2007-08) M/S. G.K. BUILDERS, DWARKADHEESH RESIDENCY, PIMPLE SAUDAGAR, PIMPRI, PUNE 411027 .. APPELLANT PAN NO.AAFFG2362M VS. ITO, WARD-8(3), PUNE .. RESPONDENT ASSESSEE BY : SHRI NIKHIL PATHAK REVENUE BY : SHRI P.S. NAIK DATE OF HEARING : 09-10-2014 DATE OF PRONOUNCEMENT : 10-10-2014 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 22-11-2011 OF THE CIT(A)-V, PUNE RELATING TO ASSESSMENT YEAR 2007-08. 2. THIS APPEAL WAS EARLIER DISMISSED BY THE TRIBUNA L FOR NON- PROSECUTION. SUBSEQUENTLY, THE TRIBUNAL VIDE M.A. NO.70/PN/2014 ORDER DATED 04-07-14 RECALLED THE ORDER. THEREFORE , THIS IS A RECALLED MATTER. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF LAND, CONSTRUCTION OF BUILDING ETC. IT 2 FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSM ENT YEAR ON 26-10- 2007 DECLARING TOTAL INCOME OF RS.6,30,360/- AFTER CLAIMING DEDUCTION OF RS.2,68,78,813 U/S.80IB(10) OF THE INCOME TAX AC T. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTED THAT THE ASSESSEE HAS UNDERTAKEN THE FOLLOWING PROJECTS : I. DWARKADHEESH RESIDENCY II. ROSE LAND III. QUEENS PARK IV. SAI PARADISE & V. SAI HERITAGE 3.1 HE FURTHER NOTED THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB(10) FROM THE PROJECTS NAMELY (A) DWARKADHE ESH RESIDENCY AND (B) ROSE LAND. THE ASSESSEE, HOWEVER, HAS NOT CLAIMED ANY DEDUCTION U/S.80IB(10) IN RESPECT OF THE REMAINING 3 PROJECTS. ON BEING QUESTIONED BY THE AO TO JUSTIFY THE CLAIM OF DEDUCTION, IT WAS SUBMITTED THAT THE CLAIM OF DEDUCTION U/S.80IB(10) IN RESPECT OF ITS PROJECT DWARKADHEESH RESIDENCY WAS DISALLOWED BY THE DEPARTMENT IN THE EARLIER YEARS AND THE ASSESSEE FOR THE FIRST TIME HAS CLAIMED DEDUCTION U/S.80IB(10) IN RESPECT OF THE PROJECT RO SE LAND. SO FAR AS THE PROJECT ROSE LAND IS CONCERNED, THE AO FOUN D THAT THE ASSESSEE FULFILLS ALL THE CONDITIONS PRESCRIBED U/S.80IB(10) . HE THEREFORE ALLOWED THE CLAIM OF DEDUCTION IN RESPECT OF THE PROJECT R OSE LAND. SO FAR AS THE CLAIM OF DEDUCTION IN RESPECT OF THE PROJECT D WARKADHEESH RESIDENCY IS CONCERNED, THE AO, FOLLOWING THE ORDE R OF HIS PREDECESSOR FOR A.YRS. 2005-06 AND 2006-07 DISALLOW ED THE CLAIM OF DEDUCTION ON THE GROUND THAT THE SAID PROJECT INCLU DED COMMERCIAL AREA AND SINCE THE PROJECT WAS STARTED PRIOR TO 01-04-20 05, THEREFORE, THE 3 ASSESSEE IS NOT ENTITLED TO CLAIM THE DEDUCTION. F URTHER, CERTAIN FLATS EXCEED THE AREA OF 1500 SQ.FT. 4. IN APPEAL THE LD.CIT(A) UPHELD THE ACTION OF THE AO IN DENYING THE BENEFIT OF DEDUCTION U/S.80IB(10) IN RESPECT OF THE PROJECT DWARKADHEESH RESIDENCY BY FOLLOWING THE ORDER OF HIS PREDECESSOR FOR THE A.YRS. 2005-06 AND 2006-07. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSE SSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : THE FOLLOWING GROUNDS ARE TAKEN WITHOUT PREJUDICE T O EACH OTHER ON FACTS AND IN LAW, 1. THE LEARNED CIT(A) ERRED IN CONFIRMING THE DISA LLOWANCE OF DEDUCTION U/S 80IB(10) OF RS 1,93,70,422/- IN RESPECT OF THE PROFITS OF THE PROJECT 'DWARAKADHEESH RESIDENCY'.. 2. THE LEARNED CIT(A) ERRED IN HOLDING THAT - A. THE BUILT UP AREA OF ROW HOUSE NO. 36 EXCEEDED 1 500 SQ.FT. AND THEREFORE, THE ASSESSEE WAS NOT ENTITLED TO CLAIM THE DE DUCTION U/S 80IB(10). B. THE DEFINITION OF BUILT UP AREA GIVEN IN SECTION 80IB(14)(A) WAS APPLICABLE TO THE PROJECT CONSTRUCTED BY THE ASSESSEE AN D AS PER WHICH THE BUILT UP AREA OF ROW HOUSE NO. 36 EXCEEDED 1500 SQ.FT. AND HENCE, THE DEDUCTION U/S 801B(10) WAS NOT ALLOWABLE TO THE A SSESSEE. C. THE AREA OF THE CANOPY WAS TO BE CONSIDERED AS A T ERRACE AND OUGHT TO HAVE BEEN INCLUDED IN THE TOTAL BUILT UP AREA OF THE UNIT. D. AS PER THE DEFINITION OF BUILT UP AREA GIVEN IN SE CTION 80IB(14)(A), THE AREA COVERED BY THE TERRACE WAS TO BE INCLUDED IN TH E TOTAL BUILT UP AREA. 3. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE DEFINITION OF BUILT UP AREA GIVEN IN SECTION 80IB(14)(A) WAS APPLIC ABLE ONLY TO THE PROJECTS STARTED AFTER THE INSERTION OF THE AMENDMENT AND SINCE THE ASSESSEE HAD COMMENCED THE PROJECT MUCH PRIOR TO THE IN SERTION OF THE AMENDMENT, THE BUILT UP AREA OF THE UNITS OUGHT TO H AVE BEEN CONSIDERED AS PER THE MEANING UNDERSTOOD BY THE SANCTIO NING AUTHORITY, I.E. PIMPRI CHINCHWAD MUNICIPAL CORPORAT ION. 4 4. THE LEARNED CIT (A) FAILED TO APPRECIATE THA T THE LIMIT OF COMMERCIAL AREA IS NOT APPLICABLE TO THE PROJECT DWA RKADHEESH AS THE SAID PROJECT WAS COMMENCED PRIOR TO THE AMENDMENT REST RICTING THE COMMERCIAL AREA UPTO 2000 SQ. FT. 5. THE LEARNED CIT (A) FAILED TO APPRECIATE THAT ONCE THE UNIT IS SOLD TO ANY CUSTOMER THAN THE ASSESSEE HAS NO CONTROL OVER THE CU STOMER AND IT IS IRRELEVANT THE PURPOSE FOR WHICH THE UNIT IS BEING USED. 6. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE A REA OF THE CANOPY WAS INCLUDIBLE IN THE BUILT UP AREA OF THE UNIT AS IT WA S NOTHING BUT A PROJECTION OR A BALCONY OF THE SAID UNIT. 6A. THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE CANOPY WAS NEITHER A TERRACE NOR A BALCONY AND IT WAS NOT INCLU DIBLE IN THE BUILT UP AREA OF THE UNIT. 7. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSESSE E SUBMITS THAT ASSUMING WITHOUT ADMITTING THAT THE BUILT UP AREA OF THE UNITS WAS TO BE COMPUTED AS PER THE DEFINITION IN SECTION 80IB(14)(A) , STILL THE AREA COVERED BY THE CANOPY WAS TO BE EXCLUDED AND AFTER E XCLUDING THIS AREA, THE BUILT UP AREA OF ALL THE UNITS WAS LESS THAN 1500 SQ .FT. 8. WITHOUT PREJUDICE, THE LEARNED CIT(A) ERRED IN NOT ALLOWING THE DEDUCTION U/S 80IB(10) IN RESPECT OF THE PROFITS OF TH E BALANCE PROJECT I.E. THE REMAINING PROJECT AFTER EXCLUDING THE UNIT S OF THE BUILT UP AREA EXCEEDING 1500 SQ.FT. 9. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 6. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET F ILED A COPY OF THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A. YRS. 2005-06 AND 2006-07 VIDE ITA NOS. 1077 & 1078/PN/2010 ORDER DAT ED 30-07-2012 AND SUBMITTED THAT THE TRIBUNAL HAS DECIDED BOTH TH E ISSUES IN FAVOUR OF THE ASSESSEE AND ALLOWED THE CLAIM OF DEDUCTION U/S .80IB(10) IN RESPECT OF THE PROJECT DWARKADHEESH RESIDENCY. SINCE THE AO AND THE CIT(A) HAVE DENIED THE CLAIM OF DEDUCTION U/S.80IB(10) IN RESPECT OF THE AFOREMENTIONED PROJECT BY FOLLOWING THE ORDERS FOR THE PRECEDING YEARS AND SINCE THE TRIBUNAL HAS ALREADY DECIDED THE ISSU E IN FAVOUR OF THE ASSESSEE, THEREFORE, THIS IS A COVERED MATTER IN FA VOUR OF THE ASSESSEE. HE ACCORDINGLY SUBMITTED THAT THE DEDUCTION CLAIMED U/ S.80IB(10) IN RESPECT 5 OF THE PROJECT DWARKADHEESH RESIDENCY SHOULD BE A LLOWED. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND WHILE SUPPORTING THE ORDER OF THE CIT(A) FAIRLY CONCEDED THAT THE ISSUE STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE DECISION O F THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE IMMEDIATELY PRECEDING T WO ASSESSMENT YEARS. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE FIND THE AO DISALLOWED THE CLAIM OF DEDUCTION U/S.80IB(10) ON TWO ISSUES, I.E., (A) THE BUILT UP AREA OF ONE OF THE ROW HOUSE HAS EXCEEDED 1500 SQ.FT. AND (B) THE SAID PRO JECT INCLUDES COMMERCIAL AREA. WE FIND THE LD.CIT(A) UPHELD THE ORDER OF THE AO. SO FAR AS THE FIRST ISSUE I.E., THE BUILT UP AREA OF R OW HOUSE NO.36 EXCEEDED 1500 SQ.FT. AND THEREFORE THE ASSESSEE WAS NOT ENTI TLED TO CLAIM DEDUCTION U/S.80IB(10) IS CONCERNED, WE FIND THE TRIBUNAL IN ASSESSEES OWN CASE WHILE DECIDING APPEAL FOR A.YRS. 2005-06 AND 2006-0 7 ORDER DATED 30-07- 2012 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSE E BY OBSERVING AS UNDER: 5. AFTER GOING THROUGH THE ABOVE SUBMISSIONS AND MATE RIAL ON RECORD, WE ARE NOT INCLINED TO CONCUR WITH THE FIND ING OF THE CIT(A). THE DEDUCTION UNDER QUESTION HAS BEEN REJECTED BY THE A.O . AND CONFIRMED BY THE CIT(A) ON THE GROUND THAT IT EXCEEDED THE PR ESCRIBED LIMIT WITH RESPECT TO ROW HOUSE NO.36. ACCORDINGLY, THE WHOLE P ROJECT WAS REJECTED. THE A.O. HAS REACHED TO THE CONCLUSION AFTE R INCLUDING THE TERRACE AREA OF 108 SQ.FT. IN BRAHMA BUILDERS (SUPRA) , WHETHER THE TERRACE IN BUILT UP AREA COMES ONLY W.E.F. 01.04.200 5 BECAUSE THE DECISION IS INTRODUCTION IN THE SECTION W.E.F. THE SAID DATE. FOR THE PERIOD PRIOR TO 01.04.2005, NO SUCH DEFINITION WAS ON THE STA TUTE AND HENCE, THE BUILT UP AREA HAS TO BE CONSIDERED AS PER THE DC RULE OF THE SANCTIONING AUTHORITY. THE DC RULES DO NOT INCLUDE TE RRACE IN THE BUILT UP AREA. SO THE AMENDMENT WHICH HAS COME IN THIS REGA RD W.E.F. 01.04.2005 WILL NOT AFFECT THE PROJECTS WHICH HAVE C OMMENCEMENT PRIOR TO 01.04.2005. THIS ISSUE HAS BEEN DECIDED FOLLOW ING TUSHAR DEVELOPERS IN ITA.NO.165/PN/2007 AND 94/PN/200 7 IN FAVOUR 6 OF ASSESSEE AND IN HAWARE CONSTRUCTIONS (P) LTD. SIMILAR V IEW HAS BEEN TAKEN WHEREBY IT WAS HELD THAT TUSHAR DEVELOPERS IS NOT INCLUDIBLE IN BUILT UP AREA OF THE FLAT PRIOR TO 01.04.2005 AND H ENCE FOR THE PROJECT COMMENCED BEFORE 01.04.2005, TERRACE IS NOT INCLUDIB LE IN THE BUILT UP AREA. IN VIEW OF THIS, ASSESSEE IS ENTITLED FOR DEDUCT ION U/S.80IB(10) AS CLAIMED. 8.1 SO FAR AS THE ISSUE RELATING TO COMMERCIAL AREA INCLUDED IN THE PROJECT IS CONCERNED, WE FIND THE TRIBUNAL IN THE O RDER FOR A.Y. 2006-07 HAS ALSO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSE E BY OBSERVING AS UNDER : 7. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE ON TWO ISSU ES, ONE IS REJECTION OF ASSESSEE'S CLAIM U/S.80IB(10) WHEN BUILT UP AREA OF ROW HOUSE NO.36 EXCEEDED 1500 SQ.FT. AND SECOND ISSUE HAS BEE N RAISED BY WAY OF ADDITIONAL GROUND WHEREIN CLAIM OF ASSESSEE HAS BEEN REJECTED ON THE GROUND OF INCLUSION OF COMMERCIAL AREA, IN VI EW OF THE AMENDMENT TO THE PROVISIONS OF SECTION 80IB(10). THE I SSUE OF DISALLOWANCE OF DEDUCTION U/S.80IB(10) ON THE GROUND THAT BUILT UP AREA OF THE ROW HOUSE NO.36 EXCEEDED 1500 SQ.FT. THI S ISSUE HAS BEEN DISCUSSED AND DECIDED IN ITA.NO.1077/PN/2010. THE FACT S BEING SIMILAR INCLUDING THE PROJECT IS SAME, SO THIS IS FALLING IN THE SAME ANALOGY, ASSESSEE IS ENTITLED FOR DEDUCTION U/S.80IB(10) AS CLAIMED. 8. COMING TO THE SECOND ISSUE RAISED IN A.Y. 2006-07 W ITH REGARD TO REJECTION OF THE ASSESSEE'S CLAIM ON THE POINT OF COM MERCIAL AREA. IN THIS REGARD OUR ATTENTION WAS DRAWN TO PAGE 3 PARA 6 OF THE ORDER OF THE CIT(A) WHEREIN IT HAS BEEN OBSERVED AS UNDER: '6. I HAVE GIVEN CAREFUL CONSIDERATION TO THE CONTE NTS OF THE ASSESSMENT ORDER, THE STATEMENT OF FACTS SUBMITTED BY THE APPELLANT, AND THE DETAILED WRITTEN AND ORAL SUBMISSIONS MADE BY THE LEARNED AR OF THE APPELLANT. THE SAME GROUND OF APPEAL HAD BEE N RAISED BY THE APPELLANT IN THEIR APPEAL FOR A.Y. 2005-06. FURTHER , THE RELEVANT FACTS AS WELL AS THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT WERE ALONG THE SAME LINES FOR THAT YEAR TOO. IN MY APPELLATE ORDER F OR THAT YEAR, I HAVE DISCUSSED THE FACTUAL POSITION OBTAINING IN THE APPELLA NT'S CASE, AS WELL AS THE LEGAL REQUIREMENTS FOR CLAIMING DEDUCTION UNDE R THE SAID PROVISION IN CONSIDERABLE DETAIL BEFORE CONFIRMING T HE DISALLOWANCE OF DEDUCTION UNDER SECTION 80IB(10). I DO NOT CONSIDER I T NECESSARY TO REPRODUCE EVERYTHING THAT HAS BEEN SAID IN THAT APPEL LATE ORDER, BUT RELY UPON MY DECISION IN THAT ORDER TO CONFIRM THE D ISALLOWANCE OF DEDUCTION UNDER SECTION 80IB(10) TO THE APPELLANT FO R THE A.Y. IN QUESTION UNDER THIS APPEAL TOO.' 9. THE A.O. AS WELL AS THE CIT(A) HAS REJECTED THE CL AIM OF THE ASSESSEE ON THE POINT OF COMMERCIAL ISSUE. IT IS STRANGE T O NOTE THAT THE A.O. AS WELL AS THE CIT(A) HAS HELD THAT FOLLOWING A.Y . 2005-06 THIS ISSUE IS BEING DECIDED AGAINST THE ASSESSEE. BUT THERE WAS NO D ISCUSSION IN A.Y. 2005-06 WITH REGARD TO THE DISALLOWANCE OF SECTI ON 80IB(10) ON THE POINT OF COMMERCIAL ISSUE. IN THIS REGARD, THE LD. AUT HORISED 7 REPRESENTATIVE DREW OUR ATTENTION TO THE STATEMENT OF FACTS FILED BEFORE THE CIT(A) WHEREIN AT PAGE 2, THE ASSESSEE HAS SUBMITTED AS UNDER: 'ACCORDING TO LEARNED ASSESSING OFFICER THE PROJECT IS N OT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE I.T. ACT AS T HE PROJECT CONSISTED OF SHOPS ADMEASURING ABOUT 120.07 SQUARE METERS. THE FIN ANCE (NO.2) ACT 2004 HAS SUBSTITUTED SECTION 80IB(10) AND ACCORDING TO SUBSTITUTED SECTION HOUSING PROJECT MEANS A PROJECT IN WHICH THE B UILT UP AREA OF SHOPS OR OTHER COMMERCIAL ESTABLISHMENT INCLUDED IN HOU SING PROJECT DOES NOT EXCEED 5% OF THE AGGREGATE BUILT UP AREA OR TWO THOUSAND SQUARE FEET WHICHEVER IS LESS. THE LEARNED ASSESSING OFFICE R STATED THAT THE CLAIM OF DEDUCTION OF THE APPELLANT WAS REJECTED BY HIS PREDECESSOR ON THIS GROUND IN THE ASSESSMENT YEAR 2005-06. THIS IS FAC TUALLY A WRONG/INCORRECT STATEMENT. THE APPELLANT BROUGHT TO THE NOTICE OF THE APPELLANT THAT THERE IS NOT EVEN A WHISPER IN THE ASSESSM ENT ORDER ON THIS POINT FOR THE ASSESSMENT YEAR 2005-06. AS FAR AS TH E DISALLOWANCE OF DEDUCTION ON THE GROUND OF SHOPS OR COMMERCIAL ARE A, THE LEARNED ASSESSING OFFICER PASSED REMARK IN THE BEGINNING OF THE ASSESSMENT ORDER. THERE IS NOT A SINGLE REFERENCE IN RESPECT OF T HE SAME.' IN THIS BACKGROUND IT WAS SUBMITTED THAT INSPITE OF THI S, CIT(A) HAS NOT ADJUDICATED THE ISSUE. SINCE THIS ISSUE WAS RAISED BEFORE THE CIT(A) EVEN IF IT IS NOT MENTIONED IN THE ORDER OF THE CIT(A), I T IS PRESUMED THAT THE SAID GROUND RAISED SPECIFICALLY MENTIONED IN THE STATEM ENT OF FACTS AS DISCUSSED ABOVE, IT AMOUNTS TO DISMISSAL AS HELD IN SINDHIA 142 ITR 589. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE SA ME RATIO OF SINDHIA HAS BEEN FOLLOWED IN 98 TTJ 506 WHEREIN IT W AS SUBMITTED THAT IN CASE CIT(A) FAILED TO DEAL THE ISSUE RAISED AMOUNTS TO DISMISSAL AND ITAT MAY ADJUDICATE THE SAME. IN THIS REGARD THE LD.A R DREW OUR ATTENTION TO PARA 7, 7.1 AND 7.2 WHEREIN ISSUE OF DED UCTION U/S.80IB(10) ON THE POINT OF COMMERCIAL AREA HAS BEEN DISCUSSED AND DECIDED AS ABOVE. SO THIS ISSUE SHOULD BE DECIDED IN FAVOUR OF TH E ASSESSEE. ON OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE SUBMI TTED THAT YEAR UNDER CONSIDERATION IS 2006-07 WHICH IS SUBSEQUENT TO TH E AMENDMENT SO ASSESSEE IS NOT ENTITLED FOR DEDUCTION IN VIEW OF THE AMENDMENT. 10. AFTER GOING THROUGH THE ABOVE SUBMISSIONS AND MATE RIAL ON RECORD, WE FIND THAT PROJECT CONSISTS OF COMMERCIAL O PERATION. STAND OF THE ASSESSEE HAS BEEN THAT DEDUCTION IS HELD IN RESPECT OF THE HOUSE PROJECT AND NOT A COMMERCIAL PROJECT. THIS ISSUE HAS BE EN DECIDED BY BOMBAY HIGH COURT IN THE CASE OF BRAHMA BUILDERS REPO RTED IN 333 ITR 289 WHEREIN IT HAS BEEN HELD THAT WHETHER A PROJECT IS HAVING A COMMERCIAL AREA, IT DOES NOT MEAN THAT IT IS NOT HOUSI NG PROJECT. SECONDLY, IT WAS POINTED OUT ON BEHALF OF THE ASSESSEE T HAT THE PROJECT HAS COMMENCED MUCH BEFORE 01.04.2005 FROM WHICH DATE SUB-CLAUSE (D) OF SECTION 80IB(10) WAS INTRODUCED. THE COMMENCEM ENT CERTIFICATE IS NOT A SUBJECT MATTER OF THE DISPUTE AS DISCUSSED ABOVE . THE ASSESSEE HAD NO OCCASION TO COMPLY WITH THE NEW CONDITION INT RODUCED W.E.F. 01.04.2005 THAT COMMERCIAL OPERATION SHOULD NOT EXCE ED 2000 SQ.FT. AND HENCE DOES NOT APPLICABLE IN RESPECT TO THE PROJ ECTS WHICH HAVE COMMENCEMENT BEFORE TO 01.04.2005. THIS POSITION IS SUP PORTED BY DECISIONS REPORTED BY ITAT IN OPEL SHELTERS PVT. LTD. AND D.S.KULKARNI DEVELOPERS IN ITA.NO.219/PN/2009 AND 73/PN/2003 FOR A.Y. 2005-06 DATED 31.05.2010. FOLLOWING THE SAME REASONING, WE AR E NOT INCLINED TO CONCUR WITH THE FINDING OF THE CIT(A). THE A.O. AS W ELL AS THE CIT(A) WERE NOT JUSTIFIED IN DISALLOWING THE DEDUCTION U/S.80 IB(10) ON THE 8 GROUND THAT PROJECT DWARAKADEESH CONSTRUCTED BY THE ASSESSEE INCLUDED COMMERCIAL AREA AND SINCE PROJECT WAS COMMEN CED PRIOR TO 01.04.2005, THE ASSESSEE WAS NOT ENTITLED FOR DEDUCTION. THE A.O. FAILED TO APPRECIATE THAT THE HOUSING PROJECT OF THE ASSESSEE HAS STARTED IN F.Y. 2003-04 AND THEREFORE IS NOT COMMERCIAL OPERATION IN CLUDIBLE IN HOUSING PROJECTS HENCE THERE IS NO JUSTIFICATION FOR DE NYING DEDUCTION U/S.80IB(10). THE A.O. IS DIRECTED ACCORDINGLY. 8.2 SINCE THE ISSUES ON WHICH THE DEDUCTION U/S.80I B(10) WAS DENIED TO THE ASSESSEE HAS BEEN DECIDED IN FAVOUR OF THE A SSESSEE BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YRS. 2005-06 AND 2006-07, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE TRIBUNAL, WE HOLD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S.80IB (10) FOR THE IMPUGNED ASSESSMENT YEAR ALSO. ACCORDINGLY, THE ORDER OF THE CIT(A) IS SET-ASIDE AND THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE CLAIM OF DEDUCTION U/S.80IB(10) MADE BY THE ASSESSEE. THE GROUNDS RAI SED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 10-10-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEM BER PUNE DATED: 10 TH OCTOBER, 2014 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-V, PUNE 4. THE CIT-V, PUNE 5. THE D.R, B PUNE BENCH 6. 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