ACIT, Pune V. Kulkarnii Construction Pvt Ltd., Pune

ITA 1674/PUN/2012

• Counselvise Citation: 167424514 RSA 2012
• Duration Of Justice: 1 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNITA RAO
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Opportunity of being heard
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO.1674/PN/2012 (A.Y: 2008-09) ACIT, CIRCLE 11(1), PUNE APPELLANT VS. KULKARNI CONSTRUCTIONS PVT. LTD., 529/3, PARVATI, SINHAGAD ROAD, PUNE 411030. PAN: AACK0614N RESPONDENT APPELLANT BY : SMT. SUNITA RAO RESPONDENT BY : SHRI SUNI L PATHAK DATE OF HEARING: 18.06.2014 DATE OF ORDER : 30.06.2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-I, [IN SHORT CIT(A)] PUNE, DATED 30.01.2012 FOR A.Y. 2008-09 ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A)-I, PUNE HAS ERRED IN DELETI NG THE DISALLOWANCES ON ACCOUNT OF DEDUCTION U/S.80IB(10) OF THE I.T.ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED CIT(A)-I, PUNE HAS ERR ED IN NOT CONSIDERING THE FACT THAT IN THE PROJECT SUVARNA PA RK AT BAVDHAN, THE ADDITIONAL 4 & 1/2 FLATS WERE CONSTRUC TED BEYOND 82 FLATS WHICH WAS NOT REFLECTED IN THE ORIG INAL SANCTIONED PLAN ON HOUSING PROJECT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE I N LAW, THE LEARNED CIT(A)-I, PUNE HAS ERRED IN NOT CONSIDE RING THE FACT THAT THE GOVERNMENT APPROVED VALUER REPORTED T HAT 2 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. COMBINED AREA OF FLAT NO. B-5 & B-6 EXCEEDS 1,500 S Q.FT. BESIDES THE STATEMENT OF THE OWNER OF FLAT NO. B-5 & B-6 MAKES IT CLEAR THAT THESE FLATS WERE COMBINED BEFOR E THE SAME WERE HANDED OVER BY THE ASSESSEE. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS ) ERRED IN NOT CONSIDERING THE FACT THAT THE PROJECT UNDER REVIEW WAS REQUIRED TO BE COMPLETED BEFORE 31-03-20 08. HOWEVER, THE PROJECT WAS ACTUALLY COMPLETED AFTER 3 1-03- 2008 AS THE FINAL COMPLETION CERTIFICATE WAS ISSUED BY THE PUNE MUNICIPAL CORPORATION ON 07-11-2008 IN RESPONS E TO THE APPLICATION MADE BY THE ASSESSEE ON 04-11-20 08. 5. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) MAY BE VACATED AND THA T OF THE ASSESSING OFFICER BE RESTORED. 6. THE APPELLANT CRAVES TO ADD, AMEND, ALTER OR DELETE ANY OF THE ABOVE GROUND OF APPEAL DURING THE COURSE OF APP ELLATE PROCEEDINGS BEFORE THE HON'BLE TRIBUNAL. 2. THE ASSESSING OFFICER HAS ASSESSED THE TOTAL INC OME AT 6,38,73,230/- AS AGAINST THE RETURNED INCOME OF 1,37,15,580/- BY DISALLOWING THE DEDUCTION CLAIMED U/S.80IB(10) O F I.T. ACT OF 5,01,56,109/-. 3. THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AU THORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE AND HAVING CONSIDERED THE SAME, THE CIT(A) HAS GRAN TED RELIEF TO THE ASSESSEE. THE SAME HAS BEEN OPPOSED BEFORE US ON BEHALF OF REVENUE, INTER ALIA, SUBMITTED THAT THE CIT(A) ERRE D IN NOT CONSIDERING THE FACT THAT IN THE PROJECT SUVARNA PA RK AT BAVDHAN, THE ADDITIONAL 4 & 1/2 FLATS WERE CONSTRUC TED BEYOND 82 FLATS WHICH WAS NOT REFLECTED IN THE ORIGINAL SA NCTIONED PLAN ON HOUSING PROJECT. THE CIT(A) ERRED IN NOT CONSID ERING THE FACT THAT THE GOVERNMENT APPROVED VALUER REPORTED THAT C OMBINED AREA OF FLAT NO. B-5 & B-6 EXCEEDS 1,500 SQ.FT. BES IDES THE STATEMENT OF THE OWNER OF FLAT NO. B-5 & B-6 MAKES IT CLEAR THAT 3 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. THESE FLATS WERE COMBINED BEFORE THE SAME WERE HAND ED OVER BY THE ASSESSEE. HE ALSO ERRED IN NOT CONSIDERING THE FACT THAT THE PROJECT UNDER REVIEW WAS REQUIRED TO BE COMPLETED B EFORE 31-03- 2008. HOWEVER, THE PROJECT WAS ACTUALLY COMPLETED AFTER 31-03- 2008 AS THE FINAL COMPLETION CERTIFICATE WAS ISSUED BY THE PUNE MUNICIPAL CORPORATION ON 07-11-2008 IN RESPONSE TO THE APPLICATION MADE BY THE ASSESSEE ON 04-11-2008. AC CORDINGLY, THE ORDER OF CIT(A) BE SET ASIDE AND THAT OF ASSESS ING OFFICER BE RESTORED. ON THE OTHER HAND, THE LEARNED AUTHORIZE D REPRESENTATIVE HAS SUBMITTED THAT THE ASSESSEE WAS ENTITLED FOR DEDUCTION U/S.80IB(10) OF THE ACT IN RESPECT OF PRO JECT AT BAVDHAN UNDER THE NAME AND STYLE OF SUVARNA PARK WHICH WAS UNDERTAKEN IN A.Y. 2004-05 AND COMPLETED THE PROJEC T IN A.Y. 2008-09. THE ASSESSEE HAS COMPLIED WITH THE FOLLOW ING CONDITIONS PRESCRIBED U/S.80IB(10) OF THE ACT FOR C LAIMING DEDUCTION OF 100% OF PROFIT AS EXEMPT FROM THE TAX. A) THE PROJECT HAS BEEN APPROVED BY A LOCAL AUTHORITY BEFORE 31.03.2007. THE CONSTRUCTION WORK COMMENCED O N 20.11.2003, AS PER 1 ST COMMENCEMENT CERTIFICATE NO.2363 ISSUED BY PUNE MUNICIPAL CORPORATION. B) THE SIZE OF THE PLOT IS 64584 SQ.FTS. WHICH IS MORE THAN PRESCRIBED LIMIT OF MINIMUM ONE ACRE, C) THE ASSESSEE COMMENCED DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON 20.11.2003 I.E WELL AFTER PRESCRIBED DATE AFTER 30.09.1998. THE PROJECT HAVE BEEN COMPLETED ON 31.03.2008 I.E. WITHIN A PERIOD OF FOU R YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE H OUSING PROJECT WAS FIRST APPROVED. D) THE HOUSING PROJECT DOES NOT INCLUDE SHOPS AND COMMERCIAL ESTABLISHMENTS BUT ONLY RESIDENTIAL FLAT S ONLY. E) MAXIMUM BUILT UP AREA OF EACH OF 82 FLATS IS LESS T HAN 1500 SQ.FTS. FOR THAT, HE RAISED VARIOUS CONTENTIONS ON BEHALF O F ASSESSEE BEFORE AUTHORITIES BELOW. AS STATED ABOVE , THE PROJECT 4 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. WITH 82 FLATS WAS SANCTIONED AND COMMENCED VIDE COMMENCEMENT CERTIFICATE NO.2363 DT.20.11.2003 HAS BEEN COMPLETED IN DUE PERIOD AS PER COMPLETION CERTIFICA TE ISSUED BY ARCHITECTURE AND OCCUPANCY CERTIFICATE ISSUED BY TH E PUNE MUNICIPAL CORPORATION. THE ADDITIONAL 4 FLATS HAVE BEEN SANCTIONED UNDER DIFFERENT WORK BY PURCHASING ADDIT IONAL TDR TO THE EXTENT OF 460 SQ. MTRS. WHICH COULD NOT BE CONF USED WITH EARLIER SANCTION FLATS IN RESPECT OF WHICH CLAIM IN QUESTION COMPLETED WITHIN PRESCRIBED TIME. FLAT NO.B5 AND B 6 ARE DIFFERENT AND SEPARATE FLATS AND HAVE BEEN SOLD AND COMBINED AREA IS OF BOTH IS LESS THAN THE PRESCRIBED LIMIT I .E. 1475.54 SQ.FT. THE SAID MEASUREMENT IS AFTER EXCLUDING TERRACE. S O ORDER OF CIT(A) BE UPHELD. 4. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MA TERIAL ON RECORD, WE FIND THAT THE ASSESSEE IS ENGAGED IN CON STRUCTION BUSINESS. THE ASSESSEE HAS CONSTRUCTED HOUSING PRO JECT UNDER THE NAME AND STYLE OF SUVARNA PARK AT BAVDHAN, PU NE IN RESPECT OF WHICH, HE CLAIMED DEDUCTION U/S.80IB(10) OF THE ACT, WHICH WAS DISALLOWED BY THE ASSESSING OFFICER. IT IS UND ISPUTED THAT THE SAID CONSTRUCTION IS ON PLOT AREA OF 64584 SQ.F T. I.E. MORE THAN ONE ACRE. ORIGINAL COMMENCEMENT CERTIFICATE W AS OBTAINED ON 20.11.2003 AND THE SAME WAS FURTHER REVISED ON 3 0.03.2007. AS PER ORIGINAL SANCTIONED PLAN, THE SAID PROJECT C ONSISTS OF 4 BUILDINGS WITH TOTAL 82 FLATS AND DETAILS OF THE SA ME ARE AS UNDER: BUILDING A - 20 FLATS BUILDING B - 24 FLATS BUILDING C - 24 FLATS BUILDING E - 14 FLATS 4.1 THE DETAILS OF THE OCCUPANCY CERTIFICATE OBTAIN ED BY THE ASSESSEE IN RESPECT OF THE ABOVE FLATS ARE AS UNDER : 5 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. I. BUILDING B, C & E (TOTAL 62 FLATS) 21.07.2007. A COPY OF THE SAME HAS BEEN PLACED AT PAGE 28 OF PAPER BOO K FILED BY THE ASSESSEE, WHICH IS NOT IN DISPUTE. II. SECOND OCCUPANCY CERTIFICATE IN RESPECT OF BUILDING A (16 OUT OF 20 FLATS) WAS OBTAINED ON 31.03.2008 AS DETAILED AT PAGE 29 OF THE PAPER BOOK FILED BY THE ASSESSEE AND NOT DISPUTED BY THE REVENUE. III. THE OCCUPANCY CERTIFICATE IN RESPECT OF BUILDING A WITH REGARD TO 4 FLATS OUT OF 20 FLATS WAS OBTAINED ON 07.11.2008 AS DETAILED AT PAGE 30 OF THE PAPER BOOK FILED BY THE ASSESSEE. 4.2 THEREAFTER, THE ASSESSEE ACQUIRED ADDITIONAL TD R ON 12.07.2010 AS DETAILED AT PAGE 36 OF THE PAPER BOOK FILED BY THE ASSESSEE. THE ASSESSEE UTILISED THE SAID ADDITIONAL TDR FOR CONSTRUCTION OF ADDITIONAL FOUR FLATS IN BUILDING ' A', NAMELY 503 - 504 & 603 - 604. THE COMMENCEMENT CERTIFICAT E FOR THESE FOUR FLATS WAS OBTAINED SEPARATELY ON 28.12.2010 AS DETAILED AT PAGE 26 OF PAPER OF BOOK FILED BY THE ASSESSEE AND THE COPY OF THE REVISED BUILDING PLAN DATED 28.12.2010 FOR BUILDING 'A' IS PLACED ON PAGE 27 OF THE PAPER BOOK FILED BY THE ASSESSEE. THE STAND OF THE ASSESSEE HAS BEEN THAT THESE FOUR FLATS ARE NOT PART OF HOUSING PROJECT IN QUESTION AND FOR THE PURPOSE OF SECTION 80IB(10) OF THE ACT, THE PROJECT CONSISTS OF 82 FLA TS WHICH DO NOT INCLUDE THESE FOUR FLATS MADE IN BUILDING A AS DI SCUSSED ABOVE AT THE STRENGTH OF REVISED BUILDING PLAN DT. 28.12. 2010 AS DISCUSSED ABOVE. 4.3 THE STAND OF THE ASSESSEE HAS BEEN THAT THE SAI D PROJECT CONSISTING OF 82 FLATS HAS SATISFIED ALL THE CONDIT IONS STIPULATED U/S.80IB(10) OF THE ACT. HENCE, IT WAS ELIGIBLE TO CLAIM DEDUCTION IN RESPECT OF ABOVE PROJECT. THE ASSESSING OFFICER HAS NOT APPRECIATED THIS CLAIM OF THE ASSESSEE AND HE HELD THAT THE DEDUCTION U/S.80IB(10) OF THE ACT IS NOT ALLOWABLE IN RESPECT OF PROFITS DERIVED FROM SUVARNA PARK ON THE FOLLOWIN G THREE GROUNDS. 6 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. A. THE ASSESSEE HAS CONSTRUCTED ADDITIONAL FOUR AND A HALF FLATS WHICH WERE NOT A PART OF THE PROJECT AS PER THE PLAN SANCTIONED BY PMC AND HENCE, THE HOUSING PROJECT IS NOT CONSTRUCTED AS PER THE APPROVED PLAN . B. THE COMPLETION CERTIFICATE IN RESPECT OF FOUR FLATS WAS OBTAINED AFTER 31.03.2008 AND THEREFORE, THE CONSTRUCTION OF THE SAID HOUSING PROJECT WAS NOT COMPLETED BEFORE THE STIPULATED TIME LIMIT PRESCRIB ED U/S 80IB(10) OF THE ACT. C. THE BUILT UP AREA OF TWO FLATS B-5 & B-6, WHICH WER E COMBINED INTO A SINGLE RESIDENTIAL UNIT EXCEEDED 15 00 SQ. FT. AND HENCE, THE ASSESSEE WAS NOT ELIGIBLE TO CLAIM DEDUCTION U/S 80IB(10) IN RESPECT OF THE ABOVE HOUS ING PROJECT. 4.4 THUS, THE ASSESSING OFFICER HAS DISALLOWED TH E DEDUCTION U/S 80IB(10) OF THE ACT CLAIMED BY THE ASSESSEE ON VARIOUS GROUNDS AND ACCORDINGLY, THE TOTAL INCOME OF THE AS SESSEE WAS ASSESSED AT 6,38,73,233/-. 4.5 WE FIND THAT ADDITIONAL FOUR AND A HALF FLATS A T THE STRENGTH OF ADDITIONAL TDR ARE BEYOND 82 FLATS WHICH WERE NO T REFLECTED IN THE ORIGINAL SANCTIONED PLAN AND THE ASSESSEE HAS N OT CLAIMED DEDUCTION U/S.80IB(10) OF THE ACT OVER AND ABOVE 82 FLATS. AS PER THE ORIGINAL SANCTIONED PLAN DATED 20.11.2003, THE 'SUVARANA PARK PROJECT' CONSISTED OF 82 FLATS. THE COMPLETION CERTIFICATES FOR THESE FLATS WERE OBTAINED IN THREE PHASES AND THE C OPIES OF THE SAME ARE PLACED ON PAGES 28, 29 & 30 OF THE PAPER B OOK AS DISCUSSED ABOVE. THEREAFTER, THE ASSESSEE ACQUIRED ADDITIONAL TDR ON 12.07.2010 AND CONSTRUCTED ADDITIONAL FOUR F LATS IN BUILDING 'A' OF THE SAID PROJECT OVER AND ABOVE THE CONSTRUCTION ALREADY COMPLETED. A COPY OF THE DEVELOPMENT RIGHT CERTIFICATE DATED 12.07.2010 IS PLACED ON PAGE 36 OF PAPER BOOK FILED BY THE ASSESSEE. THE COPY OF THE REVISED BUILDING PLAN DA TED 28.12.2010 ALONG WITH THE COMMENCEMENT CERTIFICATE IN RESPECT OF THESE ADDITIONAL FOUR UNITS IS ON PAGES 31-32 OF THE PAPE R BOOK FILED BY 7 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. THE ASSESSEE. THUS, THE ABOVE UNITS ADDITIONALLY C ONSTRUCTED AT THE STRENGTH OF TDR IN 2010 WERE NOT PART OF THE OR IGINALLY CONCEIVED HOUSING PROJECT OF THE ASSESSEE FOR THE P URPOSES OF SECTION 80IB(10) OF THE ACT. THE ORIGINAL PROJECT CONSISTING OF 82 FLATS AS PER THE PLAN SANCTIONED IN 2003 CONSTITUTE S A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT AND THE DEDUCTION U/S 80IB(10) IS ALLOWABLE IN RESPECT OF P REVIOUSLY COMPLETED 82 FLATS SINCE THESE FLATS SATISFY ALL TH E CONDITIONS LAID DOWN U/S 80IB(10) OF THE ACT IN ITS FACTS AND CIRCU MSTANCES AS DISCUSSED ABOVE. WE FIND THAT ON SIMILAR ISSUE, IT AT, PUNE BENCH IN THE CASE OF PARADISE CONSTRUCTION VS. ADDL .CIT IN ITA NO.233/PN/11 AND 346/PN/12, HELD AS UNDER: 9. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE ASSESSEE IS A PARTNERSH IP FIRM ENGAGED IN THE BUSINESS OF PROMOTERS, BUILDERS AND DEVELOPERS. THE ASSESSEE HAD CONSTRUCTED A PROJECT UNDER THE NAME OF GULMOHAR PARADISE HOME, KHARADI. THIS PROJECT INITIALLY COMPRISED OF 80 FLATS AS PER COMM ENCEMENT CERTIFICATE ISSUED BY THE PMC ON 28.04.2004. SUBSE QUENTLY, 46 MORE FLATS WERE ADDED IN SECOND BUILDING BY REVI SED SANCTION PLAN IN 2005. IT IS UNDISPUTED THAT THE A SSESSEE RECEIVED OCCUPATION/COMPLETION CERTIFICATE FOR 126 FLATS FROM PMC AS FOLLOWS: CERTIFICATE PART-I DT. 13.02.2006 FOR 80 FLATS IN BUILDINGS A & B. CERTIFICATE PART-II DT. 06.05.2008 FOR 40 FLATS I N BUILDING D. CERTIFICATE PART-III DT. 15.12.2008 FOR 40 FLATS IN BUILDING C. 10. ACCORDING TO THE ASSESSING OFFICER, THE FINAL COMPLETION/OCCUPATION CERTIFICATE FOR PROJECT WAS N OT ISSUED BY PMC AND AS PER BUILDING BY-LAWS ASSESSEE WAS REQ UIRED TO HANDOVER 15% OF THE AREA TO PMC FOR AMENITIES. IN FACT, ASSESSEES INITIAL PROJECT WAS FOR 126 FLATS FOR WH ICH COMPLETION CERTIFICATE WAS RECEIVED BY THE ASSESSEE ON 15.12.2008, I.E., BEFORE DUE DATE OF COMPLETION I.E ., 31.03.2009. IN ACCORDANCE WITH THE REVISED PLAN UP TO 25.05.2005, 126 FLATS COMPRISED 40 FLATS EACH IN BU ILDINGS A, B AND D AND 6 FLATS WERE RAISED IN BUILDIN G C. THUS, THE ASSESSEE GOT COMPLETION CERTIFICATE WITH REGARD S TO 126 FLATS BEFORE STIPULATED TIME PRESCRIBED U/S.80IB(10 ) I.E., 8 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. 31.03.2009. SUBSEQUENT TO THIS, IN LIEU OF 15% OF AMENITIES AREA, I.E., 1200 SQ.MTRS., ADDITIONAL FSI AMOUNTING TO SALEABLE AREA OF 18,700 SQ.FT. WAS SANCTIONED BY PM C VIDE COMMENCEMENT CERTIFICATE DATED 10.06.2009 WHICH WAS SUBSEQUENT TO DATE OF 31.03.2009, WHICH WAS TIME LI MIT FOR COMPLETION OF THE PROJECT HAVING 126 FLATS. THE AD DITIONAL FSI WAS UTILISED BY CONSTRUCTING 30 ADDITIONAL FLAT S IN BUILDING C. AS PER CLARIFICATION ISSUED ON BEHAL F OF CBDT DATED 04.05.2001, THE ADDITIONAL HOUSING PROJECT ON EXISTING HOUSING PROJECT SITE COULD QUALIFY AS INFRASTRUCTUR E FACILITY UNDER THE PROVISIONS OF SECTION 80IB(10) PROVIDED I T IS UNDERTAKEN BY SEPARATE UNDERTAKING HAVING SEPARATE BOOKS OF ACCOUNTS SO AS TO ENSURE THAT CORRECT PROFIT COU LD BE ASCERTAINED FOR PURPOSE OF SECTION 80IB(10). DEDUC TION U/S. 80IB(10) IS GRANTED VIS-A-VIS PROJECT AND CORRECT P ROFITS ARE ASCERTAINABLE WITH REGARDS TO PROFITS FROM ADDITION AL PROJECT. BUT HERE IN CASE BEFORE US, IT IS NOT THE CASE OF A SSESSEE BECAUSE ASSESSEE HAS NOT CLAIMED DEDUCTION U/S. 80I B(10) WITH REGARD TO ADDITIONAL FLATS RAISED IN BUILDING C AT THE STRENGTH OF ADDITIONAL FSI IN LIEU OF SURRENDER OF 15% OF AMENITIES AREA TO PMC. TAKING THE SPIRIT OF CLARIF ICATION OF CBDT LETTER DATED 04.05.2001, IT IS CLEAR THAT ADDI TIONAL CONSTRUCTION AT THE STRENGTH OF TDR QUALIFY FOR CLA IM OF DEDUCTION IN ITS OWN FACTS AND CIRCUMSTANCES. SAME REASONING APPLY FOR ADDITIONAL FSI RECEIVED IN LIEU OF SURRENDER OF 15% OF AMENITIES AREA BY THE ASSESSEE. SO THE CONSTRUCTION AT THE STRENGTH OF ADDITIONAL FSI SHOU LD BE TAKEN SEPARATE FOR PURPOSE OF CLAIMING DEDUCTION U/S.80IB(10). HAVING SAID SO, IT IS CLEAR THAT CON STRUCTION OF INITIAL 126 FLATS AS MENTIONED ABOVE SHOULD NOT BE LINKED WITH ADDITIONAL 30 FLATS COMPLETED SUBSEQUENT TO 31.03.2009. HAD THE ASSESSEE BEEN ELIGIBLE FOR DED UCTION U/S.80IB(10) EVEN SUBSEQUENT TO 31.03.2009, HIS CLA IM WOULD HAVE BEEN ENTITLED FOR WITH REGARDS TO 30 FLA TS AS WELL. BUT THERE IS NO CLAIM OF 30 FLATS WITH REGARD TO DE DUCTION U/S.80IB(10). BUT CLAIM OR NO CLAIM OF 30 FLATS RA ISED AT THE STRENGTH OF ADDITIONAL FSI WILL NOT DISTURB THE ENT ITLEMENT OF 126 FLATS RAISED ON BUILDINGS A (40 FLATS), B ( 40 FLATS) , C (6 FLATS) AND D (40 FLATS), WHICH WERE COMPLETED IN ALL RESPECTS ON 15.12.2008, I.E., BEFORE 31.03.2009. T HE BENEFICIAL PROVISIONS OF SECTION 80IB(10) SHOULD NO T BE DILUTED BY NARROW UNTENABLE INTERPRETATION BY THE R EVENUE AUTHORITIES. ACCORDINGLY, WE HOLD THAT THE ASSESSE E IS ENTITLED FOR CLAIMING DEDUCTION U/S.80IB(10) IN RES PECT OF 126 FLATS COMPLETED BEFORE 31-3-2009 AS DISCUSSED A BOVE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. SIM ILAR ISSUE AROSE IN A.Y. 2008-09. FACTS BEING SIMILAR, SO FOL LOWING SAME REASONING, THE CLAIM OF DEDUCTION U/S.80IB(10) IS DIRECTED TO BE ALLOWED. 9 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. THUS, THE TRIBUNAL IN PARADISE CONSTRUCTION (SUPRA ) ON IDENTICAL FACTS HELD IN VIEW OF CBDT CLARIFICATION DATED 04.05.2001, THE ADDITIONAL UNITS CONSTRUCTED OVER T HE COMPLETED PROJECT BY ACQUIRING ADDITIONAL TDR ARE TO BE CONSI DERED AS A SEPARATE HOUSING PROJECT AND DEDUCTION U/S.80IB(10) OF THE ACT AND IS TO BE ALLOWED IN RESPECT OF UNITS CONSTRUCTE D AS PER ORIGINAL SANCTIONED PLAN IF THESE UNITS SATISFY THE CONDITIONS STIPULATED U/S.80IB(10) OF THE ACT. THUS, THE ASSE SSING OFFICER WAS NOT JUSTIFIED IN MIXING THE ISSUE OF FOUR FLATS SUBSEQUENTLY CONCEIVED WITH 82 FLATS CONSTRUCTED AS PER ORIGINAL PLAN DT. 20.11.2003. WE HOLD SO. 5. THE SECOND ISSUE IS AREA OF TWO UNITS B5 AND B6 WHICH WERE COMBINED INTO A SINGLE RESIDENTIAL UNIT EXCEEDED 15 00 SQ. FT. ACCORDINGLY, THE ASSESSING OFFICER HELD THAT THE DE DUCTION U/S.80IB(10) OF THE ACT IS NOT ALLOWABLE TO THE ASS ESSEE ON THIS GROUND. THE STAND OF THE ASSESSEE HAS BEEN THAT TH E BUILT UP AREA OF TWO FLATS INCLUDING TERRACE AREA WAS ABOUT 1408.56 SQ. FT. A COPY OF THE ARCHITECTS CERTIFICATE IN THIS REGAR D HAS BEEN ENCLOSED AT PAGE 35 OF PAPER BOOK FILED BY THE ASSE SSEE AND THE SAME IS REPRODUCED AS UNDER: DATE: - 29/11/2010 TO WHOMSOEVER IT MAY CONCERN THIS IS TO CERTIFY THAT NET BUILT UP AREA OF THE FL ATS CONSTRUCTED IN THE PROJECT OF KULKANI CONSTRUCTIONS PVT.LTD. AT THEIR SITE 'SUVARNA PARK'-WING B SITUATED AT.S.N O. 18/1, BAVDHAN (KH), PUNE ARE AS MENTIONED IN THE FOLLOWIN G TABLE:- FLAT NO. NET BUILT UP AREA IN SQ.M NET BUILT UP AREA IN SQ.FT TERRACE BUILT UP AREA IN SQ.M TERRACE BUILT UP AREA IN SQ.FT 5 65.43 704.28 6.21 66.84 6 65.43 704.28 6,21 66.84 THE TERRACE AREA IS FREE OF F.S.I, AND NOT CALCULAT ED IN THE FLAT AREA AS PER SANCTIONED PLAN. HOWEVER AS PER THE 10 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. PREVAILING PRACTICE AMONG THE DEVELOPERS 50% A REA OF TERRACE IS CONSIDERED FOR CALCULATION. IF TERRACE A REA NOT CONSIDERED THE AREA OF FLAT NO. B- 5& B-6 IS 704.28 SQ.FT. EACH AND IF 50 % TERRACE AREA IS CONSIDERED, IT COM ES TO 737.70 SQ.FT EACH. THIS CERTIFICATE IS GIVEN BEING AT THE REQUEST FROM CLIENT. THIS CERTIFICATE IS ISSUED ON 29/11/2010. AVINASH NAWATHE (ARCHITECT) 5.1 HOWEVER, THE ASSESSING OFFICER HAS INCLUDED THE ADJOINING TERRACE IN THE BUILT UP AREA OF THE FLAT. THE PROJ ECT HAS COMMENCED IN 2003 AND AT THE RELEVANT POINT OF TIME TERRACE WAS NOT INCLUDABLE IN BUILT UP AREA. IN THIS REGARD, W E FIND THAT ITAT PUNE BENCH IN THE CASE OF VILAS JAVDEKAR & ASSOCIAT ES VS. ACIT IN ITA NO.769/PN/09, HAS HELD AS UNDER: 4. WE HAVE HEARD THE PARTIES AND PERUSED THE RECOR D. THE LD COUNSEL ARGUES THAT IN RESPECT OF THE TWO FL ATS, TERRACE AREA WAS INCLUDED BY THE GOVT. REGISTERED V ALUER SHRI NITIN LELE. HE SUBMITS THAT THE DEFINITION O F THE BUILT UP IS INSERTED WITH EFFECT FROM A.Y. 2005-06 AND TH E SAID DEFINITION IS HAVING PROSPECTIVE APPLICATION AS ADM ITTEDLY, WHEN THE ASSESSEES PROJECT WAS COMMENCED IN THE YE AR 2003, THERE WAS NO DEFINITION OF THE BUILT-UP AREA IN THE INCOME TAX ACT. HE SUBMITS THAT EVEN AS PER THE PM C RULES, & DEVELOPMENT CONTROL RULES, THE OPEN TERRAC E IS NOT INCLUDED IN THE BUILT UP AREA. BOTH THE AUTHORITIE S BELOW HAVE CONSIDERED THE DEFINITION OF THE BUILT UP ARE A INSERTED W.E.F. 1.4.2005 AND ACCORDINGLY, REFERRED THE MATTE R TO THE GOVT. REGISTERED VALUER FOR MEASUREMENT. THE LD. COUNSEL ALSO REFERRED TO THE PAPER BOOK WHERE THE DRAWING O F THE TWO FLATS IS PLACED. ALTERNATIVELY, HE PLEADED THAT O N PRORATE BASIS, THE DEDUCTION MAY BE ALLOWED TO THE ASSESSEE . 5. PER CONTRA, THE LD. D.R. SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. ADMITTEDLY, AS PER THE FACTS ON RECORD, THERE IS NO DISPUTE IN RESPECT OF THE AREA OF THE PLOT OF LAND AS WELL AS THE NATURE OF THE HOUSING PROJECT. SOLITARY CONTRO VERSY IS IN RESPECT OF BUILD UP AREA OF THE TWO FLATS. IT IS T HE CASE OF THE 11 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. A.O THAT THE AREA OF THOSE TWO FLATS EXCEEDS 1500 S Q. FT. (BUILT UP AREA) AND HENCE, THERE IS A VIOLATION OF THE CONDITION IN CLAUSE (C) TO SEC. 80IB(10). WE FIND THAT BOTH THE AUTHORITIES BELOW HAVE GONE WITH THE DEFINITION OF BUILT UP AREA INTRODUCED IN SEC. 80 IB(14)(A) WHICH IS A PPLICABLE FROM THE A.Y. 2005-06. SO FAR AS THE PRESENT ASSES SEE IS CONCERNED, ADMITTEDLY, THE HOUSING PROJECT IS COMME NCED PRIOR TO THE A.Y. 2005-06. THE CONSISTENT VIEW HAS BEEN TAKEN BY THE OTHER CO-ORDINATE BENCHES THAT THE DE FINITION OF THE BUILT UP AREA INSERTED IN SEC. 80IB(14)(A) W ILL BE APPLICABLE TO THE HOUSING PROJECTS WHICH ARE COMMEN CED FROM THE A.Y. 2005. 7. NOW THE NEXT QUESTION WILL BE IF THERE WAS NO DE FINITION OF THE BUILT UP AREA, PRIOR TO 1 ST APRIL 2005, THEN HOW TO WORK OUT THE BUILT UP AREA. AS HELD IN THE CASE OF BRAHMA ASSOCIATES & OTHERS OF THE SPECIAL BENCH, ITA NO. 1417/PN/2006 & OTHERS, REPORTED IN 30 SOT 155 (2009 ) (PUNE), WHAT IS TO BE CONSIDERED IS THE RULES OF TH E LOCAL AUTHORITIES. 8. WE MAY ALSO REFER HERE THE DECISION IN THE CASE OF M/S. PRIME PROPERTIES VS. ITO, PUNE, , ITA NOS. 838 , 887, 888 AND 889/PN/2010, ORDER DATED 26 APRIL 2012 IN RESPECT OF THE APPLICABILITY OF THE DEFINITION, THE TRIBUNAL HAS HELD AS UNDER : 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE PARTIES, PERUSED THE ORDERS OF THE A.O AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THE ONLY DISPUTE IN THE GROUNDS RAISED BY THE REVENUE IS REGARDING ALLOWABILITY OF DEDUCTION U/S. 80 IB (10) SINCE THE TOTAL AREA OF CERTAIN FLATS WHICH WERE COMBINED TOGETHER EXCEED THE MAXIMUM LIMIT OF 1500 SQ.FT.. IT IS THE SUBMISSION OF THE LD. COUNSEL OF THE ASSESSEE THAT EVEN IF 2 FLATS ARE COMBINED TOGETHER, TOTAL BUILT UP AREA OF NONE OF THE FLATS EXCEEDS 1500 SQ.FT. IF BALCONY/TERRACE ARE EXCLUDED. WE FIND THE A.Y. INVOLVED IN THE IMPUGNED APPEAL IS A.Y. 2004-05 AN D THE PROJECT HAS BEEN APPROVED PRIOR TO 1 ST APRIL 2005. THEREFORE, IN VIEW OF THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HAWARE CONSTRUCTIONS (P ) LTD. (SUPRA), THE PROVISIONS OF SUB-SECTION 14(A) OF SECTION 80 IB WHICH DEFINES BUILT UP AREA TO INCLUD E PROJECTIONS AND BALCONIES ARE APPLICABLE ONLY IN RESPECT OF THE PROJECTS APPROVED AFTER 1 ST APRIL 2005 AND CONSEQUENTLY, BALCONY/TERRACE CANNOT BE INCLUDE D 12 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. IN THE BUILT UP AREA OF THE FLATS IN THE ASSESSEE S HOUSING PROJECT WHICH WAS ADMITTEDLY APPROVED PRI OR TO 1 ST APRIL 2005. SINCE AFTER EXCLUDING THE PROJECTIONS AND BALCONIES, NONE OF THE COMBINED FLAT EXCEEDS T HE BUILT UP AREA OF 1500 SQ.FT., A FACT BROUGHT ON REC ORD BY THE LD CIT(A) AND NOT CONTROVERTED BY THE REVENU E, THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORD ER OF CIT(A) ALLOWING THE DEDUCTION U/S. 80 IB (10) OF TH E I.T. ACT. THE GROUNDS RAISED BY THE REVENUE ARE ACCORDINGLY DISMISSED. 9. NOWHERE, IT IS CONTROVERTED BY THE A.O THAT AS P ER THE RULES OF PUNE MUNICIPAL CORPORATION AS WELL AS THE DEVELOPMENT CONTROL RULES, TERRACE AREA IS NOT INCL UDED IN THE BUILT UP AREA. IN OUR OPINION, THE TERRACE ARE A HAS TO BE EXCLUDED FOR THE PURPOSE OF CALCULATING THE BUILT U P AREA AS PROVIDED IN CLAUSE (C) TO SEC. 80 IB (10). AS PER C ALCULATION FILED BEFORE US, WE FIND THAT THE BUILT UP AREA OF BOTH THE FLATS IS LESS THAN 1500 SQ. FT. WE, THEREFORE, ALL OW THE GROUND TAKEN BY THE ASSESSEE AND DIRECT THE A.O TO ALLOW THE DEDUCTION CLAIMED BY THE ASSESSEE U/S. 80 IB (1 0). 9. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 5.2 NOTHING CONTRARY HAS BEEN BROUGHT TO OUR KNOWLE DGE ON BEHALF OF REVENUE. MOREOVER, SIMILAR VIEW HAS BEEN TAKEN IN THE CASE OF ITO VS. PRIME PROPERTIES IN ITA NOS.887, 88 8 & 889/PN/10 WHICH HAS BEEN CONSIDERED IN THE CASE OF VILAS JAVDEKAR (SUPRA). MOREOVER, SIMILAR VIEW HAS BEEN TAKEN IN THE CASE OF BRAHMA BUILDERS VS. DCIT IN ITA NO.1003/PN/ 10 BY OBSERVING AS UNDER: 7. AFTER GOING THROUGH THE RIVAL SUBMISS IONS AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE C IT IN HIS ORDER U/S 263 HAS DISALLOWED THE CLAIM U/S 8 0- IB(10) IN RESPECT OF BRAHMA AANGAN PROJECT WHICH WA S ORIGINALLY ALLOWED BY THE ASSESSING OFFIC ER IN THE ASSESSMENT ORDER PASSED U/S 143(3) ON 21-1 2-2006. THE CIT HAS GIVEN FOUR REASONS IN THE ORDER U/S 263 FOR HOLDING THAT THE ASSESSEE IS NOT ENTITLED TO THE DEDUCTION U/S 80-IB(10) WHICH ARE AS UNDER: (A) THE CIT HAS HELD THAT THE PROJECT 'BR AHMA AANGAN' CONSISTS 7562 SQ.FT. COMMERCIAL AREA AND THEREFORE, IT IS NOT A RESIDENTIAL PROJECT. THE 13 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. DEDUCTION U/S 80IB(10) IS ALLOWABLE ONLY IF THE PRO JECT IS COMPLETELY RESIDENTIAL PROJECT. (B) EVEN, THE AMENDMENT U/S 80-IB(10) INTRODUCED IN THE FORM OF SUB-CLAUSE (D) W.E.F. 1-4-2005 HAS LIMITED THE AREA FOR COMMERCIAL USE TO THE EXTENT OF 5% OF THE TOTAL BUILT UP AREA OF 2000 SQFT. WHICHEVER IS LESS . THE LAST COMMENCEMENT CERTIFICATE OF THE PROJECT WAS OBTAINED ON 20-4-2005 AND THEREFORE, THERE IS A VIOLATION OF CLAUSE (D). (C) IN BUILDING B4 AND B5 THE DUPLEX FLATS ARE HAVING T HE BUILT UP AREA OF 1595 SQ.FT. EACH. THUS, THE BUI LT UP AREA CONDITION MENTIONED IN SUB-CLAUSE (C) OF 80IB(10) THAT THE FLAT SHOULD BE BELOW 1500 S Q.FT. BUILT UP AREA, IS VIOLATED. THIS AREA IS CALCULATE D AFTER INCLUDING THE TERRACE (BUILT UP AREA 1330 SQ.F T. AND TERRACE 265 SQ.FT). (D) ALONG WITH THE RETURN, THE ASSESSEE HAS NOT SUBMITT ED SEPARATE P & L ACCOUNT AND BALANCE SHEET FOR THE PROJECT. SECONDLY, THE FORM NO.10CCB (AUDIT REPORT ) IS NOT ATTACHED WITH THE P & L ACCOUNT AND BALANCE SHEET OF THE PROJECT AND IT IS BLANK IN VARIOUS COL UMNS WHICH ARE PERTAINING TO THE DEDUCTION U/S 80-IB(10) OF THE ACT. 7.1 ON ACCOUNT OF THE ABOVE MENTIONED REASON, THE C IT HELD THAT THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION U/S 80IB(10) OF THE ACT AS THE VARIOUS CONDITIONS MENTIONED IN T HE SECTION ARE VIOLATED. ACCORDING TO THE ASSESSEE, TH E ORDER OF THE CIT IS BAD IN LAW AS THE ASSESSMENT ORDER PASSE D BY THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR PREJUDIC IAL TO THE REVENUE. ON MERITS, THE RELIEF IS ALLOWABLE TO THE ASSESSEE U/S 80-IB(10) AS NONE OF THE CONDITIONS IN THE SECT ION IS VIOLATED. WE FIND THAT THE ASSESSMENT ORDER PLACED AT PAGES 17 TO 20 OF THE PAPER BOOK REVEALS THAT THE ASSESSI NG OFFICER HAS ALLOWED THE DEDUCTION U/S 80IB(10) IN RESPECT O F 'BRAHMA AANGAN PROJECT' BY MAKING ENQUIRIES. THE ASSESSING OFFICER HAS MADE THE DISALLOWANCE OF DEDU CTION ON THE INTEREST CLAIMED BY THE ASSESSEE IN PARA 4.1 OF THE ASSESSMENT ORDER WHICH IS MATTER OF RECORD. THE CIT WAS NOT JUSTIFIED IN HOLDING THAT THE RELIEF WAS ALLOWE D WITHOUT PROPER INQUIRIES. 7.2 ACCORDING TO THE CIT IS THAT THE PROJECT CONSIS TS OF SOME COMMERCIAL PORTION AND THE DEDUCTION IS ALLOWABLE O NLY TO A PURELY RESIDENTIAL PROJECT. IN THIS REGARD... 14 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. 7.3 WITH REGARDS TO AREA OF THE FLAT THAT WE FIND T HAT THE CIT HAS INITIALLY TAKEN A STAND THAT THE BUILT UP AREA OF THE DUPLEX FLATS ON 6 TH AND 7 TH FLOORS EXCEED 1500 SQ.FT. EACH. HE STATED THAT THE BUILT UP AREA INCLUDING THE TERRACE IS 1595 SQ.FT. IN BUILDING NO. B4 AND B5. THIS IS ARRIVED A T BY CONSIDERING THE BUILT UP AREA AT 1330 SQ.FT. AND TE RRACE OF 265 SQ.FT. FOR EACH FLAT AND THEREFORE, HE HELD THA T THE DEDUCTION IS NOT ALLOWABLE TO BRAHMA AANGAN PROJECT AS THE BUILT UP AREA OF A FEW FLATS EXCEEDED 1500 SQ.FT. E ACH. IN THIS CONTEXT, IT WAS THE STAND OF THE ASSESSEE THAT THE BUILT UP AREA WAS WRONGLY CALCULATED AND IN A SEPARATE PAPER BOOK CONTAINING 6 PAGES, THE ASSESSEE HAS GIVEN DETAILED WORKING OF THE BUILT UP AREA AS PER THE DEFINITION IN THE A CT. ACCORDINGLY THE TOTAL AREA WAS WORKED OUT TO 1212.9 3 SQ. FT AND TERRACE OF 281.93 SQ.FT. THUS THE TOTAL IS LESS THAN 1500 SQ.FT. HENCE THE OBJECTION OF THE CIT IS MISPLACED. 7.4 ALTERNATIVE ARGUMENT ON BEHALF OF THE ASSESSEE WAS THAT THE QUESTION OF INCLUDING THE TERRACE IN THE BUILT UP AREA COMES UP ONLY W.E.F. 1-4-2005, BECAUSE THE DEFINITI ON IS INTRODUCED IN THE SECTION WITH EFFECT FROM THAT DAT E. FOR THE PERIOD PRIOR TO 1-4-2005 NO SUCH DEFINITION WAS ON THE STATUTE AND HENCE THE BUILT UP AREA HAS TO BE CONSI DERED AS PER THE DC RULES OF THE SANCTIONING AUTHORITY. IN T HIS REGARD, IT WAS SUBMITTED THAT THE DC RULES DO NOT INCLUDE T ERRACE IN THE BUILT UP AREA, THE DEFINITION OF BUILT UP AREA AND THAT THE AREA COVERED IMMEDIATELY PLINTH LEVEL OF THE BUILDI NG OR THE EXTERNAL AREA OF ANY UPPER FLOOR WHICHEVER IS MORE IS THE BUILT UP AREA. AS THE TERRACE IS OPEN TO SKY, IT IS NOT INCLUDIBLE IN THE BUILT UP AREA AND THAT IS WHY IT IS EXCLUDED BY THE ASSESSEE'S ARCHITECT FROM THE BUILT UP AREA. THE VIEW THAT THE AMENDED DEFINITION OF BUILT UP AREA THAT T HE TERRACE IS INCLUDED W.E.F. 1-4-2005 IS NOT APPLICABLE FOR T HE EARLIER YEARS AS HELD BY THE ITAT PUNE BENCH IN THE CASE OF TUSHAR DEVELOPERS IN ITA NO. 165/PN/2007 AND 94/PN/2007 FO R A.Y. 2003-04 AND 2004-05 DATED 31-5-2011, WHEREIN I T HAS BEEN HELD AS UNDER: 'SO FAR AS THE ISSUE OF APPLICATION OF DEFINITION O F 'BUILT UP AREA' AS BROUGHT ON THE STATUTE BY FINANCE ACT (200 4) VIDE SUB-SECTION 14 TO SECTION 80-IB OF THE ACT WE.F. 1- 4-2005 IS CONCERNED, WE RESPECTFULLY FOLLOWING THE DECISION O F HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES (SUPRA) HOLD THAT THE AMENDED PROVISION IS STATED TO COME W.E.F. 1-4-2005 IS HAVING PROSPECTIVE EFFEC T ONLY. WE ARE HOWEVER, OF THE VIEW THAT IN ABSENCE OF SUCH DE FINITION BEFORE 1-4-2005 IN SECTION 80-IB, THE DEFINITION 'B UILT UP AREA' AS PER THE LOCAL LAW I.E. IS RELATED PROVISIO NS AVAILABLE WITH THE LOCAL MUNICIPAL CORPORATION WILL BE HELPFU L TO DECIDE 15 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. THE ISSUE, AS TO WHETHER TERRACE AREA AND GARDEN EX CLUSIVE DOMAIN OF THE FLAT/ROW HOUSE OWNERS WILL BE INCLUDE D IN THE AREA OF THE FLAT WHILE EXAMINING AS TO WHETHER THE SAME IS WELL WITHIN THE PRESCRIBED AREA OF THE FLAT/ROW HOU SE I.E. 1500 SQ.FT. AS PER SECTION 80-IB(10) AS PREVAILING DURING THE YEAR UNDER CONSIDERATION. WE, THUS, SET ASIDE THE M ATTER ON THE ISSUE FOR FRESH CONSIDERATION TO THE AO TO DECI DE THE SAME AS PER OUR ABOVE FINDING IN THIS REGARD AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE.' IN VIEW OF ABOVE DISCUSSION THE CIT WAS NOT JUSTIFI ED TO INVOKE PROVISIONS U/S.263 OF ACT. MOREOVER, THE ITA T MUMBAI BENCH IN THE CASE OF HAWARE CONSTRUCTIONS (P ) LTD. VS. ITO (2011) 64 DTR (MUMBAI) 251 HAS ALSO TAKEN A VIEW THAT THE TERRACE IS NOT INCLUDIBLE IN THE BUILT UP AREA OF THE FLAT PRIOR TO 1-4-2005 AND HENCE FOR THE PROJECTS C OMMENCED PRIOR TO 1-4-2005, TERRACE IS NOT INCLUDIBLE IN THE BUILT UP AREA. IN VIEW OF THE ABOVE, THE DECISION OF THE CIT ON THIS ACCOUNT DOES NOT JUSTIFY THE INVOKING OF PROVISIONS U/S. 263 OF THE ACT. 7.5 WITHOUT PREJUDICE TO ABOVE THE CIT IS NOT JUSTI FIED IN HOLDING THAT THE ENTIRE PROJECT BRAHMA AANGAN IS NO T ENTITLED TO THE DEDUCTION JUST BECAUSE 4 DUPLEX FLA TS IN B4 AND B5 BUILDINGS ARE HAVING THE BUILT UP AREA EXCEE DING 1500 SQ.FT. THE ITAT THIRD MEMBER IN THE CASE OF SA NGHVI & DOSHI ENTERPRISES VS. ITO (2011) 60 DTR (CHENNAI) (TM)(TRIB) 306 HAS HELD THAT ONLY THE FLATS EXCEEDI NG THE LIMIT OF BUILT UP AREA CAN BE EXCLUDED AND THE DEDU CTION SHOULD BE ALLOWED ON THE BALANCE FLATS WHICH ARE WI THIN THE LIMITS OF BUILT UP AREA MENTIONED IN THE SECTION. S IMILAR VIEW IS ALSO TAKEN BY ITAT KOLKATA BENCH IN THE CASE OF BENGAL AMBUJA CEMENT. IN VIEW OF THIS ALTERNATE CONTENTION , CIT WAS NOT JUSTIFY TO INVOKE PROVISIONS OF 263 OF THE ACT ON THIS ACCOUNT. 7.6 OTHER ISSUE IS THAT THE ASSESSEE HAS SUBMITTED THE AUDIT REPORT WHICH IS BLANK IN RESPECT OF THE COLUMNS REL ATING TO THE DEDUCTION U/S 80-IB(10). THE CIT MENTIONED . 8. IN VIEW OF ABOVE LEGAL AND FACTUAL DISCUSSION OR DER OF THE CIT IS SET ASIDE. 5.3 IN VIEW OF ABOVE, WE HOLD THAT THE ASSESSING OF FICER WAS NOT JUSTIFIED IN INCLUDING ADJOINING TERRACE IN THE BUI LT UP AREA OF THE FLAT WHILE CALCULATING THE AREA OF THE FLATS IN QUE STION FOR THE PURPOSE OF DEDUCTION U/S.80IB(10) OF THE ACT BECAUS E THE PROJECT 16 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. HAS COMMENCED IN 2003. THEREFORE, THE SAID TERRACE WAS NOT INCLUDABLE IN THE BUILT UP AREA AT THE RELEVANT POI NT OF TIME. SO, THE CIT(A) WAS JUSTIFIED IN ACCEPTING PLEA OF ASSES SEE IN THIS REGARD WHICH NEEDS NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 6. THE NEXT ISSUE IS WITH REGARD TO THE COMPLETION CERTIFICATE IN RESPECT OF FOUR FLATS OBTAINED AFTER 31.03.2008. IN THIS REGARD, THE STAND OF THE ASSESSEE HAS BEEN THAT THE ASSESSE E HAS MADE AN APPLICATION ON 28.03.2008 WITH REGARD TO 20 FLAT S WHICH IS EVIDENT FROM THE APPLICATION DT. 28.03.2008 FILED B EFORE PMC AND THE SAME HAS BEEN PLACED AT PAGE 33 OF PAPER BOOK F ILED BY THE ASSESSEE. THE ASSESSEE HAS RECEIVED COMPLETION CER TIFICATE ON 31.03.2008 FOR 16 FLATS AS EVIDENT FROM COMPLETION CERTIFICATE DT. 31.03.2008 WHICH IS PLACED AT PAGE 29 OF THE PAPER BOOK FILED BY THE ASSESSEE WHILE FOR FLATS IN BUILDING A, CERTIFI CATE WAS RECEIVED ON 07.11.2008 AS PLACED AT PAGE 30 OF THE PAPER BOO K. THESE FLATS WERE COMPLETED BEFORE 31.03.2008 WHICH IS EVI DENT FROM THE APPLICATION FOR COMPLETION CERTIFICATE. HOWEVER, C ERTIFICATE WAS NOT ISSUED FOR THE ABOVE FOUR FLATS BEFORE 31.03.20 08, BUT THE FACT THAT THE ASSESSEE HAS COMPLETED THESE FLATS WHICH I S EVIDENT FROM THE ARCHITECTS CERTIFICATE AS PLACED AT PAGE 34 OF THE PAPER BOOK FILED BY THE ASSESSEE, WHICH READS AS UNDER: DATE: - 26/11/2O1O CERTIFICATE THIS IS TO CERTIFY THAT THE PROJECT SITUATED AT S.N O. 18/1/1, BAVDHAN(KHURD) WAS COMPLETED BEFORE 31/3/2008 AND W E HAD APPLIED FOR COMPLETION CERTIFICATE FOR THE COMP LETE PROJECT ON 28/3/2008. IN PURSUANCE THEREOF THE COMPLETION CERTIFICATE FOR 16 FIATS WAS ISSUED BY PUNE MUNICIPAL CORPORATION VIDE NO. 1 780 DATED 31/03/2008. HOWEVER, THE FORMAL COMPLETION CERTIFICATE FOR FOUR FLATS WAS RETAINED BY PUNE MUN ICIPAL CORPORATION AUTHORITIES FOR SOME TECHNICAL AND ADMINISTRATIVE REASONS SUCH AS HANDING OVER OF AMEN ITY 17 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. SPACE, ROAD WIDENING AREA ETC., WHICH WAS ONLY THE PROCEDURAL MATTER. ON COMPLETION OF ALL THESE FORMA LITIES, PUNE MUNICIPAL CORPORATION HAS ISSUED COMPLETION CERTIFICATE FOR BALANCE 4 FLATS OUT OF 82 FLATS OF THE SCHEME ON 07/11/2008. HOWEVER, THE ENTIRE PROJECT WAS HAB ITABLE AND COMPLETE IN ALL RESPECTS BEFORE'31 ST MARCH, 2008. THE DEVELOPER OF THE ABOVE SCHEME IS M/S KULKARNI CONSTRUCTIONS PVT. LTD. THIS CERTIFICATE IS ISSUED ON 26/11/2010. AVINASH NAWATHE (ARCHITECT) IT SHOWS THAT THE ABOVE FOUR FLATS WERE COMPLETED AT THE TIME WHEN THE COMPLETION CERTIFICATE WAS APPLIED ON 28.03.2008 FOR 20 FLATS INCLUDING THESE FOUR FLATS BUT FOR THE REASON TWO COMPLETION CERTIFICATES HAVE BEEN ISSUED (I) FOR 16 FLATS ON 31.03.2008 AND FOR REMAINING 4 FLATS ON 07.11.2008 EVEN THOUGH THE APPLICATION FOR OCCUPANCY CERTIFICATE WAS MADE IN TIME. THEREFORE, THE DEDUCTION U/S.80IB(10) OF THE ACT SH OULD NOT BE REJECTED ON THIS GROUND ALONE. THIS VIEW IS FORTIF IED BY THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. TARNETAR CORPORATION [26 TAXMANN.COM 180 (GUJ)], WH EREIN, THE ASSESSEE GOT APPROVAL FOR DEVELOPMENT OF HOUSING PR OJECT FROM LOCAL AUTHORITY BEFORE 01.04.2004 AND IT COMPLETED THE CONSTRUCTION IN THE YEAR 2006 AND ALSO APPLIED FOR PERMISSION TO THE LOCAL AUTHORITY ON 15.02.2006. THE LOCAL AUTHO RITY FOR TECHNICAL REASONS GRANTED BUSINESS USE PERMISSION O NLY ON 19.03.2009. IT WAS HELD THAT THE ASSESSEE HAS COMP LETED HOUSING PROJECT WELL WITHIN THE STATUTORY TIME LIMI T FRAMED, SO BECAME ENTITLED FOR DEDUCTION U/S.80IB(10) OF THE A CT IN SPITE OF THE FACT THAT THE LOCAL AUTHORITY FOR TECHNICAL REA SONS GRANTED BUSINESS USE PERMISSION ON 19.03.2009. FOLLOWING T HE SAME REASONING, A SIMILAR VIEW HAS BEEN TAKEN BY ITAT, P UNE BENCH IN THE CASE OF M/S. CITY DEVELOPMENT CORPORATION VS. A DDL.CIT IN 18 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. ITA NO.1489/PN/2009 AND 1100/PN/2010 BY OBSERVING A S UNDER: 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. QUITE CLEARLY, THE DISPUTE IS WITH REGARD TO THE CO MPLETION CERTIFICATE OF BUILDING E HAVING BEEN ISSUED BY T HE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION, ON 5-5-2 008. SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) R EQUIRES THAT THE CONSTRUCTION OF THE PROJECT IN QUESTION IS TO B E COMPLETED ON OR BEFORE 31-3-2008. CLAUSE (II) OF EX PLANATION BELOW SECTION 80-IB(10)(A) PRESCRIBES THAT THE DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTH ORITY. IN THE PRESENT CASE, IT HAS BEEN ISSUED ON 5-5-2008 AN D HENCE THE CASE SET UP BY THE REVENUE THAT THE COMPLETION IS BEYOND THE MANDATED DATE OF 31-3-2008. IN THIS BACKGROUND, WE FIND THAT THERE IS NO DISPUTE THAT T HE ASSESSEE APPLIED FOR OBTAINING THE COMPLETION CERTI FICATE IN RESPECT OF BUILDING E ON 12-3-2008. FROM THE DIS CUSSION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORD ER, WHEREIN THE FACTUAL ASSERTIONS OF THE ASSESSEE HAVE BEEN REPRODUCED, IT IS QUITE EVIDENT THAT THE ASSESSEE A SSERTED THAT BEFORE 31-3-2008, THE CONSTRUCTION OF BUILDING WAS COMPLETE IN ALL RESPECTS; THAT ELECTRICAL CONNECTI ON WAS PROVIDED TO EACH FLAT OWNER; ROAD WAS COMPLETE; WA TER AND DRAINAGE CONNECTION WAS AVAILABLE; SEWERAGE SYSTEM WAS OPERATING; CLUB HOUSE WAS FUNCTIONAL; ETC. THE ASS ESSEE ALSO POINTED OUT THAT THE LOCAL AUTHORITY HAD ALSO INITIATED PROPERTY TAX ASSESSMENTS FOR EACH OF THE FLATS AND THE SAME DEMONSTRATED THAT ALL THE FLATS IN THE BUILDING WE RE COMPLETE. IN FACT, IN PARA 6.9 OF THE ASSESSMENT O RDER, THE ASSESSING OFFICER NOTICED THAT THE FACTS THAT THE FLATS WERE COMPLETED AND POSSESSION GIVEN WILL NOT COME TO THE RESCUE OF THE ASSESSEE . THE AFORESAID FINDING OF THE ASSESSING OFFICER SUPPORTS THE ASSERTION MADE BY THE ASSESSEE THAT FA CTUALLY SPEAKING CONSTRUCTION OF FLATS IN BUILDING E WAS ALSO COMPLETE AND POSSESSION HANDED OVER TO THE ACTUAL USER/CUSTOMERS PRIOR TO 31-3-2008. PERTINENTLY, ON THE BASIS OF THE ARCHITECTS CERTIFICATE CONFIRMING COM PLETION OF CONSTRUCTION OF BUILDING, THE ASSESSEE APPLIED FOR THE COMPLETION CERTIFICATE TO THE PUNE MUNICIPAL CORPOR ATION ON 12-3-2008. IT HAS BEEN POINTED OUT BEFORE US THAT THE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION DID NOT R AISE ANY OBJECTION WITH REGARD TO ASSESSEES APPLICATION AND THE CERTIFICATE FOR BUILDING E WAS THEREAFTER ISSUED ON 5-5- 2008. THE MOOT QUESTION IS AS TO WHETHER IN SUCH A SITUATION CAN IT BE SAID THAT THE ASSESSEES PROJEC T DID NOT 19 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. COMPLY WITH THE CONDITION PRESCRIBED IN SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) OF THE ACT WHEREBY THE CONSTRUCTION WAS TO BE COMPLETED ON OR BEFORE 31-3- 2008. SOMEWHAT SIMILAR SITUATION WAS CONSIDERED BY OUR CO - ORDINATE BENCH IN THE CASE OF HINDUSTAN SAMUTHA AWA S LTD. (SUPRA) WHEREIN ALSO ON THE STRENGTH OF ARCHIT ECTS CERTIFICATE, AN APPLICATION FOR OBTAINING COMPLETIO N CERTIFICATE WAS MOVED TO THE LOCAL AUTHORITY ON 25- 2-2008 BUT IN ACTUALITY THE COMPLETION CERTIFICATE WAS ISS UED BY THE LOCAL AUTHORITY ON 10-10-2008. THE TRIBUNAL NOTICE D THAT THE DELAY IN ISSUING COMPLETION CERTIFICATE WAS NOT ATTRIBUTABLE TO THE ASSESSEE AS NO OBJECTIONS WERE RAISED BY THE LOCAL AUTHORITY. THE TRIBUNAL AFTER CONSIDERIN G ITS EARLIER DECISIONS IN THE CASE OF M/S. SATISH BOHRA & ASSOCIATES VS. ACIT IN ITA NO. 713 AND 714/PN/2010 FOR A.Y. 2004-05 AND 2005-06 DATED 7-1-2011; M/S. D.K. CONSTRUCTIONS VS. ITO ITA NO. 243/PN/2010 FOR A.Y. 2006- 07; DATED 6-12-2010 AND SANGHVI AND DOSHI ENTERPRIS ES VS. ITO AND OTHERS ITA NO. 259 TO 263/MDS/2010 DATE D 19-5-2011 FOR A.Y. 2005-06 AND 2006-07 (TM) HAS CONCLUDED AS FOLLOWS: FROM THE ABOVE, ONCE THIS IS CLEAR THAT THE DATE THAT APPEARS ON THE ARCHITECTS COMPLETION CERTIFICATE F ILED BEFORE THE LOCAL AUTHORITY IS RELEVANT ONE. IN THE INSTANT CASE, THE SAID DATE IS 25-3-2008 AND THE ASSESSEE FILED REQUISITE FORM BEFORE THE LOCAL AUTHORITIES INTIMATING THE COMPLETION OF THE PROJEC T. THE SAID CERTIFICATE/INTIMATION WAS ACCEPTED BY THE LOCAL AUTHORITY WITHOUT ANY AMENDMENTS OR OBJECTION S. LOCAL AUTHORITY HAS NOT RAISED ANY QUERIES ON THE QUALITY CONSTRUCTION OF THE BUILDING OR THE COMPLET ION OF THE SAME AS PER THE PLANS APPROVED BY SUCH AUTHORITY. IN SUCH CIRCUMSTANCES, IN OUR OPINION, THE DELAY IN OBTAINING THE COMPLETION CERTIFICATE ON 10 -10- 2008 IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE AND OBTAINING THE SAID CERTIFICATE BEFORE 31-3-2008 IS BEYOND THE CONTROL OF THE ASSESSEE. ASSESSEES JOB INCLUDES THE COMPLETION OF THE BUILDING IN ACCORDAN CE WITH THE APPROVED PLANS AND INTIMATION OF THE SAME TO THE LOCAL AUTHORITY BY WAY OF FILING THE REQUISITE FORMS TOGETHER WITH THE COMPLETION CERTIFICATE GIVEN BY T HE ARCHITECT, THE SPECIALIST IN THE MATTER AND THE ASS ESSEE HAS DONE HIS JOB SCRUPULOUSLY IN THIS CASE. HOWEVE R, THE LOCAL AUTHORITY HAS NEITHER OBJECTED TO THE SAI D APPLICATION OF THE ASSESSEE AND THE ARCHITECT BY RA ISING ANY OBJECTIONS FOR ACCEPTED BY ISSUE OF SAID COMPLE TION CERTIFICATE TILL 10-10-2008. THEREFORE, THE DELAY IN GRANT OF THE SAID CERTIFICATE IS CERTAINLY NOT ATTR IBUTABLE 20 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. TO THE ASSESSEE. THEREFORE, IN OUR OPINION, THE ASSESSEE IS NOT DEFAULTER ON THIS ACCOUNT AND THUS, THE AO HAS ERRED IN DENYING THE DEDUCTION U/S 80-IB(10) OF THE ACT. ACCORDINGLY, THE ORDER OF THE CIT(A) HA S TO BE REVERSED. THUS, THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED 13. THE AFORESAID DECISION OF THE TRIBUNAL IS CLEAR LY APPLICABLE TO THE FACTS OF THE PRESENT CASE ALSO. IN THE PRESENT CASE, THE COMPLETION CERTIFICATE WAS APPLIE D FOR BEFORE 31-3-2008 I.E. ON 12-3-2008. IT IS UNDISPUTA BLE THAT THE APPLICATION OF THE ASSESSEE HAS BEEN APPROVED B Y THE LOCAL AUTHORITY WITHOUT RAISING ANY AMENDMENT OR OB JECTION, AS HAS BEEN ASSERTED BY THE ASSESSEE ALL ALONG AND THE DELAYED ISSUANCE OF THE COMPLETION CERTIFICATE BY T HE LOCAL AUTHORITY ON 5-5-2008, ALBEIT AFTER THE MANDATED DA TE OF 31- 3-2008 CANNOT BE ATTRIBUTED TO THE ASSESSEE. IN THI S BACKGROUND OF THE MATTER, WE THEREFORE, FIND AMPLE FORCE IN THE PLEA OF THE ASSESSEE THAT DENIAL OF DEDUCTION U /S 80- IB(10) ON SUCH SCORE IS UNCALLED FOR. IN CONCLUSIO N THEREFORE, IN THE INSTANT FACTUAL BACKGROUND, WE HO LD THAT THE ASSESSEE HAS COMPLIED WITH THE CONDITION OF COM PLETING THE CONSTRUCTION OF THE PROJECT WITHIN THE MANDATED DATE OF 31-3-2008 EVEN WITH REGARD TO BUILDING E, FOLLOWI NG THE PARITY OF THE REASONING LID DOWN IN THE CASE OF HIN DUSTAN SAMUTHA AWAS LTD. (SUPRA). . 14. SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(1 0) OF THE ACT REQUIRES THAT THE UNDERTAKING, DEVELOPING AND B UILDING A HOUSING PROJECT COMPLETES SUCH CONSTRUCTION OR BEFORE 31-3-2008. IN THE PRESENT CASE, ASSESSEE HAS FACTUA LLY ASSERTED RIGHT FROM THE STAGE OF ASSESSMENT PROCEED INGS, THAT THE CONSTRUCTION OF BUILDING E WAS COMPLETE IN ALL RESPECTS AS PER SANCTIONED PLAN AND ALL THE FLATS W ERE HANDED OVER TO THE ACTUAL USERS/CUSTOMERS PRIOR TO 31-3- 2008. IN THE BACKGROUND OF THE AFORESAID FACTUAL PO SITION WHICH HAS REMAINED UNCONTROVERTED, IN OUR VIEW, ON A PLAIN READING OF SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) THE CONDITION PRESCRIBED THEREIN IS FULFILLED., INA SMUCH AS THE CONSTRUCTION OF BUILDING E WAS COMPLETE BEFOR E 31-3- 2008. HOWEVER, ON THE READING OF CLAUSE (II) OF TH E EXPLANATION BELOW SEC. 80-IB(10)(A) OF THE ACT, IT EMERGES THAT THE COMPLETION OF CONSTRUCTION OF A HOUSING PR OJECT IS TO BE TAKEN TO BE THE DATE ON WHICH COMPLETION CERT IFICATE IS ISSUED BY THE LOCAL AUTHORITY, WHICH IN THE PRESENT CASE IS ISSUED ON 5-5-2008 I.E. BEYOND THE STIPULATED DATE OF 31-3- 2008. THE MOOT QUESTION IS IN CASE THE CONDITION O F COMPLETION CONSTRUCTION CONTAINED IN THE SUBSTANTIV E SECTION 80-0IB(10)(A)(I) IS FACTUALLY FOUND TO BE C OMPLIED 21 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. WITH, CAN THE CONTENTS OF THE EXPLANATION CLAUSE (I I) THEREOF, ALTER THE SITUATION? CAN AN EXPLANATION APPENDED T O A SECTION, ENLARGE THE SCOPE OF THE MAIN SECTION SO A S TO MAKE IT MORE ONEROUS FOR A TAX-PAYER? BE THAT AS IT MAY , WE DO NOT DWELL ON THIS ASPECT ANY FURTHER, AS THE ASSESS EE HAS BEEN FOUND TO BE ELIGIBLE FOR NECESSARY RELIEF BECA USE THE CONDITION PRESCRIBED IN SECTION 80-IB(10)(A)(I) OF THE ACT HAS BEEN COMPLIED WITH IN VIEW OF THE STATED PRECEDENTS . WE THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) ON THI S ASPECT AND HOLD THAT THE ASSESSEE CANNOT BE DENIED THE CLA IM OF DEDUCTION U/S 80-IB(10) ON THE STRENGTH OF NON-ISSU ANCE OF THE COMPLETION CERTIFICATE FOR BUILDING E BY THE PUNE MUNICIPAL CORPORATION BEFORE 31-3-2008, HAVING REGA RD TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 6.1 IN VIEW OF ABOVE, WE HOLD THAT THE ASSESSEE HAS APPLIED FOR OCCUPANCY CERTIFICATE IN TIME EVEN THOUGH THE SAME IS GIVEN WITH RESPECT TO FOUR FLATS ON 07.11.2008 IT WILL RELATE BACK TO DATE OF APPLICABILITY I.E. 28.03.2008, THE ASSESSEE WILL BE ENTITLED FOR CLAIM OF DEDUCTION IN RESPECT OF THESE FOUR FLATS A S WELL AS IT HAS COMPLETED THE CONSTRUCTION PRIOR TO THAT DATE AS DI SCUSSED ABOVE. IT IS PERTINENT TO MENTION REGARDING FOUR OTHER FLA TS WHICH WERE CONSTRUCTED AT THE STRENGTH OF TDR ARE NOT SUBJECT MATTER OF SECTION 80IB(10) OF THE ACT BEFORE US. IN VIEW OF ABOVE, THE ORDER OF CIT(A) GRANTING CLAIM U/S.80IB(10) OF THE ACT IN RESPECT OF 20 FLATS IS UPHELD BY US AS DISCUSSED ABOVE. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED AS DISCUSSED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY 30 TH OF JUNE, 2014. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 30 TH JUNE, 2014 GCVSR 22 ITA NO.1674/PN/12 M/S. KULKARNI CONSTRUCTIONS PVT. LTD. COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-I, PUNE 4) THE CIT-I, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE