Grandeur Homes Private Limited, Hyderabad V. Income Tax Officer, Ward-2(2), Hyderabad

ITA 2134/Hyd/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7788 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 09-07-2019
• Assessment Year: 2013-2014
• Appeal Filed On: 14-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V APARNA
• Assessee Lawyers: S RAMA RAO
• Section: 143(3); 80IB; 80IA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES, B - SMC BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NOS. 2134 & 2135 /HYD/201 7 A.YS: 2013 - 14 & 2014 - 15 M/S GRANDEUR HOMES PVT. LTD. 4 TH FLOOR, ASHOKA HITECH CHAMBER, 8 - 2 - 120/76/1/B/16,17,18 ROAD NO.2, BANJARA HILLS HYDERABAD 500 034 HYDERABAD PAN:AA C CG7612F VS INCOME TAX OFFICER WARD 2 (2) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO, AR FOR REVENUE : SMT. V. APARNA, DR O R D E R PER P.MADHAVI DEVI, J.M. BOTH ARE ASSESSEES APPEALS FOR A.Y. 2013 - 14 AND 2014 - 15 RESPECTIVELY AGAINST COMMON AND CONSOLIDATED ORDER OF THE CIT(A) - II , HYDERABAD DATED 1 5 TH SEPTEMBER, 2017 . SINCE FACTS OF THE ASSESSEE ARE SIMILAR IN BOTH THE ASSESSMENT YEARS, THE APPEALS ARE DISPOSED BY A COMMON ORDER. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY ENGAGED IN THE BUSINESS OF DEVELOPING AND BUILDING HOUSING PROJECTS , FILED ITS RETURN OF INCOME FOR THE RELEVANT A.Y. AND CLAIMED DEDUCTION U/S 80 IB(10) OF THE I.T.ACT, 1961. DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) PURSUANT TO SELECTION OF RETURN OF INCOME FOR SCRUTINY UNDER CASS, THE AO NOTICED THAT THE HOUSING PROJECT EMERALD HEIGHTS SHOULD HAVE BEEN COMPLETED WITHIN 5 YEARS FROM THE END OF THE F.Y. IN DATE OF HEARING: 0 9 .07.2019 DATE OF PRONOUNCEMENT: 17/7/ 2019 ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 2 WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. HE OBSERVED THAT FROM THE APPROVAL LETTER ISSUED BY HUDA THE DATE OF APPROVAL WAS 24.3.2007 AND THE 5 YEAR PERIOD ENDS ON 31.3.2012 AND THE CONSTRUCTION OF EMERALD HEIGHTS HAS NOT BEEN COMPLETED BEFORE THE SAID DATE. THE AO WAS THEREFORE OF THE OPINION THAT THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB OF THE ACT WITH REGARD TO PROJECT EMERALD HEIGHTS. THE AO FURTHER OBSERVED THAT THE DEDUCTION U/S 80 IB(10) WAS ALSO DISALLOWED FOR THE A.Y. 2012 - 13. THEREFORE HE DISALLOWED THE CLAIM FOR A.Y. 2013 - 14 AND 2014 - 15 AS WELL. 3. ON APPEAL , THE CIT(A) ALSO CONFIRMED THE ORDER OF THE AO BY FOLLOWING ORDER OF HIS PREDECESSOR FOR THE A.Y. 2012 - 13 AND ASSESSEE IS IN APPEAL BEFORE US FOR BOTH THE A.YS AND COMMON GROUNDS RAISED BY ASSESSEE IN BOTH THE APPEALS ARE AS UNDER. 1. THE ORDER OF THE LEARNED CIT (A ) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2 . THE LEARNED CIT (A) ERRED IN CONFIRMING THE ACTION OF THE AO IN REJECTING THE CLAIM FOR DEDUCTION U/S 80IB(10) OF THE I.T. ACT . 3 . THE LEARNED CIT (A) OUGHT TO HAVE CONSIDERED THE FACT THAT THE BLOCK, A & D AND CLUB HOUSE WERE COMPLETED WITHIN THE PERIOD OF FIVE YEARS AND CERTIFICATE OF COMPLETION WAS ISSUED BY THE HUDA AND THAT THE INCOME PROPORTIONATELY IS ADMISSIBLE FOR DEDUCTION. 4. . THE LEARNED CIT (A) OUGHT TO HAVE INDEPENDENTLY DISCUSSED THE ISSUES WITHOUT RELYING ON THE ORDER FOR THE A.Y. 2012 - 13 PARTICULARLY WHEN THE SAID ORDER FOR THE AY 2012 - 13 PARTICULARLY WHEN THE SAID ORDER FOR THE A.Y. 2012 - 13 WAS DECIDED EX PARTE AND WHEN THE MATERIAL FACTS WERE NOT AVAILA BLE. 5. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF HEARING. 4 . THE LD.COUNSEL FOR ASSESSEE SUBMITTED THAT THE ISSUE OF DISALLOWANCE U/S 80IB HAD ARISEN IN A.Y. 2012 - 13 AND HAD BEEN CONSIDERED BY THE A BENCH OF THIS TRIBUNAL AND THE TRIBUNAL HAS DIRECTED THE AO TO ALLOW THE DEDUCTION PROPORTIONATELY IN RESPECT OF THE BLOCKS A AND D WHICH HAVE BEEN COMPLETED WITHIN THE SPECIFIED DATE. A COPY OF THE SAID ORDER IS FILED BEFORE US. ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 3 5. THE LD.DR WAS ALSO HEARD WHO SUPPORTED THE ORDERS OF AUTHORITIES BELOW. 5. HAVING REGARD TO THE RIVAL CONTENTIONS , THE MATERIAL PLACED ON RECORD AND FACTS OF THE ISSUE, WE FIND THAT THE ISSUE HAS BEEN CONSIDERED BY THE COORDINATE BEN CH OF THE TRIBUNAL ( TO WHICH BOTH OF US ARE SIGNATORIES ) FOR A.Y. 2012 - 13 AND BOTH THE AO AS WELL AS THE CIT(A) HAVE FOLLOWED THEIR STAND FOR A.Y. 2012 - 13 IN THESE TWO YEARS AS WELL . THEREFORE, WE DEEM IT FIT AND PROPER TO RESTORE THE ISSUE TO THE FILE OF THE AO WITH SIMILAR DIRECTIONS AS GIVEN FOR THE A.Y. 2012 - 13. FOR THE SAKE OF READY REFERENCE THE RELEVANT PORTION OF TRIBUNALS ORDER IS REPRODUCED HERE UNDER. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT IN THE CASE OF MANJEERA PROJECTS, THE COORDINATE BENCH OF THIS TRIBUNAL (TO WHICH BOTH OF US ARE SIGNATORIES) HAVE CONSIDERED VARIOUS JUDICIAL PRECEDENTS ON THE ISSUE AND HAVE HELD THAT IF THE BLOCKS OF THE HOUSING PROJECT WHICH ARE COMPLETED ALSO FULFILS THE CONDITIONS OF 80IB(10), THEN THE ASSESSEE SHALL BE ELIGIBLE FOR DEDUCTIO N U/S 80IB(10) IN RESPECT OF SUCH COMPLETED BLOCKS ONLY. FOR THE SAKE OF READY REFERENCE, THE RELEVANT PARAGRAPHS OF THE ABOVE ORDER ARE REPRODUCED HEREUNDER: 24. AS FAR AS THE 4 BLOCKS ARE CONCERNED, ALL THE ABOVE, EXCEPT CONDITION NO.(IV) ARE FULFILLED AND AS FAR AS 3 BLOCKS ARE CONCERNED, BOTH THE CONDITIONS (IV) AND (V) ARE NOT FULFILLED. IN RESPECT OF SOME OF THE FLATS, THERE IS A VIOLATION OF CONDITION NO.(III) AS WELL. THEREFORE, IT IS TO BE EXAMINED, IF THE DEDUCTION IS NOT TO BE ALLOWED IN TOTO E VEN IF ONE OF THE ABOVE CONDITION IS NOT FULFILLED. 25. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. VANDANA PROPERTIES REPORTED IN (2013) 355 ITR 36 (BOM.) HAS CONSIDERED SIMILAR SITUATION WHEREIN THE ASSESSEE THEREIN HAD OBTAINED APPROVAL TO CON STRUCT FOUR BUILDINGS ON A PLOT OF LAND ADMEASURING 2.36 ACRES AND INTIMATION OF THE APPROVAL IN RESPECT OF THOSE BUILDINGS WAS GRANTED DURING THE YEARS 1993 - 96 AND FOLLOWING THE PERCENTAGE COMPLETION METHOD, THE ASSESSEE THEREIN HAD OFFERED TO TAX, THE IN COME EARNED FROM CONSTRUCTION OF BUILDINGS A, B, C & D FROM TIME TO TIME AND DEDUCTION U/S ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 4 80IB(10) OF THE ACT WAS ALSO CLAIMED AND ALLOWED. SUBSEQUENTLY, THE STATE GOVT. IN THE YEAR 2001, PERMITTED CONVERSION OF THE STATUS OF THE LAND AND THE ASSESSEE BEC AME ENTITLED TO CONSTRUCT ADDITIONAL BUILDING 'E' ON THE PLOT OF LAND AND ACCORDINGLY THE BUILDING PLAN WAS SUBMITTED BY THE ASSESSEE WHICH WAS APPROVED BY THE MUNICIPAL CORPORATION, SUBJECT TO VARIOUS CONDITIONS SET OUT THEREIN. THEREAFTER, THE COMMENCEME NT CERTIFICATE FOR CONSTRUCTION OF 'E' BUILDING WAS ISSUED ON MARCH 10,2003 AND IN THE RETURN OF INCOME FOR THE A.YS 2004 - 05 AND 2005 - 06, THE ASSESSEE ESTIMATED THE PROFIT FROM E BUILDING AND CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT. THE AO DISALLOWED THE CLAIM ON THE GROUND THAT THE APPROVAL FOR 'E' BUILDING WAS GRANTED ON 11TH OF OCTOBER, 2002, AS AN EXTENSION OF THE APPROVAL GRANTED FOR THE BUILDINGS IN A TO D AND THEREFORE, THE E BLOCK, BEING CONTINUATION OF A, B, C & D BUILDINGS, THE PROJECT MUST BE H ELD TO HAVE COMMENCED PRIOR TO OCTOBER 1, 1998, AND HENCE IS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. THE AO ALSO HELD THAT THE BUILDINGS WERE CONSTRUCTED IN A PLOT OF LAND ADMEASURING 2.36 ACRES OF THE LAND AND IF IT WAS PROPORTIONATELY DIVIDED BETWEEN ALL THE BUILDINGS, THEN THE LAND PERTAINING TO E BUILDING WOULD BE LESS THAN ONE ACRE AND HENCE, DEDUCTION U/S 80IB(10) COULD NOT BE ALLOWED. THE HON'BLE BOMBAY HIGH COURT HELD THAT THE BUILDING E WAS APPROVED BY THE LOCAL AUTHORITY ON OCTOBER 11, 2002 BY A SEPARATE APPROVAL AND THEREFORE, IT CONSTITUTED AN INDEPENDENT HOUSING PROJECT AND THAT SECTION 80IB(10) WHILE SPECIFYING THE SIZE OF THE PLOT OF LAND, DOES NOT SPECIFY THE SIZE OR THE NUMBER OF HOUSING PROJECTS THAT ARE REQUIRED TO BE UNDERTAKE N ON A PLOT HAVING A MINIMUM AREA OF ONE ACRE. THUS, THE HON'BLE HIGH COURT HAS HELD THAT IF THE ASSESSEE HAS CONSTRUCTED A BUILDING ON MINIMUM OF ONE ACRE, AS PER THE SANCTIONED PLAN AND OBTAINED THE COMPLETION CERTIFICATE, THE ASSESSEE IS ENTITLED TO DED UCTION U/S 80IB(10). 26. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. VOORA PROPERTY DEVELOPERS (P) LTD REPORTED IN (2015) 373 ITR 317 (MAD) WAS CONSIDERING THE CASE OF AN ASSESSEE, WHO RECEIVED APPROVAL OF THE LOCAL AUTHORITY IN RESPECT OF A COMP OSITE HOUSING SCHEME AND HAD OBTAINED SEPARATE PLAN PERMITS FOR SIX BLOCKS ON ONE ACRE AND 6.5 CENTS OF LAND. THE AO THEREIN ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 5 HAD DENIED THE DEDUCTION U/S 80IB(10) ON THE GROUND THAT THE ASSESSEE HAD DEVELOPED SIX SEPARATE PROJECTS IN ONE SINGLE PIECE OF LA ND MEASURING 1.065 ACRES AND THEREFORE, THE ASSESSEE DID NOT FULFIL THE ESSENTIAL CONDITIONS OF THE MINIMUM AREA OF ONE ACRE FOR A SINGLE PROJECT AS LAID DOWN U/S 80IB(10). THE HON'BLE HIGH COURT HELD THAT IF THE CONDITIONS SPECIFIED U/S 80IB ARE SATISFIE D, THEN THE DEDUCTION IS ALLOWABLE ON THE ENTIRE PROJECT AND SINCE THE ASSESSEE CONSTRUCTED SIX BLOCKS IN A LAND MEASURING 1 ACRE AND 6.5 CENTS, THE ASSESSEE WAS ENTITLED TO DEDUCTION. 27. THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S. SRIRAM CONSTRUCTIONS VS. DY.CIT IN ITA NO.1300/HYD/2011 VIDE ORDERS DATED29.04.2016 HAS ALSO CONSIDERED SIMILAR SITUATION AND HAS HELD THAT THE ASSESSEE WILL NOT AUTOMATICALLY LOOSE THE DEDUCTIO N U/S 80IB(10) FOR THE ENTIRE PROJECT BUT IS ELIGIBLE FOR PRO - RATA DEDUCTION AS ALLOWED BY THE CIT (A) IN THE SAID CASE. 28. THE COORDINATE BENCH OF THIS TRIBUNAL AT AHMEDABAD IN THE CASE OF PUSHKAR CONSTRUCTION CO VS. ITO REPORTED IN (2015) 43 ITR (TRIB. ) 293 (ITAT AHM.) HAS FOLLOWED THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. VANDANA PROPERTIES (SUPRA) AND ALSO THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. VOORA PROPERTY DEVELOPERS (P) LTD (SUPRA) TO HOLD THAT THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) OF THE ACT, IF THE ASSESSEE FULFILLS THE CONDITION OF CONSTRUCTING A HOUSING PROJECT ON A PLOT HAVING THE AREA OF MORE THAN ONE ACRE. IT WAS HELD THAT ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE, THERE COULD BE ANY NUMBER OF HOUSING PROJECTS AND SINCE THE HOUSING PROJECTS WERE APPROVED BY THE LOCAL AUTHORITY AND FULFILLED THE CONDITIONS SET OUT U/S 80IB(10), DEDUCTION COULD NOT BE DENIED TO ALL THE HOUSING PROJECTS. IT WAS ALSO HELD THAT SECTION 80IB(10) SPECIFIE D THE SIZE OF THE PLOT OF LAND BUT NOT THE SIZE OR THE NUMBER OF HOUSING PROJECTS THAT WERE REQUIRED TO BE UNDERTAKEN ON A PLOT HAVING MINIMUM AREA OF ONE ACRE. 29. IN THE CASE OF M/S. VISWAS PROMOTERS PVT. LTD (CITED SUPRA), THE HON'BLE MADRAS HIGH COURT HAS OBSERVED THAT THERE IS NO DEFINITION OF THE EXPRESSION 'HOUSING PROJECT' U/S 80IB OF THE ACT AND THAT SAID EXPRESSION ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 6 IS DEFINED UNDER EXPLANATION TO SECTION 80HHBA OF THE ACT. THE HON'BLE HIGH COURT, AFTER CONSIDERING THE SAID DEFINITION, HAS HELD AS UNDER: '13. SECTION 80IA OF THE ACT IS A SPECIFIC PROVISION WHICH DEALS WITH DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM INDUSTRIAL UNDERTAKINGS OR ENTERPRISES ENGAGED IN THE DEVELOPMENT OF INFRASTRUCTURAL FACILITIES SUCH AS ROADS, BRIDGES AND OTHER S TRUCTURE AS REGARDS THE GRANT OF DEDUCTION IN RESPECT OF DEVELOPMENT AND CONSTRUCTION OF A HOUSING PROJECT. SECTION 80IB IS A SPECIFIC PROVISION IN RESPECT OF PROFITS AND GAINS FROM UNDERTAKINGS ENGAGED IN DEVELOPING AND CONSTRUCTING HOUSING PROJECTS OTHER THAN INFRASTRUCTURE DEVELOPMENT UNDERTAKINGS. THUS, HOUSING PROJECTS CONSIDERED HEREIN UNDER SECTION 80IB REFERS TO ANY BUILDING OTHER THAN ROAD, BRIDGE OR OTHER STRUCTURE. THUS, GOING BY THE DEFINITION OF 'HOUSING PROJECT' TO MEAN THE CONSTRUCTION OF 'AN Y BUILDING' AND THE DEDUCTION UNDER SECTION 80IB OF THE ACT IS HUNDRED PER CENT OF THE PROFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR FROM SUCH HOUSING PROJECT COMPLYING WITH THE CONDITION, EACH BLOCK IN THE LARGER PROJECT BY NAME 'AG RINI' AND 'VAJRA', HAS TO BE TAKEN AS AN INDEPENDENT BUILDING AND HENCE A HOUSING PROJECT, FOR THE PURPOSE OF CONSIDERING A CLAIM OF DEDUCTION. SECTION 80IB(10) BEGINS BY STATING: THUS THE UNDERTAKING QUALIFYING FOR DEDUCTION UNDER SECTION 80IB OF THE ACT IS AN 'UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS' AND THE DEDUCTION IS IN RESPECT OF 'PROFITS AND GAINS DERIVED FROM' SUCH HOUSING PROJECT, SATISFYING THE CONDITIONS STIPULATED IN THE CLAUSE THEREIN. THUS, WITHIN A COMPOSITE HOUSING PROJECT, WH ERE THERE ARE ELIGIBLE AND INELIGIBLE UNITS, THE ASSESSEE CAN CLAIM DEDUCTION IN RESPECT OF ELIGIBLE UNITS IN THE PROJECT AND EVEN WITHIN THE BLOCK, THE ASSESSEE IS ENTITLED TO CLAIM PROPORTIONATE RELIEF IN THE UNITS SATISFYING THE EXTENT OF THE BUILT - UP A REA. 14. ON THE FACTS ADMITTED BY THE REVENUE, IN THE PROJECTS 'AGRINI' AND 'VAJRA', THERE ARE NUMBER OF FLATS WHICH ARE BELOW 1500 SQ.FT., AND THE RELEVANT BUILT - UP AREA REQUIREMENT IS SPECIFIED UNDER SECTION 80IB(10)(C) OF THE INCOME TAX ACT. THUS, THE BUILT - UP AREA IN SOME OF THE FLATS IN BOTH THESE PROJECTS ARE IN EXCESS OF 1500 SQ.FT., I.E., 32 FLATS IN AGRINI AND ONLY ONE FLAT IN VAJRA AND THAT THE ASSESSEE HAD NOT CLAIMED ANY DEDUCTION ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 7 ON THIS. WE HOLD THAT THE TRIBUNAL IS NOT CORRECT IN ITS VIEW, T HAT BY REASON OF THESE UNITS BEING IN EXCESS OF 1500 SQ.FT., THE ENTIRE CLAIM OF THE ASSESSEE IN RESPECT OF THESE TWO PROJECTS WOULD STAND REJECTED UNDER SECTION 80IB(10) OF THE INCOME TAX ACT. THUS, GOING BY THE DEFINITION OF 'HOUSING PROJECT' UNDER EXPLA NATION TO SECTION 80HHBA OF THE ACT AS REFERRED TO ABOVE AS THE CONSTRUCTION OF 'ANY BUILDING' AND THE WORDINGS IN SECTION 80IB(10) OF THE ACT, THE QUESTION OF REJECTION IN ENTIRETY OF THE PROJECT ON ACCOUNT OF ANY ONE OF THE BLOCKS NOT COMPLYING WITH THE CONDITIONS, DOES NOT ARISE. EVEN IN THE CASE OF EACH ONE OF THE BLOCKS, WHEREVER THERE ARE FLATS WHICH SATISFIED THE CONDITIONS PARTICULARLY OF THE NATURE STATED UNDER SECTION 80IB(10)(C) OF THE ACT, WE HAVE ALREADY UPHELD THE CASE OF THE ASSESSEE IN T.C.N OS.1348 AND 1349 OF 2007 DATED 10.10.2012 FOR GRANT OF RELIEF UNDER SECTION 80IB(10) OF THE ACT ON A PROPORTIONATE BASIS, BY FOLLOWING THE DECISION OF THE BOMBAY HIGH COURT REPORTED IN [2011] 333 ITR 289 (CIT VS. BRAHMA ASSOCIATES). THUS APPLYING THE DECIS ION OF THIS COURT IN T.C.NOS.1348 AND 1349 OF 2007 DATED 10.10.2012, WE HOLD THAT THE ASSESSEE IS ENTITLED TO SUCCEED BOTH ON THE PRINCIPLE OF PROPORTIONALITY AS WELL AS BY REASON OF THE CONSTRUCTION ON THE MEANING OF THE EXPRESSION 'HOUSING PROJECT' AS RE FERRING TO CONSTRUCTION OF ANY BUILDING AND THE WORDINGS IN SECTION 80IB(10) OF THE ACT. IN THE CIRCUMSTANCES, WE HOLD THAT THE MERE FACT THAT ONE OF THE BLOCKS HAVE UNITS EXCEEDING BUILT - UP AREA OF 1500 SQ.FT, PER SE, WOULD NOT RESULT IN NULLIFYING THE CL AIM OF THE ASSESSEE FOR THE ENTIRE PROJECTS. CONSEQUENTLY, IN RESPECT OF EACH OF THE BLOCKS, THE ASSESSEE IS ENTITLED TO HAVE THE BENEFIT OF DEDUCTION IN RESPECT OF RESIDENTIAL UNITS SATISFYING THE REQUIREMENT UNDER SECTION 80IB(10)(C) OF THE ACT. IN SO HO LDING, WE ALSO AGREE WITH THE DECISION OF THE BOMBAY HIGH COURT REPORTED IN [2012] 206 TAXMAN 584 (CIT V. VANDANA PROPERTIES), WHICH WAS DECIDED BY THE BOMBAY HIGH COURT ON SIMILAR LINES AS IN THE ASSESSEE'S CASE BEFORE US'. IN THE CASE BEFORE US, THE ASS ESSEE HAD ADMITTEDLY COMPLETED FOUR BUILDINGS I.E. G, H, I & K AND HAS ALSO FURNISHED THE OCCUPANCY CERTIFICATE DATED 29.3.2012. THEREFORE, THE ASSESSEE IS CLEARLY ELIGIBLE FOR DEDUCTION U/S 80IB(10) ON THE PROFITS EARNED FROM THESE BUILDINGS. ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 8 30. THE NEX T QUESTION TO BE CONSIDERED IS WHETHER THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) ON THE PROFITS FROM BLOCKS F, K & L FOR WHICH THE ASSESSEE HAS NOT OBTAINED THE OCCUPANCY CERTIFICATE FROM GHMC, HYDERABAD AS ON 30.03.2013 BUT HAS ALREADY SUBMITTED AN APPLICATION FOR THE SAME. IT IS SEEN THAT ACCORDING TO THE ARCHITECTS' CERTIFICATE, THE ASSESSEE HAS COMPLETED THE CONSTRUCTION IN ALL ASPECTS AND THAT THE ASSESSEE HAS SUBMITTED THE APPLICATION FOR ISSUANCE OF OCCUPANCY CERTIFICATE AS ON 30.3.2013 BY P AYING THE REQUISITE FEES. THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SAMUH AWAS LTD REPORTED IN (2015) 377 ITR 150 (BOM.) WHEREIN UNDER SIMILAR CIRCUMSTANCES, IT WAS HELD THAT WHERE THE ASSESSEE HAS APPLIED FOR THE ISSUANCE OF COMPLETION CERTIFICATE BY PAYING THE FEES WITHIN THE SPECIFIED TIME, THE DELAY BY THE MUNICIPAL CORPORATION IN ISSUANCE OF CERTIFICATE CANNOT BE ATTRIBUTED TO THE ASSESSEE AND THE ASSESSEE IS ENTITLED TO THE DEDUCT ION U/S 80IB(10). IN THE SAID CASE, THE ASSESSEE WAS SUPPOSED TO GET THE CERTIFICATE BEFORE 31ST MARCH, 2008 WHEREAS THE ASSESSEE HAS SUBMITTED APPLICATION ON 26.03.2008 AND ALSO DEPOSITED THE FEE FOR SUCH CERTIFICATE ON 31.3.2008 AND THE CERTIFICATE WAS I SSUED IN OCTOBER, 2008. BASED ON THESE FACTS, THE HON'BLE HIGH COURT HELD THAT THE DELAY IN OBTAINING THE CERTIFICATE CANNOT BE ATTRIBUTED TO THE ASSESSEE. THE ASSESSEE BEFORE US, HAS ALSO RELIED UPON THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL I N THE CASE OF SHRI M. SRINIVASA RAO VS. ACIT IN ITA NO.1049/HYD/2014 DATED 29.2.2016 WHICH IN TURN HAS FOLLOWED THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. HINDUSTAN SAMUH AWAS LTD (SUPRA) TO HOLD THAT WHERE THE ASSESSEE HAS APPLIE D FOR ISSUANCE OF OCCUPANCY CERTIFICATE AND THE MUNICIPAL AUTHORITIES DO NOT REFUSE TO ISSUE THE CERTIFICATE WITHIN 21 DAYS FROM THE DATE OF RECEIPT OF SUCH APPLICATION, THEN THE OCCUPANCY CERTIFICATE HAS TO BE PRESUMED TO HAVE BEEN ISSUED. IN THE CASE BEF ORE US ALSO, THE ASSESSEE HAS MADE AN APPLICATION ON 30.03.2008 AND WITHIN 21 DAYS THEREAFTER, THE MUNICIPAL AUTHORITIES DID NOT REFUSE THE OCCUPANCY CERTIFICATE AND THEREFORE, IT IS CLEAR THAT THE ASSESSEE'S CLAIM HAS NOT BEEN DENIED AND HENCE HAS TO BE D EEMED TO ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 9 HAVE BEEN ISSUED. IT IS ANOTHER FACT THAT THE ASSESSEE ITSELF MADE A FRESH APPLICATION AGAIN FOR ISSUANCE OF COMPLETION CERTIFICATE ON 28.05.2013, IN REPLY TO WHICH, THE MUNICIPAL CORPORATION VIDE LETTER DATED 13.06.2013 POINTED OUT CERTAIN DEFECT S, WHICH, IN OUR OPINION ARE NOT SUBSTANTIAL AND ESSENTIAL FOR CONSIDERING THE BLOCKS TO BE INCOMPLETE. THEY ARE ONLY PERIPHERAL WORKS, WHICH MAY BE PART OF THE HOUSING PROJECT BUT ARE NOT ESSENTIAL. THEREFORE, IN OUR OPINION, THE ASSESSEE IS ENTITLED TO T HE DEDUCTION U/S 80IB(10) EVEN FOR THE BLOCKS OF F, K AND L. THUS, ASSESSEE'S GROUNDS OF APPEAL NOS. 1 TO 5 ARE ALLOWED. 6. RESPECTFULLY FOLLOWING THE SAME, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMIN E WHETHER THE AREA OF BLOCKS A&D TOGETHER FULFILLS THE CONDITIONS OF 80IB(10) I.E. THE PROJECT SHOULD HAVE BEEN COMPLETED WITHIN THE STIPULATED PERIOD AND THE AREA SHOULD BE MORE THAN ONE ACRE AND NONE OF THE FLATS SHOULD EXCEED 1500 SQ. FT AND THE OCCUP ANCY CERTIFICATE HAS BEEN FURNISHED AND IF ALL THE ABOVE CONDITIONS ARE SATISFIED, THE DEDUCTION U/S 80IB(10) SHALL NOT BE DISALLOWED IN RESPECT OF THESE TWO BLOCKS. 6. IN THE RESULT, APPEALS OF THE ASSESSEE FOR BOTH THE AYS ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JULY, 2019 . SD/ - SD/ - ( S. RIFAUR RAHMAN ) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER D ATED : 17 TH JULY, 2019 . *GMV ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 10 COPY TO: 1. M/S GRANDEUR HOMES PVT.LTD., 4 TH FLOOR, ASHOK HITECH CHAMBER, 8 - 2 - 12/76/1/B/16, 17 & 18, ROAD NO.2, BANJARA HILLS, HYDERABAD 500 034. 2. ACIT, CIRCLE 2(2), SIGNATURE TOWERS, KONDAPUR, HYDERABAD . 3. COMMISSIONER OF INCOME TAX (A) - 2 , HYDERABAD. 4. PR.CIT - 2 , HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FI LE. // COPY // BY ORDER ITA NOS. 2134 & 2135/HYD./17 AY 2013 - 14, 2014 - 15 M/S GRANDEUR HOMES PVT.LTD., HYD. 11 1. DRAFT DICTATED ON 09 /07/19 2. DRAFT PLACED BEFORE THE AUTHOR 12 /07/19 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SRPS 6. KEPT FOR PRONOUNCEMENT 17/7/19 7. FILE SENT TO BENCH CLERK