ACIT, Pune V. Kewal Real Estate P. Ltd, Pune

ITA 2218/PUN/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1097 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-12-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NOS. 2028 & 2218/PN/2012 $& ' !(' / ASSESSMENT YEARS : 2008-09 & 2009-10 THE ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 11(1), PUNE ....... / APPELLANT )& / V/S. KEWAL REAL ESTATE PVT. LTD., 2413, KUMAR CAPITAL, EAST STREET, CAMP, PUNE - 411001 PAN : AAACK7491G / RESPONDENT ASSESSEE BY : SHRI RAJENDRA AGIWAL REVENUE BY : SHRI S.K. RASTOGI / DATE OF HEARING : 23-07-2015 / DATE OF PRONOUNCEMENT : 21-09-2015 * / ORDER PER VIKAS AWASTHY, JM : THESE TWO APPEALS BY THE REVENUE ARE AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE DATED 23-03- 2012 FOR THE ASSESSMENT YEAR 2008-09 AND ORDER DATED 29-05-2 012 FOR THE ASSESSMENT YEAR 2009-10, RESPECTIVELY. IN BOTH THE AP PEALS, THE REVENUE HAS IMPUGNED THE FINDINGS OF COMMISSIONER OF INCOM E TAX 2 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 (APPEALS) IN ALLOWING DEDUCTION U/S. 80IB(10) OF THE INCOME TA X ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) TO THE ASS ESSEE IN RESPECT OF HOUSING PROJECT KUMAR PRIMAVERA. THE REVENUE HAS CH ALLENGED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) BY RAISING FOLLOW ING GROUNDS IN THE APPEAL FOR THE ASSESSMENT YEAR 2008-09. 1. THE ORDER OF THE ID. COMMISSIONER OF INCOME-TAX(APP EALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE ID. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OF THE A SSESSEE'S CLAIM OF DEDUCTION OF RS.6,64,09,622/- IN RESPECT OF THE HOUSING PROJECT 'KUMAR PRIMAVERA' INSTEAD OF CONFIRMING THE ' SAID DISALLOWANCE. 3. THE ID. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN HOLDING THAT BUILDINGS NO. A-1 AND A-2 CONSTITUTED A SEPARA TE 'HOUSING PROJECT' INDEPENDENT OF BUILDINGS NO. A-3 TO A-8 AND FURTHER THAT AS THE BUILDINGS A-L AND A-2 HAD BEEN COMPLETED BEFORE 31.03.2009, T HE ASSESSEE WAS ENTITLED TO DEDUCTION U/S. 80IB(10). 4. THE ID. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN FAILING TO APPRECIATE THAT BUILDINGS A-3 TO A-8 FORMED PART OF THE SAME ONE HOUSING PROJECT WHICH INCLUDED BUILDINGS A-L TO A-2; AND AS THE ASSESSEE HAD NOT COMPLETED BUILDINGS A-3 TO A-8 BEFORE 31.03.2009, I T WAS NOT ENTITLED TO DEDUCTION U/S. 80IB(10) IN RESPECT OF THE 'KUMAR PR IMAVERA' PROJECT. 5. THE ID. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED FAILING TO APPRECIATE THAT THE PLAN IN RESPECT OF BUILDINGS A- 3 TO A-8 WERE A MERE REVISION OF THE ORIGINAL PLAN AND FURTHER THAT BUIL DINGS A-3 TO A-8 WERE MERELY IN THE NATURE OF ADDITIONAL CONSTRUCTIONS ON THE SAME PLOT OF 24902.715 SQ. MTRS. IN RESPECT OF WHICH THE ORIGINA L PLAN HAD BEEN SANCTIONED AND THE ORIGINAL COMMENCEMENT CERTIFICAT E HAD BEEN ISSUED ON 02.02.2005. 6. THE ID. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN FAILING TO CONSIDER THAT FOR THE PURPOSE OF COMPUTING THE LIMI TATION PERIOD U/S. 80IB(10), THE DATE OF FIRST APPROVAL HAS TO BE TAKE N INTO ACCOUNT AND AS PER EXPLANATION (I) TO SEC. 80IB(10), SUBSEQUENT AP PROVALS, IF ANY, WOULD DATE BACK TO THE FIRST APPROVAL; AND THAT BY APPLYI NG THE SAID EXPLANATION THE ASSESSEE HAD FAILED TO COMPLETE THE CONSTRUCTION OF BUILDINGS A-3 TO A-8 BEFORE 31.03.2009. 7. THE ID. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN HOLDING THAT SEPARATE RULE OF COMPLETION HAD TO BE APPLIED TO BUILDINGS A-3 TO A-8 AS DISTINGUISHED FROM A-L AND A-2 WHEREAS, IT IS UN AMBIGUOUS FROM SECTION 8016(10} THAT THE LIMITATION FOR CONSTRUCTI ON HAS TO BE COMPUTED 3 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 WITH REFERENCE TO THE APPROVAL GIVEN TO THE 'PROJEC T' AND NOT THE APPROVAL GIVEN FOR A 'BUILDING'. 8. THE ID. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN DECIDING THE APPEAL WITHOUT APPLYING EXPLANATION (I) OF SECT ION 80IB(10) TO THE CASE AT HAND AND ALSO BY INTERPRETING RULE OF COMPL ETION IN A MANNER NOT PROVIDED IN, NOR PERMITTED BY, THE STATUTORY PROVIS IONS. 9. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LD. COMMISSIONER OF INCOM E-TAX (APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER BE RES TORED. 10. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL. IDENTICAL GROUNDS HAVE BEEN TAKEN BY THE REVENUE IN AS SESSMENT YEAR 2009-10, EXCEPT FOR THE AMOUNT OF DEDUCTION. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORDS ARE : THE ASSESSEE IS A PROMOTER AND BUILDER. IN THE RETURN OF INC OME FOR THE IMPUGNED ASSESSMENT YEARS, THE ASSESSEE CLAIMED DEDUCTIO N OF RS.6,64,09,622/- IN ASSESSMENT YEAR 2008-09 AND RS.2,93,16,8 65/- IN ASSESSMENT YEAR 2009-10 U/S. 80IB(10) OF THE ACT IN RESP ECT OF ITS PROJECT KUMAR PRIMAVERA. THE ASSESSEE ALLEGEDLY DEV ELOPED THE AFORESAID PROJECT IN TWO PHASES. THE PHASE-I CONSIST OF TWO RESIDENTIAL BUILDINGS A6 AND A7, SUBSEQUENTLY RENAMED AS A1 AND A2 AND PHASE-II COMPRISES OF SIX RESIDENTIAL BUILDINGS A3 TO A8. THE CERTIFIC ATE OF COMMENCEMENT IN RESPECT OF PHASE-I WAS OBTAINED ON 02- 02-2005. THE PHASE-I OF THE PROJECT WAS APPROVED FOR PARKING + 7 FLOO RS, WHEREAS THE COMMENCEMENT CERTIFICATE IN RESPECT OF PHASE-II WAS OBTA INED ON 08-09-2006. AN APPROVAL WAS GRANTED FOR CONSTRUCTION O F PARKING + 9 FLOORS OF THE BUILDINGS. AT THE TIME OF GRANT OF COMMENCEME NT IN RESPECT OF PHASE-II I.E. ON 08-09-2006, THE PLAN FOR PHAS E-I WAS ALSO REVISED AND TWO MORE FLOORS WERE ADDED TO THE BUILDINGS A 1 AND A2. THE PLAN WAS REVISED FOR PHASE-I VIDE SAME COMMUNICATION IN WHICH THE APPROVAL FOR COMMENCEMENT IN RESPECT OF BUILDINGS IN PH ASE-II I.E. 4 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 A3 TO A8 WAS GRANTED BY PMC. THE ASSESSEE HAD OBTAIN ED COMPLETION CERTIFICATE IN RESPECT OF BUILDINGS IN PHASE-I ON 05-09-2008 AND IN RESPECT OF PHASE-II IN MARCH, 2011. DURING THE COURSE O F SCRUTINY ASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEAR 2008-0 9 THE ASSESSING OFFICER APPOINTED THE COMMISSION U/S. 131(1)(D) AND SOUGHT REPO RT FROM REGISTERED VALUER (CATEGORY-I) WITH RESPECT TO THE PROJE CTS. THE REGISTERED VALUER VIDE HIS REPORT DATED 29-11-2010 INTER ALIA OBSERVED THAT THE PLOT AREA OF THE PROJECT IS 6.15 ACRES, THE AR EA OF EACH FLAT IN THE BUILDINGS CONSTRUCTED IS LESS THAN 1500 SQ. FT., THERE ARE TOTAL 288 FLATS IN 8 BUILDINGS OF P + 9 STOREYS, THERE IS NO SHOPPING AREA, THE COMPLETION CERTIFICATE FOR 80 FLATS IS YET TO BE RECEIVED ALON G WITH FINAL COMPLETION CERTIFICATE FOR PLOT NO. 69. THE DATE OF FIRST COMM ENCEMENT IS 02-02-2005, THEREFORE, THE PROJECT WAS SUPPOSED TO BE COMP LETE ON OR BEFORE 31-03-2009, HOWEVER, COMPLETION CERTIFICATE IN RESPEC T OF 80 FLATS IS PENDING. THE ASSESSING OFFICER HELD THAT SINCE, THE ASSES SEE HAS NOT COMPLETED THE PROJECT ON OR BEFORE 31-03-2009 I.E. WITHIN 4 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE FIRST COMMENCEME NT CERTIFICATE WAS OBTAINED THE ASSESSEE HAS NOT COMPLIED WIT H THE BASIC CONDITION FOR CLAIMING DEDUCTION U/S. 80IB(10). THE ASSESSING OFFICER VIDE ORDER DATED 30-12-2010 REJECTED THE CLAIM OF THE D EDUCTION U/S. 80IB(10) FOR ASSESSMENT YEAR 2008-09. FOR IDENTICAL REAS ONS, THE CLAIM OF ASSESSEE U/S. 80IB(10) WAS DENIED BY THE ASSESSING OFFICE R IN THE ASSESSMENT YEAR 2009-10. AGGRIEVED BY THE ASSESSMENT ORDERS, THE ASSESSEE PREFE RRED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) FO R RESPECTIVE ASSESSMENT YEARS. THE COMMISSIONER OF INCOME TAX (APPEA LS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND APPRECIAT ION OF THE FACTS OF THE CASE, ACCEPTED THE CLAIM OF ASSESSEE AND ALLOW ED DEDUCTION U/S. 80IB(10) OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) 5 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 TREATED BUILDINGS A1 AND A2 AS SEPARATE HOUSING PROJECT IN PHASE-I AND THE REMAINING BUILDINGS A3 TO A8 IN PHASE-II AS SEPARATE PROJECT. NOW, THE REVENUE IS IN APPEAL AGAINST THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS) IN BOTH THE IMPUGNED ASSESSMENT YE ARS BEFORE THE TRIBUNAL. 3. SHRI S.K. RASTOGI REPRESENTING THE DEPARTMENT SUBMITTE D THAT THE ASSESSEE HAD CONSTRUCTED 8 BUILDINGS I.E. A1 TO A8 UN DER THE PROJECT KUMAR PRIMAVERA. THE COMMENCEMENT CERTIFICATE WAS ISSUED ON 02-02-2005. THE SAID COMMENCEMENT CERTIFICATE WAS IN RESPECT OF BUILDINGS A1 AND A2 FOR CONSTRUCTION OF P + 7 FLOORS. THERE AFTER, THE PLAN WAS REVISED AND THE CLEARANCE WAS SOUGHT FOR 6 MOR E BUILDINGS I.E. A3 TO A8 FOR P + 9 FLOORS. VIDE SAME REVISED PLAN 2 MORE FLOORS WERE ADDED TO BUILDINGS A1 AND A2. AS PER THE PROVISIONS OF S ECTION 80IB(10), THE ASSESSEE WAS REQUIRED TO COMPLETE THE PROJ ECT ON OR BEFORE 31-03-2009 TO BE ELIGIBLE TO CLAIM DEDUCTION UNDER THE PRO VISIONS OF SAID SECTION. IT IS EVIDENT FROM THE REPORT FURNISHED BY T HE REGISTERED VALUER THAT THE PROJECT WAS NOT COMPLETED EVEN ON 29- 11-2010, AS THE COMPLETION CERTIFICATE IN RESPECT OF 80 FLATS WAS STILL PENDING. THE ASSESSEE IN ORDER TO CIRCUMVENT THE PROVISIONS OF SECTIO N BIFURCATED THE PROJECT IN TWO PHASES I.E. PHASES-I COMPRISING OF BUILDINGS A 1 AND A2 AND PHASE-II COMPRISING OF BUILDINGS A3 TO A8. THE TOTA L AREA OF THE PROJECT WAS 24902.715 SQ. MTRS. THE ASSESSEE BIFURCATED THE AREA I.E. 4642 SQ. MTRS. FOR PHASE-I AND 12458 SQ. MTRS. FOR PHASE- II. THIS BIFURCATION MADE BY THE ASSESSEE IS AN AFTERTHOUGHT. THE RE WAS NO SUCH BIFURCATION AT THE TIME OF SEEKING APPROVAL FOR THE ALLE GED PHASE-I. THE FACT THAT THE BUILDINGS HAVE BEEN NUMBERED CONSECUT IVELY FROM A1 TO A8 ITSELF SHOWS THAT THEY ARE PART OF ONE SINGLE PROJE CT. A PERUSAL OF THE AUDITORS REPORT WOULD FURTHER MAKE IT CLEAR THAT TH ERE IS NO MENTION OF TWO SEPARATE PROJECTS. NO SEPARATE BOOKS O F ACCOUNT ARE 6 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 MAINTAINED FOR THE ALLEGED TWO SEPARATE PROJECTS. AN EXA MINATION OF BOOKS OF ACCOUNT DOES NOT SHOW THAT THERE ARE TWO PR OJECTS. LD. AR POINTED OUT THAT THE COMPLETION CERTIFICATE ISSUED IN RESP ECT OF FLATS DOES NOT MENTION THAT THE FLATS ARE IN PHASE-I AND PHAS E-II OF THE PROJECT. THERE IS NO DOCUMENT ON RECORD WHICH WOULD SU PPORT THE THEORY OF TWO PROJECTS PUT FORTH BY THE ASSESSEE TO C LAIM THE BENEFIT OF DEDUCTION U/S. 80IB(10) OF THE ACT. TO SUPPORT OF HIS SUB MISSIONS THE LD. DR PLACED RELIANCE ON THE DECISION OF CHENNAI BENCH OF TH E TRIBUNAL IN THE CASE OF ACIT VS. VISWAS PROMOTERS (P.) LTD. REPORTE D AS 126 ITD 263 (CHENNAI). THE LD. DR PRAYED FOR SETTING ASIDE THE IMPUG NED ORDERS AND RESTORING THE FINDINGS OF THE ASSESSING OFFICER. 4. ON THE OTHER HAND SHRI RAJENDRA AGIWAL APPEARING ON BEHALF OF THE ASSESSEE VEHEMENTLY SUPPORTED THE ORDER OF FIRST APPELLATE AUTHORITY. THE LD. AR SUBMITTED THAT ORIGINALLY THE PLAN W AS APPROVED FOR TWO BUILDINGS I.E. A6 AND A7, SUBSEQUENTLY RENAMED AS A 1 AND A2 TO BE CONSTRUCTED ON AREA MEASURING 4642 SQ. MTRS. TH E CERTIFICATE OF COMMENCEMENT WAS UNDISPUTEDLY GRANTED ON 02-02-2005 IN RESPECT OF AFORESAID TWO BUILDINGS. THE PLAN WAS APPROVED FOR P + 7 FLO ORS. THEREAFTER, IN THE SECOND PHASE, THE ASSESSEE OBTAINED C OMMENCEMENT CERTIFICATE ON 08-09-2006 IN RESPECT OF ANOTHER 6 BUILDINGS I.E. A3 TO A8 TO BE CONSTRUCTED ON AREA MEASURING 12458 SQ. MTRS. T HE SAID BUILDINGS WERE APPROVED FOR P + 9 FLOORS. THE ASSESSEE H AD ALSO OBTAINED REVISED PLAN FOR BUILDING A1 AND A2 IN PHASE-I AND ADDED TWO MORE FLOORS TO THE BUILDINGS A1 AND A2. THE TOTAL AREA OF PLOT ON WHICH THE PROJECT KUMAR PRIMAVERA WAS DEVELOPED MEASURED 24902.715 SQ. MTRS. THUS, THERE IS NO DISPUTE ABOUT THE TOTAL AREA ON WHICH THE ENTIRE PROJECT WAS DEVELOPED. THE ASSESSEE HAD OBTAINE D COMPLETION CERTIFICATE IN RESPECT OF BUILDINGS A1 AND A2 COMPRISES IN PH ASE-I ON 05-09-2008. THUS, THE ASSESSEE HAD COMPLIED WITH THE C ONDITION FOR 7 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 COMPLETION OF PROJECT TO BE ELIGIBLE TO CLAIM DEDUCTION U/S. 8 0IB(10) IN RESPECT OF BUILDING A1 AND A2 IN PHASE-I MUCH PRIOR TO TH E LAST DATE AS PRESCRIBED UNDER THE PROVISIONS OF SECTION I.E. 31-03-2009. THE 80 FLATS IN RESPECT OF WHICH THE COMPLETION CERTIFICATE WAS NOT OBTA INED AT THE TIME OF INSPECTION BY THE REGISTERED VALUER WAS IN RESPECT OF THE BUILDINGS COMPRISES IN PHASE-II, THE COMMENCEMENT OF WHICH HAD STARTED ON 08-09-2006. THE LAST DATE FOR OBTAINING COMP LETION CERTIFICATE IN RESPECT OF BUILDINGS IN PHASE-II WAS 31-03-2012. HOW EVER, THE ASSESSEE HAD OBTAINED COMPLETION CERTIFICATE IN RESPEC T OF FLATS IN BUILDINGS A3 TO A8 IN PHASE-II ON 31-03-2011, I.E. WELL BEFOR E THE LAST DATE AS MENTIONED IN THE ACT. 4.1 LD. AR SUBMITTED THAT THE DECISION RENDERED IN THE CA SE OF ACIT VS. VISWAS PROMOTERS (P.) LTD. (SUPRA) BY THE CHENNAI BENCH OF THE TRIBUNAL ON WHICH THE LD. DR HAS PLACED RELIANCE HAS BEEN R EVERSED BY THE HON'BLE MADRAS HIGH COURT VIDE JUDGMENT DATED 02-1 1-2012 REPORTED AS 214 TAXMAN 524 (MADRAS). IN SUPPORT OF HIS SUBMISSIONS, THE LD. AR SUBMITTED THAT THE PROJECT CAN BE COMPLETED IN PART AND THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10) ON THE P ART COMPLETION OF THE PROJECT IF ALL THE CONDITIONS LAID DOWN IN S ECTION 80IB(10) ARE SATISFIED. IN SUPPORT OF HIS SUBMISSIONS HE PLAC ED RELIANCE ON THE FOLLOWING CASE LAWS: I. CIT VS. VANDANA PROPERTIES, 76 DTR 363 (BOM HC); II. VISWAS PROMOTERS PRIVATE LIMITED VS. ACIT, 214 TAXMAN 524 (MADRAS HC)); III. RAHUL CONSTRUCTION VS. ITO, 51 SOT 192 (PUNE-TRIB.); IV. MUDHIT MADANLAL GUPTA VS. ACIT, 51 DTR 217 (MUM-TRIB.); V. ACIT VS. OCTAVE EXPORTS, 36 ITR (T) 1 (CHANDIGARH-TRIB.). 8 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVE OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BE LOW. WE HAVE ALSO CONSIDERED THE DECISIONS ON WHICH RELIANCE HAS BEEN P LACED DURING THE COURSE OF MAKING SUBMISSIONS. THE UNDISPUTED FACTS AS EMERGING FROM THE RECORDS ARE, THAT THE ASSESSEE HAD DEVELOPED HOUSING PROJECT KUMAR PRIMAVERA ON PLOT NO. 69, VADGAON SHEIR, PUNE ME ASURING 24902.715 SQ. MTRS. THE ASSESSEE HAD OBTAINED COMMENCE MENT CERTIFICATE ON 02-02-2005 IN RESPECT OF TWO BUILDINGS, INITIALLY NAMED AS A6 AND A7, WHICH WERE SUBSEQUENTLY, RENAMED AS A1 AND A2. THEREAFTER, THE ASSESSEE OBTAINED COMMENCEMENT CERTIFICAT E IN RESPECT OF BUILDINGS A3 TO A8 ON 08-09-2006. IN ALL THE ASSESSEE CONSTRUCTED 288 FLATS. IN ORDER TO AVAIL THE BENEFIT OF DEDUCTION U/S. 80IB(10), THE ASSESSEE WAS REQUIRED TO OBTAIN COMPLETION CERTIFICATE WITH IN 4 YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE HOUSING PROJEC T WAS APPROVED BY THE LOCAL AUTHORITY. THUS, IN THE PRESENT C ASE, THE LAST DATE FOR OBTAINING COMPLETION CERTIFICATE WAS 31-03-2009. T HE ASSESSEE OBTAINED COMPLETION CERTIFICATE IN RESPECT OF TWO BUILDINGS I.E . A1 AND A2 ON 05-09-2008. FOR THE REMAINING SIX BUILDINGS I.E. A3 TO A8 COMPLETION CERTIFICATE WAS OBTAINED ON 31-03-2011. THE AS SESSEE CLAIMED DEDUCTION U/S. 80IB(10) IN ASSESSMENT YEARS 2008-0 9 AND 2009-10. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER HAD DEPUTED REGISTERED VALUER TO REPORT ABOUT THE STATUS OF PROJECT. THE REGISTERED VALUER VIDE HIS REPORT DATED 29-11-2010 INTER ALIA OBSERVED THAT THE COMPLETION CERTIFICATE IN RESPECT OF 80 FLATS IS STILL PENDING. T HE ASSESSING OFFICER DENIED THE BENEFIT OF DEDUCTION U/S. 80IB(10 ) ON THE GROUND THAT THE ASSESSEE HAS NOT COMPLETED THE PROJE CT WITHIN THE TIME FRAME AS STIPULATED UNDER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT . 6. THE CONTENTION OF THE ASSESSEE IS THAT THE BUILDINGS A 1 AND A2 ARE IN PHASE-I AND BUILDINGS A3 TO A8 ARE PART OF PHASE- II OF THE PROJECT. 9 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 THE COMPLETION CERTIFICATE IN RESPECT OF PHASE-I WAS OBTAIN ED ON 05-09-2008, WELL BEFORE LAST DATE ON WHICH THE PROJECT SH OULD BE COMPLETED I.E. 31-03-2009. AS REGARDS BUILDING A3 TO A8 IN PHASE-II THE COMPLETION CERTIFICATE WAS OBTAINED IN MARCH, 2011 AN D AS PER THE PROVISIONS OF ACT, THE LAST DATE FOR OBTAINING COMPLETION CER TIFICATE WAS 31-03-2012. THE REVENUE HAS STRONGLY OBJECTED TO T HE BIFURCATION OF THE PROJECT IN PHASE-I AND PHASE-II. 7. THERE IS NO DISPUTE ABOUT THE DATE OF COMMENCEMENT AND COMPLETION OF THE PROJECT. IT IS ALSO AN UNDISPUTED FACT T HAT THE PROJECT KUMAR PRIMAVERA FLOATED BY THE ASSESSEE COMPLIES WITH ALL THE CONDITIONS ENVISAGED IN SECTION 80IB(10) WITH RESPECT TO AR EA OF PLOT, SIZE OF EACH FLAT, ETC. THE ONLY DISPUTE IS WHETHER THE A SSESSEE CAN BIFURCATE THE PROJECT IN TWO PARTS ON THE BASIS OF COMM ENCEMENT CERTIFICATE AND CLAIM DEDUCTION U/S. 80IB(10) ON THE SAME BY TREATING THEM AS SUB-PROJECTS UNDER THE LARGER PROJECT. 8. THE COMMISSIONER OF INCOME TAX (APPEALS) ALLOWED THE CLAIM OF ASSESSEE BY HOLDING AS UNDER: 3.3. . IT IS AN ESTABLISHED POSITION OF LAW N OW AS PER VARIOUS DECISIONS OF VARIOUS TRIBUNALS INCLUDING THE PUNE T RIBUNAL, THAT THE 'PROJECT' IS NOT DEFINED IN THE INCOME TAX ACT AND THEREFORE, IT HAS BEEN INTERPRETED LIBERALLY ON THE BASIS OF COMMERCIAL CO NSIDERATIONS AND COMMONLY UNDERSTOOD VIEWS. THE CLARIFICATION ISSUED BY THE CBDT VIDE DATED 4.5.2001 HAS BEEN OFTEN CONSIDERED FOR THIS I NTERPRETATION. AS PER THE LETTER F. NO. 205/3/2001/ITA-II DATED 4.5.2001 IT HAS BEEN STATED THAT 'THE ADDITIONAL HOUSING PROJECT ON EXISTING HO USING PROJECT SITE CAR QUALIFY AS INFRASTRUCTURE FACILITY U/S 10(23G) AND 80IB(10), PROVIDED IT IT TAKEN UP BY A SEPARATE UNDERTAKING HAVING SEPARATE BOOKS OF ACCOUNTS SO AS TO ENSURE THAT CORRECT PROFIT CAN BE ASCERTAI NED FOR THE PURPOSE OF 80IB AND ALSO TO IDENTIFY RECEIPTS AND REPAYMENTS O F LONG TERM FINANCES UNDER THE PROVISIONS OF SEC. 10(23G), SEPARATE FINA NCING ARRANGEMENTS AND ALSO, IF IT IS SEPARATELY FULFILS ALL OTHER STA TUTORY CONDITIONS LISTED IN SECTION 10(23G) AND 8018(10). WITH REGARD TO YOUR QUERY REGARDING THE 10 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 DEFINITION OF HOUSING PROJECT IT IS CLARIFIED THAT ANY PROJECT WHICH HAS BEEN APPROVED BY A LOCAL AUTHORITY AS A HOUSING PROJECT SHOULD BE CONSIDERED ADEQUATE FOR THE PURPOSE OF SECTION 10(23G) AND 80I B(10). IN VIEW OF THIS AND THE FACT THAT NO SPECIFIC DEFINITION EXIST S IN THE STATUTE THE COURTS HAVE CONSIDERED 'PROJECT' TO BE DEPENDENT ON COMMEN CEMENT, INDEPENDENT FULFILLMENT OF CONDITIONS BUILDING-WISE ETC. IN DIFFERENT JUDGMENTS VIZ. DCIT VS. BRIGADE ENTERPRISES (BANG) 119 TTJ 269; SAROJ SALES CORPORATION VS. ITO (MUM) 115 TTJ 485; SUBHAS H BAFNA VS. ITO (ITAT, PUNE); APOORVA PROPERTIES PVT. LTD. (ITAT, P UNE); VANDANA PROPERTIES 128 TTJ 89 (MUM) ETC. IN THIS CASE, IT I S A FACT THAT THE PLOT AREA IS 24,902.715 SQ. MTRS. AND IN THE FIRST COMME NCEMENT CERTIFICATE DATED 2.2.2005, ONLY TWO BUILDINGS WERE APPROVED AL ONG WITH LAYOUT FOR ROAD, OPEN AREA ETC. AND THERE WAS DEFINITELY NO ME NTION OF CONSTRUCTION OF OTHER BUILDINGS. AS PER THIS CERTIFICATE THE APP ELLANT HAS TOTAL AREA AVAILABLE FOR CONSTRUCTION AT 20,694.905 SQ. MTRS. FOR PERMISSIBLE TENEMENTS OF 655 NUMBERS, OUT OF WHICH ONLY 56 WERE PROPOSED IN THE FIRST COMMENCEMENT CERTIFICATE CONSUMING A TOTAL AR EA OF 3479.28 SQ. MTRS. THIS WAS SUBSEQUENTLY REVISED TO MAKE TWO ADDI TIONAL FLOORS IN BOTH THESE BUILDINGS (P+9). THERE IS NO DISPUTE THA T ALL THE CONDITIONS ARE SATISFIED IF BUILDINGS A-1 AND A-2 ARE CONSIDERED A S PART OF ONE PROJECT SEPARATE FROM THE REMAINING BUILDINGS. THEREFORE, I T IS APPARENT THAT THE APPELLANT IS ELIGIBLE FOR ITS CLAIM FOR DEDUCTION B Y TREATING BUILDING A-1 AND A-2 AS A SEPARATE HOUSING PROJECT. THE JUDGM ENTS OF APOORVA PROPERTIES AND ESTATE PVT. LTD., BRAHMA ASSOCIATE S VS. JCIT, DCIT VS. BRIGADE ENTERPRISES PVT. LTD., SAROJ SALES ORGANIZA TION VS. ITO, VANDANA PROPERTIES VS. ACIT SUPPORT THE ABOVE CLAIM. THE CL ARIFICATION ISSUED BY THE CBDT REFERRED TO ABOVE AND RELIED UPON BY THE A PPELLANT ALSO SUPPORTS THE ABOVE VIEW. THEREFORE, THE CLAIMS OF THE APPELLANT RAISED VIDE GROUND NO. 1 AND 2 ARE ALLOWED. 9. IT IS EVIDENT FROM DOCUMENTS THAT ORIGINALLY THE ASSES SEE SOUGHT APPROVAL OF BUILDINGS A6 AND A7, SUBSEQUENTLY RENAMED AS A1 AND A2 ON 02-02-2005. IT WAS AFTER THE TIME LAG OF 18 MONTHS THAT THE APPROVAL OF OTHER SIX RESIDENTIAL BUILDINGS WAS OBTAINED BY THE ASSESSEE ON 08-09-2006 FROM PMC, WHILE SEEKING INITIAL APPROVAL THERE WAS NO MENTION OF OTHER BUILDINGS. THE OBSERVATION OF THE ASSESSIN G OFFICER THAT THE SUBSEQUENT APPROVAL BY PMC IS NOT FRESH APPRO VAL BUT REVISED APPROVAL IN OUR OPINION DOES NOT CARRY WEIGHT. THE BUILDIN G PLAN HAS BEEN REVISED FOR BUILDINGS A1 AND A2 ONLY. AS REGARDS O THER BUILDINGS 11 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 I.E. A3 TO A8 IS CONCERNED THE BUILDING PLAN WAS APPROVED FO R THE FIRST TIME. IT IS NOT DISPUTED BY THE REVENUE THAT BUILDINGS A1 AND A2 IN PHASE-I WERE COMPLETE AND OCCUPATION CERTIFICATE WAS GRA NTED BY THE PMC IN RESPECT OF SAID BUILDINGS ON 05-09-2008. IN SO FAR AS BUILDINGS A3 TO A8 IN PHASE-II ARE CONCERNED, THE COMPLETION CERT IFICATE IN RESPECT OF ALL THE FLATS COMPRISING IN SAID BUILDINGS WERE GRANTED BY P MC UP TO MARCH, 2011, WHEREAS, THE LAST DATE FOR OBTAINING COMPLETION CERTIFICATE WAS 31-03-2012. THUS, THE ASSESSEE HAD OBTAINED COMPLE TION CERTIFICATES WELL WITHIN THE TIME FRAME MENTIONED IN THE PROVIS IONS OF SECTION 80IB(10) OF THE ACT IN RESPECT OF ALL THE BUILDINGS IN PHASE-I AND PHASE-II. 10. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS . VANDANA PROPERTIES (SUPRA) HAS HELD THAT DEDUCTION U/S. 80IB(10) SH ALL BE ALLOWED TO A HOUSING PROJECT CONSTRUCTED ON A PLOT OF LA ND HAVING MINIMUM AREA OF ONE ACRE IRRESPECTIVE OF THE FACT WHETHER ANY OTHER HOUSING PROJECTS ARE EXISTING ON THE SAID PLOT OR NOT. T HE RELEVANT EXTRACT OF THE JUDGMENT IS REPRODUCED HERE-IN-UNDER: 27. MOREOVER, PLAIN READING OF SECTION 80IB (10) D OES NOT EVEN REMOTELY SUGGEST THAT THE PLOT OF LAND HAVING MINIM UM AREA OF ONE ACRE MUST BE VACANT. THE SAID SECTION ALLOWS DEDUCTION T O A HOUSING PROJECT (SUBJECT TO FULFILLING ALL OTHER CONDITIONS) CONSTR UCTED ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE AND IT IS IMMATERIA L AS TO WHETHER ANY OTHER HOUSING PROJECTS ARE EXISTING ON THE SAID PLO T OF LAND OR NOT. IN THESE CIRCUMSTANCES, CONSTRUING THE PROVISIONS OF S ECTION 80IB (10) BY ADDING WORDS TO THE STATUTE IS WHOLLY UNWARRANTED A ND SUCH A CONSTRUCTION WHICH DEFEATS THE OBJECT WITH WHICH TH E SECTION WAS ENACTED MUST BE REJECTED. 28. APART FROM THE ABOVE, THE CENTRAL BOARD OF DIRE CT TAXES (CBDT) BY ITS LETTER DATED 4TH MAY 2001 ADDRESSED TO THE MAHA RASHTRA CHAMBER OF HOUSING INDUSTRY HAS STATED THUS: 12 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 THE UNDERSIGNED IS DIRECTED TO REFER TO YOUR LETTE R NO.MCHI:RSA:M:388/19799/3 DATED 1 ST JANUARY 2001 AND TO STATE THAT THE ADDITIONAL HOUSING PROJECT ON EXISTING HOUSING PROJECT SITE CAN QUALIFY AS INFRASTRUCTURE FACILITY UNDER SECTION 10(23G) AN D 80IB (10) PROVIDED IT IS TAKEN UP BY A SEPARATE UNDERTAKING, HAVING SEPAR ATE BOOKS OF ACCOUNTS, SO AS TO ENSURE THAT CORRECT PROFITS CAN BE ASCERTAINED FOR THE PURPOSE OF SECTION 80IB AND ALSO TO IDENTIFY RECEIP TS AND REPAYMENTS OF LONG TERM FINANCES UNDER THE PROVISIONS OF SECTION 10(23G), SEPARATELY FINANCING ARRANGEMENTS AND ALSO, IF IT SEPARATELY F ULFILLS ALL OTHER STATUTORY CONDITIONS LISTED IN SECTIONS 10(23G) AND 80(B(10). WITH REGARD TO YOUR QUERY REGARDING THE DEFINITION OF HOUSING P ROJECT, IT IS CLARIFIED THAT ANY PROJECT WHICH HAS BEEN APPROVED BY A LOCAL AUTHORITY AS A HOUSING PROJECT SHOULD BE CONSIDERED ADEQUATE FOR T HE PURPOSE OF SECTION 10(23G) AND 80IB(10)' 29. FROM THE AFORESAID LETTER OF CBDT, IT IS CLEAR THAT FOR THE PURPOSES OF SECTION 80IB(10) IT IS NOT THE MANDATE OF THE SECTI ON THAT THE HOUSING PROJECT MUST BE ON A VACANT PLOT OF LAND HAVING MIN IMUM AREA OF ONE ACRE AND THAT WHERE A NEW HOUSING PROJECT IS CONSTRUCTED ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE BUT WITH EXISTING H OUSING PROJECTS WOULD QUALIFY FOR SECTION 80IB(10) DEDUCTION. EVEN OTHERWISE, THE ARGUMENT OF THE REVENUE DOES NOT STAND TO REASON BE CAUSE, IN THE CITY OF MUMBAI WHERE THERE IS ACUTE SPACE CRUNCH, IT IS DIF FICULT TO FIND A VACANT PLOT HAVING MINIMUM AREA OF ONE ACRE AND EVEN IF FE W SUCH PLOTS ARE EXISTING IT CANNOT BE SAID THAT SECTION 80IB (10) D EDUCTION WAS INTENDED TO GIVE BENEFIT ONLY TO THE UNDERTAKINGS WHO CONSTR UCT HOUSING PROJECTS ON THOSE FEW PLOTS. THEREFORE, IT IS CLEAR THAT ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE, THERE CAN BE ANY NUMBER O F HOUSING PROJECTS AND SO LONG AS THOSE HOUSING PROJECTS ARE APPROVED BY THE LOCAL AUTHORITY AND FULFILL THE CONDITIONS SET OUT UNDER SECTION 80 IB(10), THE DEDUCTION THERE UNDER CANNOT BE DENIED TO ALL THOSE HOUSING P ROJECTS. SECTION 80IB(10) WHILE SPECIFYING THE SIZE OF THE PLOT OF L AND, DOES NOT SPECIFY THE SIZE OR THE NUMBER OF HOUSING PROJECTS THAT ARE REQ UIRED TO BE UNDERTAKEN ON A PLOT HAVING MINIMUM AREA OF ONE ACRE. AS A RES ULT, SIGNIFICANCE OF THE SIZE OF THE PLOT OF LAND IS LOST AND, THEREFORE , THE ASSESSEE SUBJECT TO FULFILLING OTHER CONDITIONS BECOMES ENTITLED TO SEC TION 80IB(10) DEDUCTION ON CONSTRUCTION OF A HOUSING PROJECT ON A PLOT HAVI NG AREA OF ONE ACRE, IRRESPECTIVE OF THE FACT THAT THERE EXIST OTHER HOU SING PROJECTS OR NOT. IN THESE CIRCUMSTANCES, THE DECISION OF THE TRIBUNAL I N REJECTING THE CONTENTION OF THE REVENUE REGARDING THE SIZE OF THE PLOT CANNOT BE FAULTED. 13 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 11. THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MUDH IT MADANLAL GUPTA VS. ACIT (SUPRA) GRANTED DEDUCTION U/S. 80 IB(10) TO THE ASSESSEE, WHERE THE ASSESSEE HAD FURNISHED COMPLET ION CERTIFICATE IN RESPECT OF THREE WINGS OF THE PROJECT OUT OF FOUR. THE TRIBUNAL OBSERVED THAT THE HOUSING PROJECT DOES NOT NECESSARIL Y HAVE TO BE VARIOUS GROUP OF BUILDINGS CONSTRUCTED ON A PARTICULAR LAN D BUT IT CAN ALSO BE A PARTICULAR BUILDING OR ANY BUILDING WHICH IS PART OF THE LARGE PROJECT. 12. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RAHUL CONSTRUCTION VS. ITO (SUPRA) WHILE DEALING WITH A SIMILAR DISPU TE HAS HELD AS UNDER: 9. TO DECIDE THE ABOVE ISSUE, IT IS NECESSARY TO D ECIDE FIRSTLY AS TO WHAT WOULD BE FIRST DATE OF APPROVAL OF THE HOUSING PROJ ECT BY THE PMC TO COMPUTE THE TIME LIMIT PRESCRIBED FOR COMPLETION OF THE PROJECT TO TAKE BENEFIT OF DEDUCTION U/S. 80 IB (10) OF THE ACT. TH ERE IS NO DISPUTE ON SOME MATERIAL FACTS THAT OUT OF 16 BUILDINGS IN THE HOUSING PROJECT OF THE ASSESSEE ONLY 11 BUILDINGS WERE COMPLETED WITHIN TH E PRESCRIBED TIME LIMIT UPTO 31ST MARCH 2008. THE LAY OUT PLAN IN RESP ECT OF ENTIRE COMPLEX WAS SANCTIONED BY PMC VIDE ORDER NO. DPO/45/D/646 D ATED 3.4.2003 AND THE BUILDING PLAN WAS SANCTIONED VIDE COMMENCEM ENT CERTIFICATE NO. 4269 DT. 29.4.2003. ADMITTEDLY, THE TERM HOUSI NG PROJECT HAS NOT BEEN DEFINED IN THE INCOME TAX ACT BUT IN THE CONTE XT OF DEDUCTION U/S. 80IB(10) AN EXPLANATION HAS BEEN PROVIDED BELOW CLA USE (A) TO SUBSECTION (10) TO SECTION 80 IB. FOR A READY REFER ENCE, THE SAID EXPLANATION IS BEING REPRODUCED HEREUNDER : (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAI NED MORE THAN ONCE, SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN A PPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUTHORITY. (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WH ICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS I SSUED BY THE LOCAL AUTHORITY. THE VERY READING OF ABOVE EXPLANATION ( I), IT MAKES CLEAR THAT FOR THE ELIGIBILITY OF THE DEDUCTION PROVIDED U/S. 80 IB (10) OF THE ACT, THE DATE ON WHICH BUILDING PLAN OF SUCH HOUSING PROJECT HAS BEEN FIRSTLY APPROVED BY THE LOCAL AUTHORITY WILL BE TREATED AS APPROVAL IN RESPECT OF THE HOUSING PROJECT. WHEN WE READ EXPLANATION (II) WITH EXPLANATION (I) IT 14 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 MAKES CLEAR THAT COMPLETION OF CONSTRUCTION OF SUCH BUILDING PLAN FIRST APPROVED BY THE LOCAL AUTHORITY WILL BE TAKEN THE D ATE OF COMPLETION OF CONSTRUCTION OF SUCH BUILDING PLAN WHEN COMPLETION CERTIFICATE HAS BEEN ISSUED BY THE LOCAL AUTHORITY. IN OTHER WORDS, IN C LAUSE (I) OF THE EXPLANATION, IT HAS BEEN MADE CLEAR THAT WOULD BE T HE HOUSING PROJECT, FIRST APPROVAL OF WHICH, BY THE LOCAL AUTHORITY WOU LD BE TAKEN AS STARTING POINT OF THE HOUSING PROJECT AND IN CLAUSE NO. (II) , IT HAS BEEN MADE CLEAR THAT WHAT WOULD BE THE COMPLETION CERTIFICATE IN RE SPECT OF SUCH HOUSING PROJECT ISSUED BY LOCAL AUTHORITY TO COMPUTE THE PR ESCRIBED TIME LIMIT FOR VERIFICATION OF ELIGIBILITY OF ASSESSEE FOR THE CLA IMED DEDUCTION. IN VIEW OF THE ABOVE EXPLANATION, WE FIND SUBSTANCE IN THE CON TENTION OF THE LD. A.R. THAT APPROVAL OF THE HOUSING PROJECT AND APPROVAL O F BUILDING PLAN ARE TWO DIFFERENT CONCEPTS. THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. BRIGADE ENTERPRISES (P) LTD. (SUPRA) HA S HELD THAT PLAN FOR DEVELOPMENT IS ONLY A WORK ORDER AND NOT FINAL PLAN SANCTIONED BY THE LOCAL AUTHORITY. FOR ANY PROJECT, THERE COULD NOT H AVE BEEN A PLAN WITHOUT SUBMISSION OF THE DETAILED BUILDING PLANS, BY THE A RCHITECT AND WHAT REQUISITE DETAILS REQUIRED TO BE SUBMITTED FOR APPR OVAL OF THE BUILDING PLANS BY THE LOCAL AUTHORITY. IN THE CASE OF SAROJ SALES ORGANIZATION VS. ITO (SUPRA), BEFORE MUMBAI BENCH, ALMOST SIMILAR FA CTS AS BEFORE US WERE THERE. THE COMMENCEMENT CERTIFICATE IN RESPECT OF SIX WINGS IN BLOCK N WAS SEPARATELY RECEIVED BY THE ASSESSEE AND ALL THE FLATS IN BLOCK WERE LESS THAN 1000 SQ.FT. IT WAS HELD BY THE TRIBU NAL THAT IT IS NOT UPON TO THE REVENUE TO INCLUDE BLOCK BC AS PART OF BLO CK N JUST TO DENY RELIEF TO THE ASSESSEE U/S. 80 IB(10). THE TRIBUNAL OBSERV ED THAT BLOCK BC WAS MEANT FOR HIGHER STRATA OF THE SOCIETY HAD BEEN KEPT SEPARATELY BY ASSESSEE IN ALL THE RESPECT, ASSESSEE HAD NOT CLAIM ED RELIEF U/S. 80IB IN RESPECT OF BLOCK BC . IN THE CASE OF MUDHIT MADAN LAL GUPTA VS. ACIT (SUPRA ) BEFORE THE MUMBAI BENCH, IT HAS BEEN HELD THAT THE HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VARIOUS GRO UP OF BUILDINGS CONSTRUCTED ON THAT PARTICULAR LAND, BUT IT CAN ALS O BE A PARTICULAR BUILDING OR ANY BUILDING WHICH IS PART OF A LARGE P ROJECT. IT HAS BEEN FURTHER HELD THAT WHATEVER PORTION OF THE HOUSING P ROJECT IS OTHERWISE FOUND TO BE ELIGIBLE HAS TO BE CONSIDERED AS A HOUS ING PROJECT FOR THE PURPOSE OF DEDUCTION U/S. 80 IB (10) OF THE ACT. SI MILAR VIEW HAS BEEN EXPRESSED BY MUMBAI BENCH OF THE TRIBUNAL IN THE CA SE OF VANDANA PROPERTIES VS. ACIT (SUPRA). 10. IN VIEW OF ABOVE DISCUSSION, WE COME TO THE CON CLUSION THAT FOR VERIFICATION OF ELIGIBILITY OF BENEFIT CLAIMED U/S. 80 IB (10) OF THE ACT BY THE ASSESSEE ON BUILDINGS A1 TO A5 IN ATUL NAGAR AND BUILDINGS B1 TO B6 IN RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LT D., THE ASSESSING AUTHORITY HAS TO VERIFY AS TO WHEN THE BUILDING PLA NS FOR THESE BUILDINGS 15 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 WERE FIRSTLY APPROVED BY THE LOCAL AUTHORITY AND TA KING THE SAID DATE OF APPROVAL A STARTING POINT, HE HAS TO VERIFY AS TO W HETHER THESE BUILDINGS WERE COMPLETED WITHIN THE PRESCRIBED TIME LIMIT I.E . 31ST MARCH 2008 ON THE BASIS OF THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT ISSUED BY THE PMC. WHEN WE EXAMINE THE FACTS OF THE PRESENT CASE UNDER THE ABOVE BACKGROUND, WE FIND THAT THE AUTHOR ITIES BELOW HAVE NOT DISPUTED THE FACT FURNISHED IN THIS REGARD BY THE A SSESSEE THAT UNDER THE PROJECT ATUL NAGAR CONSISTING OF BUILDINGS A1 TO A5, THE FIRST BUILDING PLAN FOR A TYPE WAS APPROVED BY THE PMC ON 29.4.200 3 VIDE COMMENCEMENT CERTIFICATE NO. 4269 (PAGE NO. 4 OF TH E PAPER BOOK). HOWEVER, ACTUAL CONSTRUCTION OF A TYPE BUILDING WAS EXECUTED AS PER THE REVISED PLAN VIDE NO. C.C. 4101/27/6/2003 (PAGE NO. 5 OF THE PAPER BOOK). THE SIZE OF THE PLOT ON WHICH THE A TYPE BUI LDING I.E. A1 TO A6 HAVE BEEN CONSTRUCTED IS 1,39,466 SQ.FT. THE PROJECT A T YPE BUILDING I.E. A1 TO A5 CONSISTS OF 360 RESIDENTIAL UNITS AND THE CONSTR UCTION HAS BEEN COMPLETED BETWEEN 10.1.2005 TO 31.8.2005 (PAGE NOS. 6 TO 9 OF PAPER BOOK). THE AUTHORITIES BELOW HAVE ALSO NOT DISPUTED THIS MATERIAL FACT THAT RESIDENTIAL UNITS HAS A MAXIMUM BUILT UP AREA OF 1500 SQ.FT. LIKEWISE, THESE MATERIAL FACTS THAT B GROUP BUILDIN GS IN RAHUL NISARG COOPERATIVE HOUSING SOCIETY LTD., HAVE BEEN CONSTR UCTED ON LAND AREA OF 138203 SQ.FT., HAS NOT BEEN DENIED BY THE AUTHORITI ES BELOW. THEY HAVE ALSO NOT DENIED THESE MATERIAL FACTS THAT THE FIRST BUILDING PLAN WAS SANCTIONED ON 29.4.2003 VIDE COMMENCEMENT CERTIFICA TE NO. 4269 ISSUED BY THE PMC (PAGE NO. 16 OF THE PAPER BOOK). THE OTHER MATERIAL FACTS LIKE ACTUAL CONSTRUCTION WAS EXECUTED AS PER THE REVISED PLAN SANCTION ON 20TH MARCH 2004 VIDE CC NO. 2225 (PAGE NO. 17), THE PROJECT CONSISTS OF 396 FLATS AND CONSTRUCTION OF THESE FLA TS HAVE BEEN COMPLETED ON 14.7.2006 AS PER THE COMPLETION CERTIFICATE ISSU ED BY THE PMC (PAGE NOS. 13 TO 18 OF PAPER BOOK) ARE NOT IN DISPUTE. TH E AUTHORITIES BELOW HAVE ALSO NOT DENIED THAT BUILT UP AREA OF EACH OF THESE FLATS DOES NOT EXCEED 1500 SQ.FT. IT IS ALSO NOT IN DISPUTE THAT B OTH THE PROJECTS ARE ENTIRELY A RESIDENTIAL PROJECT AND THERE IS NO COMM ERCIAL AREA THEREIN. UNDER THE ABOVE CIRCUMSTANCES, WE ARE OF THE VIEW T HAT THE ASSESSEE IS VERY MUCH ENTITLED TO THE CLAIMED DEDUCTION U/S. 80 IB (10) OF THE ACT ON THE BUILDINGS A1 TO A5 IN ATUL NAGAR AND BUILDING S B1 TO B6 IN RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LTD. THE ISSUE IS THEREFORE DECIDED IN FAVOUR OF THE ASSESSEE. WE THUS WHILE SETTING AS IDE THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE, DIRECT THE A.O TO A LLOW THE CLAIMED DEDUCTION U/S. 80 IB(10) IN QUESTION. THE RELATED G ROUNDS ARE ACCORDINGLY ALLOWED. 16 ITA NOS. 2028 & 2218/PN/2012, A.YS. 2008-09 & 2009-10 13. THUS, FROM THE FACTS OF THE CASE AND THE VARIOUS DEC ISIONS DISCUSSED ABOVE, WE CONCLUDE THAT THE ASSESSEE IS ELIGIBLE TO CLAIM DEDUCTION U/S. 80IB(10) ON ALL THE RESIDENTIAL BUILDINGS COMPRIS ING IN PHASE-I (A1 AND A2) AND PHASE-II (A3 TO A8). THE DATE O F COMPLETION OF PHASE-II SHALL BE RECKONED FROM THE DATE OF COMMENCEMEN T CERTIFICATE ISSUED BY PMC IN RESPECT OF BUILDINGS A3 TO A8. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), ACCORDINGLY, THE SAME IS UPHELD AND THE APPEALS OF THE DE PARTMENT ARE DISMISSED. 14. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON MONDAY, THE 21 ST DAY OF SEPTEMBER, 2015. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 21 ST SEPTEMBER, 2015 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-I, PUNE 4. ' / THE CIT-I, PUNE 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. / // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE