Jayant M. Lunawat, Pune V. ACIT, Cir.-3, Pune

ITA 229/PUN/2010

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9727 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 02-07-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: MANISH DESAIVIPIN GUJRATHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER , AND SHRI G.S.PANNU, ACCOUNTANT MEMBER. ITA.NO.229/PN/2010 & 1149/PN/2010 (ASSTT. YEAR : 2006-07 & 2007-08) JAYANT MANIKLAL LUNAWAT, 1206, B-22, LUNAWAT COURT, OPP: SAMBAHJI GARDEN, SHIVAJI NAGAR, PUNE 411005 .. APPELLANT VS. ACIT, CIRCLE-3, PUNE. .. RESPONDENT APPELLANT BY : SHRI MANISH DESAI/VIPIN GUJRATHI RESPONDENT BY : SHRI S.K.SINGH DATE OF HEARING : 12.07.2012 DATE OF PRONOUNCEMENT : 13.09.2012 ORDER PER SHAILENDRA KUMAR YADAV, JM : BOTH THESE APPEALS PERTAIN TO THE SAME ASSESSEE FO R A.Y. 2006-07 AND 2007-08 ON SIMILAR ISSUE. SO THEY ARE B EING DISPOSED OFF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA.NO.229/PN/2010 FOR A.Y. 2006-07 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THE CIT(A) ERRED IN UPHOLDING THE DISALLOWANCE OF RS.3,42,86,458 BY DENYING THE DEDUCTION CLAIMED BY THE APPELLANT UNDER SECTION 80-IB(10) OF THE ACT. 2. THE CIT(A) OUGHT TO HAVE HELD THAT THE BUILDINGS IN THE PROJECT AS APPROVED ON MARCH 26, 2004 AND FORMING PART OF T HE FINAL APPROVAL, WERE COMPLETED WITHIN THE TIME STIPULATED UNDER SECTION 80-IB(1) OF THE ACT. 2 3. THE CIT(A) FAILED TO APPRECIATE THAT BUILDING G AS FOUND IN THE FINAL APPROVAL WAS APPROVED ON 10 TH AUGUST 2006 WAS/COULD NOT HAVE BEEN CONTEMPLATED WHEN THE PROJECT WAS FIR ST APPROVED ON MARCH 6, 2004. 4. THE CIT(A) FAILED TO APPRECIATE THAT THOUGH BUILDIN G G (OLD) & H WAS A PART OF THE PROJECT AS INITIALLY APPROVED, THE SAME DID NOT FIND ANY PLACE IN THE FINAL APPROVAL. 5. THE CIT(A) OUGHT TO HAVE HELD THAT SINCE THE HOUSIN G PROJECT UNDER CONSIDERATION WAS FIRST APPROVED ON 26.03.200 4 IT SHOULD BE GOVERNED BY THE PROVISIONS AS APPLICABLE TO ASSESSMENT YEAR 2004-05. SUBSEQUENT CONDITIONS AS INTRODUCED BY FINANCE (NO.2) ACT, 2004 WHICH ARE NO T POSSIBLE OF COMPLIANCE SHOULD NOT BE THE BASIS FOR DENYING T HE APPELLANTS CLAIM FOR DEDUCTION UNDER SECTION 80IB( 10) OF THE ACT. 6. THE CIT(A) OUGHT TO HAVE HELD THAT ASSUMING WITHOUT ADMITTING THAT THE CONDITION IN SECTION 80IB(10)(II ) HAS NOT BEEN FULFILLED, THE APPELLANT SHOULD BE ALLOWED DED UCTION UNDER SECTION 80-IB(10) OF THE ACT IN RESPECT OF TH E PROFITS DERIVED FROM THE BUILDINGS WHICH WERE COMPLETED WIT HIN THE STIPULATED TIME. 7. THE CIT(A) ERRED IN UPHOLDING THE LEVY OF INTEREST UNDER SECTION 234A, 234B, 234C AND 234D OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF DEVELOPMENT AND CONSTRUC TION OF HOUSING PROJECTS. THE ASSESSING OFFICER ISSUED SHO W CAUSE NOTICE TO THE ASSESSEE IN WHICH RESULT OF THE SURVEY U/S.1 33A DATED 21.05.2008 WAS COMMUNICATED, INTERALIA STATED THAT IN RESPECT OF THE PROJECT PRAKRITI AT BALEWADI, PUNE, WHICH WAS I NITIALLY SANCTIONED BY PMC ON 09.02.2004, DETAILED BUILDING PLAN WERE APPROVED ALONGWITH COMMENCEMENT CERTIFICATE OF PMC DATED 26.03.2004. THEREFORE, THIS PROJECT WAS FIRST SANCT IONED BY PMC VIDE COMMENCEMENT CERTIFICATE DATED 26.03.2004 PLAC ED AT PAGE 1 OF PAPER BOOK ALONGWITH ENGLISH TRANSLATION ON PAGE S 2-4 OF PAPER 3 BOOK FILED ON BEHALF OF THE ASSESSEE. ACCORDING TO ASSESSING OFFICER, FOR THE PURPOSE OF CLAIMING DEDUCTION U/S.80IB(10), THE PROJECT SHOULD HAVE BEEN COMPLETED BY 31.03.2008 IN ACCORDA NCE WITH SECTION 80IB(10) OF THE ACT. IT WAS ALSO STATED BY THE ASSESSING OFFICER THAT THIS PROJECT PRAKRITI CONTAINED BUILD INGS A, B, C, D, E, F, G, H, AND I. HOWEVER, VIDE COMPLE TION CERTIFICATE DATED 14.03.2006, PMC ISSUED THIS FIRST COMPLETION CERTIF ICATE FOR BUILDINGS NO. A, B, C AND D, PLACED AT PAGE 25 OF THE PAPER BOOK WHILE ENGLISH TRANSLATION OF SAME HAS BEEN PLACED A T PAGE 26 & 27 OF PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. TH E SECOND COMPLETION CERTIFICATE FOR BUILDINGS NO. E AND F WAS ISSUED ON 07.11.2007. IT WAS FURTHER STATED THAT BUILDING G WAS NOT COMPLETED TILL DATE OF SURVEY, I.E., 21.05.2008. I T WAS ALSO OBSERVED BY THE ASSESSING OFFICER THAT IN STATEMENT ASSESSEE ADMITTED THAT BUILDING H WAS SUBMITTED FOR SANCTION. ASSESSING OFFICER ALSO POINTED OUT THAT BUILDING G WAS PART AND PARCEL O F PRAKRITI PROJECT WHICH HAD COMMON ENTRANCE, AMENITIES, ETC., AND THE REFORE, ASSESSEES EXPLANATION GIVEN AT THE TIME OF SURVEY THAT CLAIM U/S.80IB(10) WAS ALLOWABLE FOR BUILDINGS A, B, C, D, E, F AND I, SINCE BUILDINGS G AND H WERE NOT PART OF T HE PROJECT FOR DEDUCTION U/S.80IB(10) WAS NOT ACCEPTED. THE ASSES SING OFFICER MAINLY OBSERVED THAT BUILDING G WAS PART OF THE P ROJECT PRAKRITI AS IT WAS INCLUDED IN THE ORIGINAL SANCTION PLAN AND B UILDING PLAN APPROVAL. FINALLY THE ASSESSING OFFICER ASKED THE A SSESSEE AS TO WHY SECTION 80IB(10) SHOULD NOT BE DISALLOWED SINCE COM PLETION CERTIFICATE FOR BUILDINGS G AND H WERE NOT ISSU ED WITHIN THE STIPULATED TIME LIMIT OF 31.03.2008. THE STAND OF THE ASSESSEE HAS BEEN THAT WHILE FIRST BUILDING PLAN WAS SANCTIONED FOR PRAKRITI PROJECT CONTAINED BUILDINGS A, B, C, D, E , F AND G HAVING COMMENCEMENT CERTIFICATE DATED 26.03.2004. THIS PL AN WAS REDESIGNED WITH MAJOR MODIFICATIONS IN BUILDINGS WH EREIN A, B, C AND D, AND BUILDINGS E, F, G AND H WERE R ELOCATED WITH SANCTIONED HOUSING PROJECT AND WERE SANCTIONED AS M ULTI-STOREYED BUILDINGS. THIS PLAN WAS SANCTIONED ON 22.02.2005 PLACED AT PAGE NO.5 OF PAPER BOOK ALONGWITH ENGLISH TRANSLATION ON PAGE NOS. 6 TO 4 8 OF PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. O UT OF THESE BUILDINGS, A, B, C, D, E AND F WERE TAK EN UP FIRST FOR CONSTRUCTION ACTIVITY. THE ADDITIONAL PLAN FOR BUI LDING I WAS SANCTIONED ON 10.08.2006. IT WAS ALSO STATED THAT RELOCATED BUILDING G WAS APPROVED FOR FIRST TIME ON 31.03.2 007 WHICH WAS YET TO BE COMPLETED. BUILDING H WAS DELETED FROM THE PROJECT AS PER SANCTIONED PLAN AS ON 30.03.2007 AND IS SHOWN A S TO BE DEMOLISHED. AFTER EXPLAINING THE ABOVE, ASSESSEE R EQUESTED THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S.80IB(10) C ONSIDERING THE COMPLETION CERTIFICATES RECEIVED FOR BUILDINGS A, B, C AND D VIDE COMPLETION CERTIFICATE DATED 14.03.2006, AND COMPLE TION CERTIFICATES FOR BUILDINGS E AND F DATED 07.11.2007. THE AS SESSING OFFICER DID NOT ACCEPT THE ASSESSEES EXPLANATION IN ACCORD ANCE WITH THE SUBMISSIONS TO SHOW CAUSE NOTICE ISSUED AS MENTIONE D ABOVE IN WHICH SALIENT FEATURES NOTED U/S.133A WERE MENTIONE D. THE CLAIM OF DEDUCTION WAS THEREFORE DISALLOWED BY TAKING TOT AL INCOME AT RS.3,84,94,540/- AS ASSESSED INCOME. MATTER WAS CA RRIED BEFORE THE FIRST APPELLATE AUTHORITY WHO HAS CONFIRMED THE ORDER OF THE ASSESSING OFFICER THE SAME HAS BEEN AGITATED BEFOR E US. 3. BEFORE US, THE STAND OF THE ASSESSEE HAS BEEN TH AT INITIALLY ASSESSEES PROJECT WAS SANCTIONED ON 26.03.2004 WHE REIN BUILDING ACTIVITIES WERE COMMENCED VIDE CERTIFICATE NO.CC/23 41/03 ACCORDING TO WHICH ASSESSEE CONCEIVED 7 BUILDINGS N AMED AS TYPE G, TYPE A, TYPE B, TYPE C, TYPE D, TYPE E AND TYPE F FROM LEFT TO RIGHT. HOWEVER, ASSESSEE AGAIN HAD ANOTHER SANCTIO NED PLAN DATED 22.02.2005 WHICH WAS COMMENCED VIDE COMMENCEMENT CE RTIFICATE NO.CC/4347/04 HAVING BUILDINGS A, B, C, D, E F G AND H. THIS SECOND SANCTIONED PLAN HAD PROVISION FOR BUILD INGS FROM LEFT TO RIGHT TYPE A, TYPE B, TYPE C, TYPE D, TYPE E, TYPE F AND TYPE G, WITH A REMARK THAT TYPE H TO BE DEMOLISHED. ACCORD ING TO THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE, BUILDINGS M ENTIONED AS TYPE A, TYPE B, TYPE C AND TYPE D, WERE COMPLETED V IDE COMPLETION CERTIFICATE BCO/146264 DATED 14.03.2006 PLACED AT P AGE 25 OF THE PAPER BOOK ALONGWITH ENGLISH TRANSLATION OF SAME ON PAGES 26 & 27 5 OF PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. SU BSEQUENT TO THIS, ASSESSEE HAD OTHER SANCTIONED PLAN DATED 10.08.2006 VIDE COMMENCEMENT CERTIFICATE NO.CC/166006 HAVING FROM L EFT TO RIGHT TYPE I, A, B, C, D, E G AND H. THUS , TYPE I WAS PLACED IN PLACE OF ORIGINAL G. AGAIN THERE WAS SOME CHANGE IN THE BUILDING PLAN FOR THESE REMAINING 4 BLOCKS I, E, F, G , AND OTHER COMMENCEMENT CERTIFICATE WAS OBTAINED ON 31.03.2007 NUMBERED AS CC 48806 HAVING FROM LEFT TO RIGHT TYPE I, A , B, C, D, E, F AND G WITH CERTAIN MODIFICATIONS. ONCE MORE BUIL DING PLAN WAS MODIFIED AND SANCTIONED PLAN WAS OBTAINED ON 07.11. 2007 VIDE COMMENCEMENT CERTIFICATE CC/248107 HAVING FROM LEFT TO RIGHT BLOCKS MENTIONED AS TYPE I, A, B, C, D, E , F AND G AND CONSTRUCTIONS WERE CONTINUED. HOWEVER, ONLY 3 BLOC KS MENTIONED BY LD.AUTHORISED REPRESENTATIVE IN HIS CHART ANNEXU RE II WHEREIN TYPE I, TYPE E AND TYPE F WERE COMPLETED AND COMPLE TION CERTIFICATE OF THE SAME WAS OBTAINED ON 07.12.2007 NUMBERING BCO/6/OC/57. THIS SHOWS THAT INITIALLY ON LEFT HAN D SIDE ASSESSEE CONCEIVED TYPE G BLOCK WHICH WAS SHIFTED ON RIGHT H AND SIDE VIDE SANCTIONED PLAN DATED 22.02.2005 AND ASSESSEE TRIED TO RAISE TYPE G IN PLACE OF H BUT SAME WAS PLANNED TO BE DEMOLISH ED AS MENTIONED IN BUILDING PLAN DATED 22.02.2005 VIDE CO MMENCEMENT CERTIFICATE CC/4347/04 WHEREIN IT IS CLEARLY MENTIO NED THAT TYPE H BE DEMOLISHED. IT IS PERTINENT TO MENTION HERE THA T TYPE H WAS CONCEIVED TO BE RAISED IN THE AREA WHERE INITIALLY TYPE G WAS PLANNED. TYPE G WAS SHIFTED ON TO RIGHT HAND SIDE. THIS RIGHT HAND SIDE TYPE G BUILDING WAS NOT COMPLETED AT RELEVANT POINT OF TIME. HOWEVER, SEVEN BUILDINGS INITIALLY CONCEIVED WERE C OMPLETED ONE IN GROUP OF FOUR VIDE COMPLETION CERTIFICATE BCO 14626 4 DATED 14.03.2006 AND THEY WERE TYPE A, TYPE B, TYPE C, TY PE D, AND SUBSEQUENTLY VIDE COMPLETION CERTIFICATE NO.71207 V IDE COMPLETION CERTIFICATE NO.BCO/6/OC/57 ASSESSEE COMPLETED BUILD INGS I, E & F WHICH IS NOT IN DISPUTE. AT THE STAGE OF SECOND COM PLETION DATED 07.12.2007, THE TYPE G BUILDING WAS SHIFTED TO RIGH T SIDE HAS BEEN CONFUSED WITH CONCEIVED TYPE G BUILDING BY ASSESSIN G OFFICER WHICH WAS CONCEIVED BY ASSESSEE ON LEFT HAND SIDE. THE A SSESSING OFFICER 6 DID NOT APPRECIATE THE FACT THAT ASSESSEE HAS RELOC ATED TYPE G BUILDING ON RIGHT HAND SIDE INSTEAD OF LEFT HAND SI DE AS ORIGINALLY CONCEIVED. THE STAND OF THE ASSESSEE HAS NOT BEEN APPRECIATED THAT THE BUILDING TYPE G WHICH WAS CONCEIVED BY SANCTION BUILDING PLAN DATED 26.03.2004 VIDE COMMENCEMENT CERTIFICATE NO.C C/2341/03 WAS DROPPED AND SUBSEQUENTLY RELOCATED ON RIGHT SID E AS EVIDENT FROM COMPLETION CERTIFICATE CC/3430/04 DATED 22.02. 2005. REVENUE AUTHORITIES HAVE NOT APPRECIATED THE FACT T HAT ORIGINAL G HAS BEEN SUBSTITUTED BY TYPE I ON LEFT HAND SIDE AN D TYPE G HAS BEEN SHIFTED/RELOCATED ON RIGHT HAND SIDE DUE TO CH ANGE IN DEVELOPMENT PLAN VIDE ORDER DATED 18.09.2008 BY VIR TUE OF WHICH PROPOSED 24 METER RP ROAD THROUGH ASSESSEES LAND I N QUESTION WAS DERESERVED. THIS TYPE G HAS NOTHING TO DO WITH THE ORIGINAL G. ACCORDINGLY, THE CLAIM OF THE ASSESSEE SHOULD BE AL LOWED. THE LD. AUTHORISED REPRESENTATIVE ALSO SUBMITTED THAT ASSES SEE HAS NOT MADE A CLAIM OF RELOCATED G BLOCK SITUATED AT RIGHT HAND SIDE SO CLAIM OF THE ASSESSEE U/S.80IB(10) SHOULD BE ALLOWE D. 4. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ASSESSEE HAS NOT COMPLETED BUILDING G WHICH IS INTEGRAL PART OF THE ORIGINAL BUILDING PLAN SO THEY WERE JUSTIFIED IN DENYING THE DEDUCTION U/S.80IB(10). 5. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MA TERIAL ON RECORD, WE FIND THAT THE ASSESSEE IN ACCORDANCE WIT H THE PROVISIONS OF THE BOMBAY PROVINCIAL MUNICIPAL CORPORATIONS ACT (HEREINAFTER CALLED AS BPMC) APPLICABLE TO PUNE MUNICIPAL CORPOR ATION HEREINAFTER CALLED PMC, CONCEIVED THE IDEA FOR EREC TING SEVEN BUILDINGS ON AMALGAMATED PLOT BEARING SURVEY NO.15/ 4, 15/3/1, 15/3/2, 15/2, 15/5 AND 15/6 (HEREINAFTER REFERRED T O AS LAND). HE FILED THIS PROPOSAL ON 13.02.2004. PURSUANT TO THI S PROPOSAL, A COMMENCEMENT CERTIFICATE BEARING NO.CC/2341/03 WAS ISSUED TO THE ASSESSEE BY PMC ON 26.03.2004 FOR CONSTRUCTION OF SEVEN BUILDINGS IN ACCORDANCE WITH THE SANCTIONED LAY OUT PLAN AND THE SAID SEVEN BUILDINGS FOR THE PURPOSE OF IDENTIFICAT ION WERE MARKED 7 ON SAID PLAN FROM LEFT TO RIGHT AS TYPE G, TYPE A, TYPE B, TYPE C, TYPE D, TYPE E, AND TYPE F, AS INDICATED IN SAID PL AN. THE SAID PLAN SANCTIONED FOR ABOVE 7 BUILDINGS UNDERWENT REV ISION AND REVISED PLAN WAS SANCTIONED ON 22.02.2005 VIDE COMM ENCEMENT CERTIFICATE/BUILDING PLAN SANCTION CC/4347/04. IN THE SAID REVISED PLAN DATED 22.02.2005, ASSESSEE CONCEIVED BUILDINGS A TO H. SUBSEQUENT TO THIS, ASSESSEE EXECUTED THIS PLAN AND BUILDINGS TYPE A, TYPE B, TYPE C, TYPE D, WERE COMPLETED FOR WHICH COMPLETION CERTIFICATE NO.BCO/14/4264 WAS ISSUED ON 14.03.2006 WHICH IS NOT IN DISPUTE. MEANWHILE ON 31.12.2005 CONCERN, PLANN ING AUTHORITY WAS PLEASED TO APPROVE RP ROADS OF VILLAGE BALEWADI AND AS AN EFFECT OF WHICH 24 MT. WIDE RP ROAD WAS DELETED AND LAND WHICH WAS ORIGINALLY RESERVED FOR 24 MT. WIDE RP ROAD STO OD DERESERVED. THE SAID DEVELOPMENT PLAN WAS EVENTUALLY SANCTIONED BY GOVERNMENT OF MAHARASHTRA VIDE NOTIFICATION WHICH I S ATTACHED HEREWITH AS ANNEXURE 4, WHICH READS AS FOLLOWS: GOVERNMENT OF MAHARASHTRA URBAN DEVELOPMENT DEPARTMENT, MANTRALAYA, MUMBAI 400032. DATE: 18.09.2008 NOTICE NO.TPS-1807/39/CR-1017(A)/07/UD-13 THE GOVERNMENT IN URBAN DEVELOPMENT DEPARTMENTS NOTICE NO.TPS-1807/39/CR-1017(A)/07/UD-13 DATED 13.08.2008 REGARDING THE MODIFICATIONS OF SUBSTANTI AL NATURE AS EXCLUDED PARTS IN THE DRAFT DEVELOPMENT PLAN, PU NE (ADDITIONAL AREA) (BANER-BALEWADI, SECTOR-I) FOR IN VITING SUGGESTIONS/OBJECTIONS IS HEREBY WITHDRAWN. THE RE VISED NOTICE IS ISSUED SEPARATELY. BY ORDER AND IN THE NAME OF THE GOVERNOR OF MAHARASHTRA. ( SUDHAKAR NANGNURE ) DEPUTY SECRETARY, GOVERNMENT OF MAHARASHTRA 8 5.1. APPELLANT THEREAFTER APPLIED FOR SANCTION OF P LAN FOR ADDITIONAL 8 TH BUILDINGS, IN THE FORM OF SEPARATE HOUSING PROJECT ON ADDITIONAL PIECE OF LAND DUE TO DERESEVATION/CANCELLATION OF 2 4 MT. WIDE RP ROAD WHICH WAS SHOWN IN PLAN AS TYPE G BUILDING ON RIGHT HAND SIDE OF PLAN. THE PLAN FOR 8 TH BUILDING TYPE G WAS ALSO INCORPORATED IN SANCTION DATED 10.08.2006 FOR WHICH COMMENCEMENT CERTIFICATE NO.CC/1660/6 WAS SANCTIONED ALONGWITH TYPE I, TYPE E, TYPE F, WHICH WAS COMPLETED ON 07.12.2007 WHICH IS EVIDENT FROM THE COMPLETION CERTIFICATE NO.BCO/6/OC/57 WHEREIN BUILD ING TYPE I, TYPE E AND TYPE F WERE COMPLETED. TYPE G BUILDING CONCEIVED ON RIGHT HAND SIDE WAS NOT COMPLETED WHILE SECOND COMP LETION CERTIFICATE WAS GIVEN WITH REGARD TO BUILDING TYPE I, TYPE E AND TYPE F. 5.2. ABOVE DISCUSSION MAKES IT CLEAR THAT ASSESSEE COMMENCED CONSTRUCTION ON 26.03.2004 AT THE STRENGTH OF COMME NCEMENT CERTIFICATE NO.CC/2341/03 FOR 7 BUILDINGS AND COMPL ETED THE SAME IN TOTALITY ON 07.12.2007. THE COMPLETION OF 7 BUI LDINGS WAS IN TWO STAGES. COMPLETION CERTIFICATE DATED 24.03.2006 WA S ISSUED FOR 4 BUILDINGS MARKED AS TYPE A, B, C AND D AT THE STREN GTH OF SANCTION PLAN DATED 20.03.2004 AS SHOWN AS BUILDING NO.2345 IN ANNEXURE A TO THIS ORDER. COMPLETION CERTIFICATE DATED 07.1 2.2007 PLACED AT PAGE 29 OF THE PAPER BOOK WAS ISSUED IN RESPECT OF THE BALANCE 3 BUILDINGS SHOWN IN THE SANCTIONED PLAN DATED 07.12. 2007 AT TYPE I, TYPE E AND TYPE F BUILDING (SHOWN AS BUILDING NO S.1, 6 AND 7 IN ANNEXURE A), AND ASSESSEE HAS CLAIMED TO RECOGNISE ITS RECEIPTS IN THE SAME MANNER. IT IS PERTINENT TO MENTION HERE T HAT BUILDING 8 SUBSEQUENTLY MARKED AS G WAS SANCTIONED FOR THE FIR ST TIME ON 10.08.2006 AND WAS NOT COMPLETED TILL THE RELEVANT POINT OF TIME AND ASSESSEE HAS NOT CLAIMED DEDUCTION U/S.80IB(10) IN RESPECT OF THE 8 TH BUILDING TYPE G WHICH IS CLAIMED TO BE SEPARATE PR OJECT ITSELF. THE ASSESSEE CLAIMS TO HAVE MAINTAINED SEP ARATE BOOKS OF ACCOUNT FOR 8 TH BUILDING NAMED AS TYPE G. AS PER THE PROVISIONS O F SECTION 80IB(10) AS IT EXISTED FOR A.Y. 2004-05 REA DS AS UNDER: 9 80IB(10) THE AMOUNT OF PROFITS IN CASE OF AN UNDER TAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED B EFORE THE 31ST DAY OF MARCH, 2005 BY A LOCAL AUTHORITY, SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEA R RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING PROJECT IF, ( A ) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCTOBER, 1998; ( B ) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHIC H HAS A MINIMUM AREA OF ONE ACRE; AND ( C ) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP AREA OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNI T IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WI THIN TWENTY-FIVE KILOMETRES FROM THE MUNICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUA RE FEET AT ANY OTHER PLACE. 5.3. IN THE ABOVE PROVISION, THERE WAS NO STIPULATI ON TO THE PERIOD OF COMPLETION. UNDISPUTEDLY THE ASSESSEE HAS COMME NCED THE CONSTRUCTION ON OR AFTER 1 ST OCTOBER, 1998 BUT BEFORE 31 ST MARCH, 2005. IN FACT, THE ASSESSEE HAS COMMENCED HIS PROJ ECT ON 26.03.2005 VIDE COMMENCEMENT CERTIFICATE CC 2341/03 . AREA OF LAND IS NOT IN DISPUTE BECAUSE IT IS MORE THAN 1 AC RE. THE MAXIMUM AREA OF A RESIDENTIAL UNIT IS 1500 SQ.FT. I N PUNE. THESE ISSUES ARE NOT IN DISPUTE BEFORE US. THE HOUSING P ROJECT OF THE ASSESSEE AS ENVISAGED ON 26.03.2006 COMPRISES OF 7 BUILDINGS. THE ASSESSEE COMMENCED THE PROJECT ON 26.03.2004 AND CO MPLETED CONSTRUCTED AS PER REVISED PLAN IN TWO STAGES I.E., ON 22.02.2005 AND ON 07.11.2007 RESPECTIVELY. THEREFORE, ASSESSE E WAS ENTITLED FOR RELIEF U/S.80IB(10) VIS-A-VIS SEVEN BUILDINGS C OMPLETED IN TWO STAGES MENTIONED ABOVE. 5.4. HOUSING PROJECT HAS NOT BEEN DEFINED IN SECTIO N 80IB(10). THEREFORE, TO UNDERSTAND THE DEFINITION OF THE HOUS ING PROJECT, ONE HAS TO GO ON DICTIONARY MEANING OR ON VARIOUS JUDIC IARY PRONOUNCEMENTS ON THE ISSUE. TRIBUNAL IN THE CASE OF SAROJ SALES ORGANISATION VS. ITO (2008) 115 TTJ (MUMBAI) 485, H ELD AS UNDER: WHEREIN THE ASSESSEE HAVING COMPLETED THE CONSTRUC TION OF VARIOUS WINGS OF BUILDING UNDER APPROVED PLAN IN TW O DIFFERENT BLOCKS UNDER DIFFERENT CERTIFICATES OF COMMENCEMENT WAS ELIGIBLE FOR DEDUCTION U/S.80IB(10) IN RESPECT OF O NE BLOCK IN 10 RESPECT OF WHICH CLAIM FOR DEDUCTION WAS MADE AND W HICH SATISFIED THE REQUIREMENT OF SECTION 80IB(10), IT W AS HELD THAT CLAIM COULD NOT BE DENIED BY TWO BLOCKS ESPECIALLY WHEN 2 ND BLOCK HAS BEEN KEPT SEPARATE BY THE ASSESSEE AND FO R WHICH DEDUCTION U/S.80IB(19) WAS NOT CLAIMED. IN CASE BE FORE US, CLAIM FOR RESCHEDULED AND RELOCATED BLOCK G IS NOT SUBJECT MATTER BEFORE US AND EXCLUDING THE SAME, 7 BUILDING S AS CONCEIVED AND DISCUSSED AS ABOVE HAVE BEEN COMPLETE D IN TWO STAGES AS MENTIONED ABOVE. SO, THE ASSESSEE IS ENT ITLED FOR CLAIMING DEDUCTION U/S.80IB(10) IN RESPECT OF 7 TYP ES/BLOCKS COMPLETED IN TWO STAGES AS DISCUSSED ABOVE. 5.5. IN ACIT VS. VANDANA PROPERTIES ITA.NO.3633/PN/ 2009 AND 4361/PN/2010 REPORTED AS (2010) 128 TTJ (MUMBAI) UO 89, WHEREIN THE ASSESSEE HAVING CONSTRUCTED WING E AFTE R OBTAINED COMMENCEMENT CERTIFICATE IN 2002 AND 2003 THOUGH SI MILAR CERTIFICATE HAD BEEN OBTAINED FOR PRIOR TO 1998 IN RESPECT OF A, B, C & D WING, WHEREIN E WAS SEPARATE HOUSING PROJECT AN D SAME HAVING BEEN COMPLETED BEFORE 31.03.2005, ASSESSEE W AS HELD ENTITLED FOR DEDUCTION U/S. 80IB(10) IN RESPECT OF WING A. FROM THE ABOVE DISCUSSIONS IT IS CLEAR THAT 8 TH BUILDING RENAMED AS TYPE G SHOULD NOT BE CONFUSED WITH ORIGINALLY CONCEIVED TY PE G IN COMMENCEMENT CERTIFICATE DATED 26.03.2004 AS CLARIF IED ABOVE. IT IS PERTINENT TO MENTION HERE THAT ORIGINALLY ASSESSEE CONCEIVED TYPE G ON LEFT HAND SIDE SUBSEQUENTLY IT WAS RELOCATED ON RIGHT HAND SIDE AS TYPE G BUT SAME SHOULD NOT BE CONFUSED BECAUSE T HE LOCATIONS ARE DIFFERENT. INITIALLY IT WAS ON THE LEFT HAND S IDE SUBSEQUENTLY IT WAS SHIFTED TO RIGHT HAND SIDE. ASSESSEE HAS COMPL ETED CONSTRUCTION OF A, B, C AND D BUILDINGS VID E COMPLETION CERTIFICATE NO.BCO/14/6/264 DATED 14.03.2006 WHILE REMAINING E, F AND I WERE COMPLETED VIDE COMPLETION CERTIFIC ATE NO.BCO/6/OC/57 DATED 07.12.2007. ISSUE OF RELOCATE D TYPE G IS NOT BEFORE US. IN THESE CIRCUMSTANCES, ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80IB(10) IN RESPECT OF BUILDING TYPES A, B, C, D, E, F AND I, COMPLETED IN TWO STAGES AS DISCUSSED ABOVE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. 11 ITA.NO.1149/PN/2010 A.Y. 2007-08 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW TH E HONOURABLE COMMISSIONER OF INCOME-TAX(APPEALS)-II, PUNE ERRED IN CONFIRMING THE DISALLOWANCE OF DEDUCTION O F RS.2,02,47,344/- CLAIMED UNDER SECTION 80IB(10) OF THE INCOME TAX ACT 1961 WITHOUT APPRECIATING THE FACTS OF THE CASE IN PROPER PERSPECTIVE. THE APPELLANT HEREBY PRAYS THAT THE DEDUCTION UNDER SECTION 80IB(10) CLAIMED BY THE APP ELLANT MAY PLEASE BE GRANTED. 2. WITHOUT PREJUDICE TO THE FIRST GROUND OF APPEAL THA T THE APPELLANT IS ENTITLED TO THE CLAIM OF DEDUCTION, TH E APPELLANT IS PREFERRING THE FOLLOWING GROUND OF APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW TH E HONOURABLE COMMISSIONER OF INCOME TAX (APPEALS)-II, PUNE, ERRED NOT ALLOWING THE PROPORTIONATE DEDUCTION UNDE R SECTION 80IB(10) IN RESPECT OF THE PROJECT COMPLETED BEFORE 31 ST MARCH 2008. THE APPELLANT HEREBY PRAYS THAT THE PROPORTIO NATE DEDUCTION IN RESPECT OF PROJECT COMPLETED BEFORE 31 ST MARCH 2008 MAY PLEASE BE GRANTED. 3. THE HONOURABLE CIT(A) ERRED IN UPHOLDING THE LEVY O F INTEREST UNDER SECTION 234A, 234B, 234C AND 234D OF THE ACT. IT WAS POINTED OUT THAT ISSUE AT HAND IS SIMILAR T O ISSUE AS AROSE IN THE APPEAL FOR A.Y. 2006-07. FACTS BEING SIMILAR SO FOLLOWING SAME REASONING WE HOLD THAT ASSESSEE IS E NTITLED FOR CLAIM OF DEDUCTION U/S.80IB(10) AS PRAYED. THE ASSESSING OFFICER IS DIRECTLY ACCORDINGLY. 7. AS A RESULT BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED AS INDICATED. PRONOUNCED IN COURT ON 13.09.2012. SD/- SD/- ( G.S.PANNU ) ( SHAILENDRA KUMAR YAD AV ) ACCOUNTANT MEMBER JUDICIAL MEMBER GSPS PUNE, DATED THE 13 TH SEPTEMBER, 2012. 12 COPY OF THE ORDER IS FORWARDED TO: 1. THE ASSESSEE 2. THE ACIT, CIRCLE-3, PUNE. 3. THE CIT(A)-II, PUNE. 4. THE CIT CONCERNED. 5. THE DR B BENCH, PUNE. 6. GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE.