Income-tax Officer, V. M/s. Kundan Real Estate, Pune

ITA 2292/PUN/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6931 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 26-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RISHI V LODHA
• Keywords: Competent authority; Right to appeal; Revised return
• Section: 143(3); 133A; 80IB

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , ! ' , $ % BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO.2292/PUN/2014 ' ' / ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD 8(2), PUNE, PRATYAKSHAKAR BHAVAN, DR. AMBEDKAR MARG, NEAR AKURDI RAILWAY STATION, PRADHIKARAN, PUNE 411044. . / APPELLANT V/S M/S. KUNDAN REAL ESTATE, 206, CHADHA MANSION, PIMPIRI, PUNE. PAN : AAGFK5996F . / RESPONDENT / APPELLANT BY : SHRI RISHI V. LODHA / RESPONDENT BY : SHRI SUHAS KULKARNI ( / ORDER PER ANIL CHATURVEDI, AM : THIS APPEAL FILED BY THE REVENUE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) V, PUNE DT.15.09.2014 FOR THE ASSESSMENT YEAR 2010-11. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- 2.1 ASSESSEE IS A PARTNERSHIP FIRM STATED TO BE ENGAGED IN THE BUSINESS AS BUILDER AND DEVELOPER. ASSESSEE FILED ITS RETUR N OF INCOME FOR A.Y. 2010-11 ON 06.10.2010 DECLARING TOTAL INCOME OF / DATE OF HEARING : 09.03.2017 / DATE OF PRONOUNCEMENT: 22.03.2017 2 ITA NO.2292/PUN/2014 AY.NO.2010-11 RS.1,86,880/-. THE CASE WAS SELECTED FOR SCRUTINY AND TH EREAFTER ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT VIDE ORDER DT.25.03.2013 AND THE TOTAL INCOME WAS DETERMINED AT RS.85,84,720/- BY DENYING THE CLAIM OF DEDUCTION OF RS.83,97,838/- U/S 80IB(10) OF THE ACT. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A), WHO VIDE ORDER DT.15.09.2014 GRANTED SUBSTANTIAL RELIEF TO THE ASSES SEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APP EAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS : 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN DELETIN G THE DISALLOWANCE OF DEDUCTION U/S 80IB(10) WHEN THE HOU SING PROJECT UNDER CONSIDERATION WAS COMPLETED LATER THA N THE STATUTORY PERIOD ADMISSIBLE FOR COMPLETION OF PROJE CT AS PRESCRIBED IN SUB-CLAUSE (II) OF CLAUSE (A) TO SEC. 80IB (10) OF THE I.T ACT, 1961? 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN ACCEPTI NG THE DATE OF APPROVAL BY LOCAL AUTHORITY IN RESPECT OF H OUSING PROJECT KUNDAN REAL ESTATES AS 31.07.2004 EVEN TH OUGH THE PROJECT WAS FIRST APPROVED BY THE LOCAL AUTHORI TY ON 23.06.2003? 3. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN CONSIDE RING THE COMPLETION OF THE PROJECT BEFORE DUE DATE WHEN THE COMPLETION CERTIFICATE WAS NOT ISSUED BEFORE 31.03. 2008 AS PER THE PROVISIONS CONTAINED IN EXPLANATION (II) TO CLAUSE (A) OF SUB-SECTION OF SEC.80IB(10) OF THE I.T ACT? 4. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN IGNORIN G THAT THE DEDUCTION AND ALL COMPLIANCE REQUIREMENTS ARE TO BE EXAMINED IN RESPECT TO A HOUSING PROJECT AS UNDE RSTOOD BY THE LOCAL AUTHORITY WITHOUT REGARD TO THE OWNER/DEVELOPER OF THE PROJECT AT DIFFERENT STAGES OF DEVELOPMENT. 3. BEFORE US, AT THE OUTSET, LD.D.R. SUBMITTED THAT THOUGH REVENUE HAS RAISED VARIOUS GROUNDS BUT THE SOLE CONTRO VERSY IS WITH RESPECT TO ALLOWING DEDUCTION U/S 80IB(10) OF THE ACT. 3 ITA NO.2292/PUN/2014 AY.NO.2010-11 4. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTIC ED THAT ASSESSEE HAD UNDERTAKEN HOUSING PROJECT BY NAME AND STYLE KUNDAN REAL ESTATE AT PUNE WHICH CONSISTED OF BUILDING H AVING 126 FLATS AND 13 ROW HOUSES AND ASSESSEE HAD CLAIMED DEDUCTION OF RS.83,97,838/- U/S 80IB(10) OF THE ACT. AO NOTICED THAT THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT FOR A.YS. 2006-07, 2007-08 AND 2009-10 WAS DISALLOWED BY THE DEPARTMENT. AO NOTED THAT THE APPROVAL FOR PROJECT W AS GRANTED BY PCMC ON 23.06.2003 AND THE REVISED PLAN WAS APPROVE D ON 31.07.2004. HE WAS OF THE VIEW THAT AS PER THE PROVISION S OF SEC.80IB(10) EXPLANATION (A), WHEN THE APPROVAL IN RESPECT OF HOUSING PROJECT WAS OBTAINED MORE THAN ONCE, SUCH HOUS ING PROJECT SHALL BE DEEMED TO HAVE TO BE APPROVED ON THE DATE ON WHICH THE BUILDING PLAN WAS FIRST APPROVED BY THE LOCAL AUTHORITY. ACCORDING TO AO, SINCE THE FIRST PLAN WAS APPROVED BY T HE PCMC ON 26.03.2003 THE ASSESSEE SHOULD HAVE COMPLETED THE PR OJECT ON OR BEFORE 31.03.2008 FOR BEING ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. IN THE CASE OF ASSESSEE SINCE THE COMPLETION CERTIFICATE WAS ISSUED BY PCMC ON 31.03.2011, HE HELD THAT ASSESSEE WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF TH E ACT AND ACCORDINGLY DENIED THE CLAIM OF DEDUCTION. AGGRIEVED B Y THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A ) WHO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY FOLLOWING TH E DECISION OF TRIBUNAL IN ASSESSEES OWN CASE AND BY HOLDING AS UNDER : 6. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E AS WELL AS REPLY OF THE APPELLANT. IT IS SEEN THAT THE CLAIM OF THE APPELLANT 4 ITA NO.2292/PUN/2014 AY.NO.2010-11 U/S.80IB(10) OF INCOME-TAX ACT WAS ALLOWED BY ME IN A.Y. 2008- 09, FOLLOWING HON'BLE PUNE TRIBUNALS ORDER IN APPE LLANTS OWN CASE FOR A.Y. 2006-07 & 2007-08 PERTAINING TO THE S AME PROJECT. THE RELEVANT PORTION OF THE ORDER READS AS UNDER. 7. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CA SE AS WELL AS REPLY OF THE APPELLANT. IN THIS CASE, THE APPELLANT HAD ORIGINALLY MADE CLAIM U/S. 80IB(10) OF INCOME-T AX ACT AMOUNTING TO RS.85,06,7508/-. SUBSEQUENTLY, THE CL AIM WAS WITHDRAWN BY WAY OF FILING REVISED RETURN. THEREAFTER, DURING THE COURSE OF ASSESSMENT PROCEED INGS, THE APPELLANT REVIVED THE CLAIM. TECHNICALLY SPEAK ING NO SUCH CLAIM COULD HAVE BEEN MADE BEFORE ASSESSING O FFICER OTHERWISE THAN FILING REVISED RETURN OF INCOME AS H ELD BY HON'BLE SUPREME COURT IN THE CASE OF GOETZ INDIA LT D. VS. CIT 284 ITR 323 (SC). THE ASSESSING OFFICER HAD NOT TOUCHED THIS ASPECT IN THE ASSESSMENT ORDER. HOWEV ER, SINCE THE FETTER PUT BY HON'BLE SUPREME COURT IN TH E ABOVE CASE IS NOT APPLICABLE TO APPELLATE AUTHORITIES, TH E CLAIM OF THE APPELLANT CAN BE EXAMINED EVEN IF IT IS NOT SUP PORTED BY WAY OF FILING OF REVISED RETURN OF INCOME. IN T HIS CASE, IT IS SEEN THAT THE PRESENT ASSESSMENT YEAR I.E. A.Y. 2008-09 IS THE THIRD YEAR OF CLAIM U/S. 80IB(10) OF INCOME- TAX ACT. EARLIER THE CLAIM WAS MADE FOR A.Y. 2007-08 AND 200 8-09. FOR BOTH THE ASSESSMENT YEARS, THE CLAIM WAS DISALL OWED BY THE ASSESSING OFFICER WHICH WAS UPHELD AT THE LE VEL OF CIT(A) TOO. THE MATTER WENT UP BEFORE THE ITAT AND THE HON'BLE ITAT IN ITA NO.1216/PN/10 & 1057/PN/11 FOR A.Y. 2006-07 & 2007-08 DATED 26.06.2012, DECIDED TH E ISSUE IN FAVOUR OF THE APPELLANT. THE RELEVANT POR TION OF THE ITAT ORDER IS REPRODUCED AS UNDER : 10 ON THIS ASPECT, WE HAVE CAREFULLY CONSIDERED THE RIVAL STANDS. FROM THE RELEVANT PROVISIONS OF SECTION 80-IB(10) OF THE ACT, WHICH WE HAVE EXTRACTED IN THE EARLIER PART OF THIS ORDER, IT EME RGES THAT THE DATE OF APPROVAL OF THE PROJECT IS RELEVAN T TO ASCERTAIN THE PERMISSIBLE PERIOD OF COMPLETION OF CONSTRUCTION OR IN OTHER WORDS, THE PRESCRIBED CONDITION OF COMPLETION OF CONSTRUCTION OF THE PROJ ECT IS TO BE RECKONED FROM THE DATE OF APPROVAL BY THE LOCAL AUTHORITY. IN TERMS OF SUB-CLAUSE(I) AND (II ) OF CLAUSE (A) TO SECTION 80-IB(10) OF THE ACT, THE ASCERTAINMENT OF DATE OF COMPLETION OF CONSTRUCTION IS LIABLE TO BE DETERMINED WITH REFERENCE TO THE DA TE OF APPROVAL BY THE LOCAL AUTHORITY. THE EXPLANATIO N BELOW CLAUSE(A) SECTION 80-IB(10) OF THE ACT PRESCRIBES THAT IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THA N ONCE, SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY T HE LOCAL AUTHORITY. CLAUSE (II) OF THE EXPLANATION FU RTHER CLARIFIES THAT DATE OF COMPLETION OF CONSTRUCTION O F THE HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL 5 ITA NO.2292/PUN/2014 AY.NO.2010-11 AUTHORITY. CLAUSE (II) OF THE EXPLANATION FURTHER CLARIFIES THAT DATE OF COMPLETION OF CONSTRUCTION O F THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE O N WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY. ON THE STRENGTH OF CLAUSE(I) OF THE EXPLANATION, THE REVENUE CONTENDS THAT IN THIS CASE THE FIRST APPROVAL IS DATED 23.06.2003 AND IT IS WITH REFERENCE TO SUCH DATE, THE DATE OF COMPLETION OF CONSTRUCTION WITH REFERENCE TO SUB-CLAUSE (I) AND II) OF CLAUSE (A) SECTION 80-IB(10) OF THE ACT IS TO BE ASCERTAINED. IN OUR CONSIDERED OPINION, THE POSITION CANVASSED BY THE REVENUE MISSES A PERTINENT POINT AS WE PROCEED TO EXPLAIN. THE CLARIFICATION IN CLAUSE (I) OF THE EXPLANATION IS T O BE APPLIED IN A CASE WHERE IN RESPECT OF THE HOUSING PROJECT THE APPROVAL HAS BEEN OBTAINED MORE THAN ONCE. IN THE INSTANT CASE, THE MOOT POINT IS, CAN IT BE SAID THAT IN RESPECT OF THE HOUSING PROJECT IN QUESTION, HAS APPROVAL BEEN OBTAINED MORE THAN ONCE? IN ORDER TO ANSWER SUCH QUESTION, IT WOULD B E RELEVANT TO EXAMINE THE PROJECT WHICH HAS BEEN APPROVED BY PCMC ON 31.07.2004 AND FOR THAT MATTER, WE REFER TO PAGE 77 OF THE PAPER BOOK WHEREIN IS PLACED THE CERTIFICATE OF COMMENCEMENT OF CONSTRUCTION DATED 31.07.2004. AS PER THE SAID CERTIFICATE, THE SANCTION IS GRANTED FOR CONSTRUCTI ON ON SURVEY NO.61/2+3+4+5+6 OF PIMPLE SAUDAGAR, PIMPRI CHINCHIWAD MUNICIPAL CORPORATION/CITY SURVEY NO. 772 AS PER MAHARASHTRA STATE REGIONAL AND CITY PLANNING CODE YEAR 1966 SECTION 44 AND PROVISIONS OF MUMBAI MUNICIPAL CORPORATION CODE 1949 SECTION 253 AND 254. THE CORRESPONDING SANCTION ON THE BUILDING LAY-OUT PLAN OF EVEN DATE ALSO CONTAINS REFERENCE TO THE BUILDING LAY OUT S. NO. 61/2+3+4+5+6, C.T.S NO.772 & 773 PIMPLE SAUDAGAR, TAL. HAVELI, PUNE. NOW, WE MAY CONTRAST THIS WITH THE CERTIFICATE TO COMMENCE CONSTRUCTION DATED 23.06.2003 PLACED AT PAGES 63 TO 72 OF THE PAPER BOOK. CLEARLY, IN TERMS OF THE SAID CERTIFIC ATE PERMISSION FOR CONSTRUCTION IS ON SURVEY 61/2+3+5+6 OF PIMPLE SAUDAGAR, PIMPRI CHINCHIWAD MUNICIPAL CORPORATION/CITY SURVEY NO. 772 AS PER MAHARASHTRA STATE REGINAL AND CITY PLANNING CODE YEAR 1966 SECTION 44 AND PROVISIONS OF MUMBAI MUNICIPAL CORPORATION CODE 1949 SECTION 253 AND 254. THE CORRESPONDING SANCTION OF THE LAY-OUT PLAN OF EVEN DATE ALSO CONTAINS REFERENCE T O S.NO.61/2+3+5+6, C.T.S NO. 680, 681, 682 & 772, PIMPLE SAUDAGAR TAL. HAVELI, PUNE. THE AFORESAID CLEARLY SHOWS THAT THE HOUSING PROJECT UNDER CONSIDERATION REFLECTED BY THE SANCTION DATED 31.07.2004 IS DIFFERENT THAN THE PROJECT CONTEMPLATED UNDER PCMC SANCTION DATED 23.06.2003. THE LATER SANCTION WAS IN RELATION TO A LAND AREA OF 104R REFLECTED BY SURVEY NO. 61/2+3+4+5+6, WHEREAS THE FORMER WAS THE 6 ITA NO.2292/PUN/2014 AY.NO.2010-11 REFERENCE TO SURVEY NO. 61/2+3+5+6 CONSTITUTING 84R OF LAND ALONE. SECONDLY, THE FORMER SANCTION WAS AS PER THE PLAN FORMULATED BY THE EARLIER PERSON, I.E. M/S.GANESH CONSTRUCTIONS WHO HAD ULTIMATELY SOLD THE DEVELOPMENT RIGHTS IN SUCH LAND OF 84 R TO THE ASSESSEE. THE FOLLOWING CLAUSES OF THE AGREEMENT DATED 09.07.2004 WITH M/S.GANESH CONSTRUCTIONS SUPPORT THE POSITION CANVASSED BY THE ASSESSEE THAT THE CONSTRUCTION WAS NOT COMMENCED, RATHER THE PROJECT REFLECTED BY THE SANCTION DATED 23.06.2003 COULD NOT BE DEVELOPED BY THE ERSTWHILE HOLDER, NAMELY, M/S. GANESH CONSTRUCTIONS : AND WHEREAS THE PARTY OF THE FIRST PART- ASSIGNOR GOT THE BUILDING PLAN SANCTION FROM PIMPRI CHINCHIWAD MUNICIPAL CORPORATION UNDER COMMENCEMENT CERTIFICATE BEARING NO. DT. OBTAINED ULC ORDER FROM THE COMPETENT AUTHORITY, PUNE UNBAN AGGIOMERATION, ON 30.3.1999 IN CASE NO ULC/DESK-II/1999 AND ALSO OBTAINED N.A. ORDER BEARING NO.PRH/NA/SR/158/III/2003 DT. 24.07.2003 ; AND WHEREAS DUE TO OTHER BUSINESS ACTIVITIES, THE FIRST PART COULD NOT DEVELOP THE SAID PROPERTIE S AND AS SUCH INTENDED TO ASSIGN THE DEVELOPMENT RIGHTS IN PURSUANCE OF THE TERMS AND CONDITIONS OF THE AFORESAID DEVELOPMENT AGREEMENT; AND WHEREAS THE SECOND PART-ASSIGNEE APPROACHED THE ASSIGNOR WITH A PROPOSAL OF ACQUIRING THE DEVELOPMENT RIGHTS IN RESPECT OF THE SAID PROPERTY WHICH THE ASSIGNOR HAS ACCEPTED ON CERTAIN MUTUALLY AGREED TERMS AND CONDITIONS; AND WHEREAS, THE PARTIES HERETO ARE DESIROUS OF RECORDING THE AFORESAID TERMS AND CONDITIONS IN RESPECT OF THE ASSIGNMENT OF DEVELOPMENT RIGHTS BETWEEN THEM IN THE MANNER HEREINAFTER APPEARING; THEREFORE, IT IS THE ASSESSEE WHO ACQUIRED THE RIGH TS OF DEVELOPMENT AND AFTER HAVING ACQUIRED FURTHER LAND OF O.H 20 R OUT OF SURVEY NO. 61/4, AMALGAMATED THE TWO PLOTS AND SOUGHT SANCTION FOR HOUSING PROJECT, WHICH IS REFLECTED BY PCMC SANCTIONED DATED 31.7.2004. FACTUALLY, THERE IS NO MATERIAL ON RECORD TO SAY THAT THE SELLER M/S GANESH CONSTRUCTIONS HAD COMMENCED THE DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT AS SANCTIONED BY PCMC ON 26.3.2003. IN FACT, IT IS QUITE CLEAR THAT THE LAND OF 84 R WITH M/S.GANESH CONSTRUCTIONS WAS ACQUIRED BY THE ASSESSEE IN THE MONTH OF JULY, 2004 AND TILL THE DATE OF SUCH PURCHASE, THERE WAS NO CONSTRUCTION ACTIVITY STATED TO HAVE BEEN COMMENCED BY THE ERSTWHILE PERSON. AS A MATTER OF FACT, THE ASSESSEE FIRM ACQUIRED FURTHER LAND OF 20 R ON THE SAME DATE AND REVISED THE BUILDING LAY-OUT, WHICH WERE ORIGINALLY PREPARE D BY THE ERSTWHILE HOLDER OF RIGHTS AND THE PLAN SO REVISED (INCLUSIVE OF THE ADDITIONAL LAND OF 20R) G OT SANCTIONED BY THE PCMC ON 31.7.2004 ONLY. IT IS ONLY AFTER THAT DATE, THE ASSESSEE THUS COMMENCED 7 ITA NO.2292/PUN/2014 AY.NO.2010-11 THE DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT IN QUESTION. QUITE CLEARLY, THE PROJECT IN QUESTION IS QUITE DISTINCT AND SEPARATE FROM THE PROJECT REFLECTED BY THE PCMC SANCTION DATED 23.6.2003, IN VIEW OF THE ABOVE FEATURES, WHICH WE HAVE NOTED, THE ASSESSING OFFICER, IN OUR VIEW, HAS BEEN UNDULY INFLUENCED BY THE REMARK REVISED SANCTION CONTAINED IN PCMC APPROVAL DATED 317.2004. IN FACT, THE EXPLANATION TO SECTION 80- IB(10)(A) OF THE ACT PRESSED INTO SERVICE BY THE REVENUE REFERS TO THE APPROVAL GRANTED TO THE SAME HOUSING PROJECT MORE THAN ONCE AND THE SAID EXPLANATION IS NOT RELEVANT IN A CASE WHERE HE APPROVAL IS GRANTED TO DIFFERENT HOUSING PROJECTS. THE AFORESAID PROPOSITION IS IN THE LINE WITH THE FOLLOWING PRONOUNCEMENTS OF THE HON'BLE JURISDICTIONAL HELP COURT IN THE CASE OF CIT V. VANDANA PROPERTIES 19 TAXMANN.COM 316(BOM) : RELIANCE PLACED TO THE REVENUE ON THE EXPLANATION TO SECTION 80IB(10)(A) WHICH WAS INTRODUCED WITH EFFECT FROM 1 ST APRIL 2005 IS ALSO MISPLACED. WHAT THE SAID EXPLANATION CONTEMPLATES IS THAT WHERE THE APPROVAL IN RESPECT OF A HOUSING PROJECT IS GRANTED MORE THAN ONCE, THEN, THAT HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUTHORITY. FOR EXAMPLE, IN RESPECT OF A HOUSING PROJECT, THE ASSESSEE MAY SEEK AMENDMENT OF THE BUILDING PLAN AT SEVERAL STAGES OF THE CONSTRUCTION AND THE SAME MAYBE APPROVED. IN SUCH A CASE, THE EXPLANATION PROVIDES THAT FOR THE PURPOSE OF SECTION 80IB(10) THE HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE FIRST APPROVAL WAS GRANTED BY THE LOCAL AUTHORITY. THUS, THE EXPLANATION TO SECTION 80IB(10)(A) REFERS TO THE APPROVAL GRANTED TO THE SAME HOUSING PROJECT MORE THAN ONE AND THE SAID EXPLANATION WOULD NOT APPLY WHERE THE APPROVAL IS GRANTED TO DIFFERENT HOUSING PROJECT. IN THE PRESENT CASE, AS NOTED EARLIER, CONSTRUCTION OF E BUILDING CONSTITUTES AN INDEPENDENT HOUSING PROJECT AND, THEREFORE, THE DATE ON WHICH THE EARLIER HOUSING PROJECT HAVE ALSO BEEN MADE APPLICABLE TO THE HOUSING PROJECT IN QUESTION. 11. QUITE CLEARLY IN THE PRESENT CASE, FACTUALLY I T IS FOUND THAT THE PROJECT IN QUESTION REFLECTED BY THE SANCTION OF PCMC DATED 31.7.2004 IS DIFFERENT THAN THE PROJE CT INTENDED UNDER PCMC APPROVAL DATED 23.6.2003, WHICH IN ANY CASE HAS NOT FRUCTIFIED. THEREFORE, IN THIS MA NNER, THE EXPLANATION TO SECTION 80-IB(10) OF THE ACT CANNOT BE INVOKED SO AS TO RECON THE PERIOD OF COMPLETION OF CONSTRUCTION AS CONTAINED IN CLAUSE(I) OR (II) CLAU SE (A) TO SECTION 80-IB(10) OF THE ACT. IN THIS VIEW OF THE MATTER, IN OUR VIEW, THE APPELLANT IS JUSTIFIED IN ASSERTING T HAT IT COMMENCED DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT ON 31.7.2004 AND NOT ON 23.6.2003 AND 8 ITA NO.2292/PUN/2014 AY.NO.2010-11 ACCORDINGLY, THE LAST DATE FOR COMPLETION OF CONSTR UCTION HAS TO BE CALCULATED AS PER SUB-CLAUSE(II) OF CLAUS E(A) TO SECTION 80-IB(10) OF THE ACT IN TERMS OF WHICH THE ASSESSEE IS REQUIRED TO COMPLETE THE CONSTRUCTION BY 31.3.20 09. 12. BEFORE PARTING, WE MAY REFER TO THE ISSUE OF DEVELOPMENT CHARGES LEVIED BY PCMC IN THIS CASE, ON THE BASIS OF WHICH IT SOUGHT TO BE CANVASSED THAT THE L ATTER SANCTION DATED 31.7.2004 HAS BEEN CONSIDERED BY PCM C MERELY A REVISION OF EARLIER ONE, BECAUSE THE DEVEL OPMENT CHARGES PAID ON A LATTER DATE IS ONLY RS. 11,819/- AS AGAINST PAYMENT OF RS.2,01,150/- IN RESPECT OF THE FIRST PLAN. SECONDLY, IT IS ALSO CANVASSED THAT IN THE A GREEMENT ENTERED INTO BY THE APPELLANT WITH THE BUYER, IT CO NTAINS REFERENCE TO THE PCMC SANCTION OF 23.6.2003 ALSO. ON THESE ASPECTS, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE SAME ARE GOVERNED BY THE REQUIRE MENTS OF THE LOCAL LAWS AND ARE NOT RELEVANT FOR THE PRES ENT PURPOSE. IN OUR CONSIDERED OPINION, BOTH THESE ASP ECTS ARE NOT DETERMINATIVE OF THE QUESTION BEFORE US. AS PE R RELEVANT PROVISIONS OF SECTION 80IB(10) DEDUCTION I S ALLOWABLE IN THE CASE OF AN UNDERTAKING ENGAGED IN DEVELOPING AND BUILDING HOUSING PROJECTS. IF SUCH UNDERTAKING MEETS WITH THE CONDITION PRESCRIBED IN THE SECTION. IN THE PRESENT CASE, ASSESSEE FIRM IS SUC H AN UNDERTAKING WHICH HAS UNDERTAKEN THE DEVELOPMENT AN D CONSTRUCTION OF THE HOUSING PROJECT AT PIMPLE SAUDA GAR, PIMPRI, TAL. HAVELI, DIST, PUNE. THE STATED OBJECT IONS OF THE REVENUE, IN OUR VIEW, ARE NOT GERMANE TO SUPPORT IT S STAND QUA THE DATE OF COMPLETION OF CONSTRUCTION ENVISAGE D IN CLAUSE(A) SECTION 80-IB(10) OF THE ACT. 13. APART THEREFROM, THE ASSESSING OFFICER HAS ALSO REFERRED TO STATEMENT OF A PARTNER OF THE ASSESSEE RECORDED DURING THE COURSE OF A SURVEY ACTION UNDER SECTION 133A OF THE ACT. AS PER THE ASSESSING OFFICER, THE PARTNER WAS QUESTIONED TO THE EFFECT THAT THE ASSESSEE WAS NOT ENTITLED TO DEDUCTION UNDER SECTION 80-IB(10) 80-IB(10) OF T HE ACT BECAUSE THE FIRST PLAN WAS APPROVED ON 23.6.2003 AN D THE PROJECT HAS NOT BEEN COMPLETED BEFORE 31.3.2008 AS PER SUB-CLAUSE(I) SECTION 80-IB(10) OF THE ACT. THE AS SESSING OFFICER POINTED OUT THAT IN THE ANSWER TO SUCH QUES TION, THE PARTNER WAS READY TO PAY TAX ON SUCH AMOUNT AND, THEREFORE, IT IS SOUGHT TO BE MADE OUT THAT THE ASS ESSEE ADMITTED THAT ITS CLAIM WAS UNTENABLE. IN OUR CONSI DERED OPINION, THE AFORESAID SITUATION CANNOT BE A GROUND TO DECIDE THE MERITS OF THE ISSUE. IN ANY CASE, THE A SSESSEE HAD CLAIMED THE DEDUCTION UNDER SECTION 80-IB(10) O F THE ACT IN THE RETURN OF INCOME FILED AND BEING AN ISSU E INVOLVING A POINT OF LAW, THE SAME IN OUR CONSIDERE D OPINION IS LIABLE TO BE DECIDED IN VIEW OF THE PREV AILING LEGAL POSITION AND NOT AS UNDERSTOOD BY THE ASSESSE E AT CERTAIN POINT OF TIME ALONE. MOREOVER EVEN THE ANS WER OF THE PARTNER WHICH HAD BEEN REFERRED BY THE ASSESSIN G OFFICER ALSO CONTAINS AN OBSERVATION THAT THE READI NESS TO PAY THE TAX WAS SUBJECT TO THE RIGHT TO APPEAL. TH IS ITSELF SHOWS THAT THE ASSESSEE AT NO STAGE HAD GIVEN UP IT S RIGHT 9 ITA NO.2292/PUN/2014 AY.NO.2010-11 TO CLAIM DEDUCTION UNDER SECTION 80-IB(10) OF THE A CT. THEREFORE, THIS ASPECT OF THE MATTER, IN OUR VIEW, IS ALSO NOT GERMANE TO DECIDE THE CONTROVERSY IN QUESTION. 14. CONSIDERED THE AFORESAID DISCUSSION, IN OUR VIE W, THE STAND OF THE ASSESSING OFFICER AS MANIFESTED IN THE ASSESSMENT ORDER IN ORDER TO DENY ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80-IB(10) OF THE ACT IS NOT RIGHT AND IS ACCORDINGLY TURNED DOWN. IN THE RESULT, THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS SET ASI DE THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE UNDER SECTION 80-IB(10) OF THE ACT AS PER LAW. THUS THE ASSESSEE SUCCEEDS ON THIS GROUND OF APPEAL . 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2006-07 IS ALLOWED. 16. THE ISSUE, FACTS AND CIRCUMSTANCES OF THE CASE FOR THE ASSESSMENT YEAR 2007-08 BEING IDENTICAL TO THOS E FOR THE ASSESSMENT YEAR 2006-07, OUR FINDINGS GIVEN ABO VE WOULD MUTATIS MUTANDIS APPLY TO THE ASSESSMENT YEAR 2007-08 ALSO. IN THIS VIEW OF THE MATTER, THE ORDE R OF THE COMMISSIONER OF INCOME-TAX(APPEALS IS SET ASIDE THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE UNDER SECTION 80-IB(10) OF THE ACT AS PER LAW. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR T HE ASSESSMENT YEAR 2007-08 IS ALLOWED. 8. SINCE, THE DEDUCTION U/S. 80IB(10)OF INCOME-TAX ACT IS CLAIMED FOR A.Y. 2008-09 IN RESPECT OF THE SAME PRO JECT ON THE SAME SET OF FACTS, THEREFORE FOLLOWING THE DECISION OF HON'BLE ITAT, THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE CLAI M OF DEDUCTION U/S. 80IB(10) OF INCOME-TAX ACT AMOUNTING TO RS.85, 06,750/-. THUS, THE GROUND IS ALLOWED. 7. SINCE, THE FACTS BEING IDENTICAL AND PROJECT BEI NG SAME, I DO NOT FIND ANY NECESSITY TO DIFFER FROM VIEW TAKEN IN A.Y . 2008-09. ACCORDINGLY, FOLLOWING MY APPELLATE ORDER FOR A.Y. 2008-09 WHICH IS BASED ON THE DECISION OF HON'BLE TRIBUNAL IN APPELL ANTS OWN CASE FOR A.Y. 2006-07 AND 2007-08, THE ASSESSING OFFICER IS DIRECTED TO ALLOW DEDUCTION U/S. 80IB(10) OF INCOME-TAX ACT AMOUNTING TO RS.83,97,838/-. THUS, THE GROUND IS ALLOWED. AGGRIEVED BY THE ORDER OF LD. CIT(A), REVENUE IS NOW IN APP EAL BEFORE US. 5. BEFORE US, LD.D.R. TOOK US THROUGH THE FINDINGS OF AO AND SUPPORTED THE ORDER OF AO. LD.A.R. ON THE OTHER HAND, R EITERATED THE SUBMISSIONS MADE BEFORE AO AND LD. CIT(A) AND SUPPORT ED THE ORDER OF LD. CIT(A). 10 ITA NO.2292/PUN/2014 AY.NO.2010-11 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WIT H RESPECT TO ALLOWABILITY OF DEDUCTION U/S 80IB(10) OF THE ACT. IN THE PRESENT CASE, WE FIND THAT AO WHILE DENYING THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT AND BY FOLLOWING THE REASONING OF AO IN EARLIER YEARS (A.YS.2006-07 TO 2009-10) HAD DENIED THE CLAIM OF DEDUCTION. WE FIND THAT THE LD. CIT(A) W HILE DECIDING THE ISSUE IN FAVOUR OF ASSESSEE HAS FOLLOWED THE ORDER IN ASSESSEE OWN CASE FOR A.Y. 2008-09. WHILE DECIDING THE I SSUE, HE HAD FOLLOWED THE DECISION OF ITAT IN ASSESSEES OWN CAS E FOR A.Y. 2006-07 AND 2007-08. BEFORE US, REVENUE HAS NOT PO INTED OUT ANY DISTINGUISHING FEATURE IN THE FACTS OF THE CASE FOR THE YEAR UNDER CONSIDERATION AND THAT OF EARLIER YEARS NOR H AS PLACED ANY MATERIAL ON RECORD TO SHOW THAT THE DECISION OF CO-O RDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR EARLIER Y EARS AND WHICH HAS BEEN FOLLOWED BY LD. CIT(A) HAS BEEN SET A SIDE BY HIGHER JUDICIAL AUTHORITIES. IN VIEW OF THE AFORESAID FACTS, W E FIND NO REASON TO INTERFERE WITH THE ORDER OF LD. CIT(A) AND THUS THE GROUNDS OF THE REVENUE ARE DISMISSED. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED ON 22 ND DAY OF MARCH, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE; ! DATED : 22 ND MARCH, 2017. YAMINI 11 ITA NO.2292/PUN/2014 AY.NO.2010-11 ( ) *!+, -,! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. COMMISSIONER OF INCOME TAX-V, PUNE. COMMISSIONER OF INCOME TAX (A) VI, PUNE. #$% &&'(, * '(, / DR, ITAT, A PUNE; %+, - / GUARD FILE. ( / BY ORDER, // TRUE COPY // //TRUE COPY// . /012 / ASSISTANT REGISTRAR, * '( , / ITAT, PUNE.