M/s. Goldline Writing Instruments Ltd., Kolkata V. ITO, Ward- 6(2), Kolkata, Kolkata

ITA 272/KOL/2010

• Counselvise Citation: 27223514 RSA 2010
• Duration Of Justice: 1 year(s) 10 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Assessee Lawyers: SUBASH AGARWAL; R SALARPURIA
• Keywords: Competent authority
• Section: 80IB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE . , ! ! ! ! /AND , . '# . $% ) [BEFORE SHRI N. VIJAYKUMARAN, JM & SHRI C. D. RAO, AM] !& !& !& !& / I.T.A NO. 272/KOL/201 0 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2006-07 M/S. GOLDLINE WRITING INSTRUMENTS LTD. VS. INCO ME-TAX OFFICER, WD-6(2), KOLKATA (PAN : AABCG 7408 G) ( ,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 05.12.2011 DATE OF PRONOUNCEMENT: 29.12.2011 FOR THE APPELLANT: S/SHRI R. SALARPURIA & SUBASH AGARWAL FOR THE RESPONDENT: SHRI NIRAJ KUMAR $0 / ORDER PER N. VIJAYKUMARAN, JM ( . , , , , ) THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF CIT(A)-VI, KOLKATA DATED 29.12.2009. ASSESSMENT YEAR INVOLVED IS 2006-07. G ROUND OF APPEAL IS AS UNDER: 1. THE ORDER OF THE LD. CIT(A), KOLKATA CONFIRMING THE ACTION OF THE ASSESSING OFFICER IS CONTRARY TO THE LAW AND FACTS OF THE CAS E. 2. ON THE FACTS BROUGHT ON RECORD, THE LD. CIT(A) O UGHT TO HAVE HELD THAT THE LEARNED ASSESSING OFFICER ERRED IN DISALLOWING DEDUCTION CL AIMED U/S. 80IB OF THE INCOME TAX ACT 1961 AMOUNTING RS.1,74,12,766/-. 2. THE ONLY ISSUE BEFORE US IS ON THE DISALLOWANCE OF THE CLAIM U/S. 80IB(10) OF THE I. T. ACT. THE FACTS RELEVANT ARE THAT THE ASSESSEE IS A COMPA NY AND DURING THIS YEAR, THE ASSESSEE WAS [ ITA NO.272/KOL/2010] 2 ENGAGED IN CONSTRUCTION BUSINESS AND IT HAS CLAIMED TO HAVE DEVELOPED AND COMPLETED CONSTRUCTION OF HOUSE BUILDING PROJECT IN THE NAME OF REGENT GAR DEN AT GHOSH PARA ROAD, KRISHNAPUR, KOLKATA. THE ASSESSING OFFICER WAS OF THE VIEW THAT ON INSPE CTION BY ITO, WHO VISITED THE SITE PROJECT REGENT GARDEN REPORTED THAT CONSTRUCTION WAS INCOMP LETE TILL THE DATE OF REPORT I.E. ON 24.12.2008. THE ASSESSEE EXPLAINED THAT THE CONSTRUCTION OF 121 92 SFT. WAS WITHHELD BY HONBLE HIGH COURT VIDE ITS ORDER DATED 19.12.2006 IN W.P. NO.19380 OF 2005 FILED BY ALL FLAT OWNERS OF THE PROJECT. ASSESSING OFFICER CALLED FOR CLARIFICATION FROM THE CHAIRMAN, RAJARHAT GOPALPUR MUNICIPALITY. CHAIRMAN HAS GIVEN THE DETAILS AS UNDER: THE (G+4) STORIED BUILDING PLAN OF THE PROJECT HAS BEEN APPROVED PROVISIONALLY ON 10.12.2003 VIDE SL. NO.1182/03-04. THE APPROVAL WAS PROVISIONAL IN WANTING OF THE FOLLOWING DOCUMENTS: 1. MUTATION AND CONVERSION CERTIFICATE OF LAND AS R EQUIRED UNDER SECTION 4C OF WBLR ACT, 1955. 2. CONSENT TO ESTABLISH/CONSENT TO OPERATE AS RE QUIRED UNDER SECTION 33A OF THE WATER (PREVENTION AND CONTROL OF POLLUTI ON) ACT, 1974. 3. HOWEVER, ASSESSING OFFICER WAS NOT SATISFIED ABO UT THE COMPLETION CERTIFICATE ISSUED BY THE MUNICIPALITY DATED 28.07.2005 AS THAT COMPLETIO N CERTIFICATE WAS IN THE NAME OF RABINDRA NATH MONDAL & ORS. FURTHER, THE MUNICIPALITY CERTIFIES THAT THE BUILDING IS FIT FOR OCCUPATION. THE CONTENTION OF THE ASSESSEE THROUGHOUT THE PROCEEDIN GS IS THAT IT HAD COMPLETED THE PROJECT WELL BEFORE THE STIPULATED TIME AND SUBSEQUENTLY APPLIED FOR COMPLETION CERTIFICATE FROM THE COMPETENT LOCAL AUTHORITY ON 11.07.2005. THE SAID MUNICIPALI TY HAD ISSUED THE COMPLETION CERTIFICATE AFTER SATISFIED WITH THAT THE PROJECT WAS COMPLETED. ASS ESSING OFFICER, HOWEVER, ON GOING THROUGH THE COPIES OF AGREEMENT THAT ASSESEE COMPANY HAD ENTERE D INTO ON 15.11.2005 WITH VASHULINGA FINANCE PVT. LTD., NEW DELHI FOUND THAT OWNER SHALL COMPLETE THE CONSTRUCTION OF THE FLAT OF THE INTENDING BUYER BY DECEMBER, 2005. HENCE, ASSESSIN G OFFICER DOUBTED THE COMPLETION CERTIFICATE AND FOUND THAT THE PROJECT COULD NOT BE COMPLETED B EFORE 11.07.2005 I.E. THE DATE OF APPLICATION FOR COMPLETION CERTIFICATE. 4. HERE THE ASSESSEE COMPANY CLAIMS 80IB DEDUCTION AS THE DEDUCTION FOR DEVELOPMENT OF INFRASTRUCTURE PROJECT FOR THAT ASSESSEE COMPANY RE LIED ON COMPLETION CERTIFICATE AND CLAIMS IT AS IT [ ITA NO.272/KOL/2010] 3 QUALIFIES FOR THE DEDUCTION. AS THE COMPLETION CER TIFICATE IS IN THE NAME OF SHRI RABINDRA NATH MONDAL AND OTHERS, IT IS EXPLAINED THAT AS PER ASSE SSEES PAPER BOOK PAGES 81 AND 84, THE BUILDING HAS TO BE CONSTRUCTED MULTISTORIED BUILDING COMPLEX AND THE SANCTION PLAN HAS BEEN OBTAINED FROM THE MUNICIPAL AUTHORITIES AND THE COPY OF SUCH SANC TIONED PLAN WAS AVAILABLE AT THE TIME OF AGREEMENT AND THAT BUILDING HAS TO BE CONSTRUCTED A S PER THE PLAN AND DEVIATION IS NOT PERMITTED. THAT BEING THE CASE AS CONTENDED BY LD. COUNSEL THA T THE MUNICIPAL AUTHORITIES BEING SATISFIED THAT THERE IS NO DEVIATION FROM THE PLAN, ISSUED CO MPLETION CERTIFICATE AND THERE IS NO DEVIATION TO THE SANCTIONED PLAN AND THAT BEING THE POSITION, AS SESSING OFFICER CANNOT RE-AGITATE THE ISSUE AS THE ASSESSING OFFICER IS NOT THE COMPETENT PERSON TO DE CIDE AND ADJUDICATE, OVER AND ABOVE THE COMPETENT AUTHORITY, WHO SANCTIONED THE BUILDING PL AN AND THEREAFTER ISSUED COMPLETION CERTIFICATE. THE COMPETENT MUNICIPAL AUTHORITIES NEVER CHARGED T HE ASSESSEE FOR VIOLATION OR DEVIATION OF THE PLAN WHICH WAS ALREADY SANCTIONED TILL DATE. HENCE , LD. COUNSEL FOR THE ASSESSEE WOULD SUBMIT THAT THE ASSESSING OFFICER HAS OVERSTEPPED AND THE COMPETENT AUTHORITY IS ONLY THE MUNICIPALITY AND THE BUILDING HAS TO BE CONSTRUCTED AS PER THE T ERMS AND CONDITIONS OF THE MUNICIPAL RULES, WHO ARE THE COMPETENT AUTHORITY AND ASSESSING OFFICER C ANNOT TRANSGRESS AND MAKE AN INDEPENDENT OPINION THAN THAT OF THE ONE ARRIVED BY THE MUNICIP AL AUTHORITIES. FURTHER, THE PROJECT COMPLETION CERTIFICATE WAS IN THE NAME OF SHRI RABINDRA NATH M ONDAL & ORS., LD. COUNSEL EXPLAINED THAT THE SANCTIONED PLAN IS PART OF THE AGREEMENT TO CONSTRU CT THE PROJECT. HENCE, THERE IS NO DEVIATION OR THERE CANNOT BE ANY FAULT AS THE BUILDING PLAN ITSE LF IS SANCTIONED IN THE NAME OF SHRI RABINDRA NATH MONDAL & ORS. THE AGREEMENT WITH BUILDER WHICH IS AVAILABLE IN ASSESSEES PAPER BOOK PAGES 53 TO 67 DATED 6 TH FEBRUARY, 2004 BETWEEN THE ASSESSEE AND THE CONTRA CTOR M/S. RDB INDUSTRIES WILL CLEARLY GO TO SHOW THAT THE ASSESSE E QUALIFIES FOR THE ENTIRE PROJECT FOR THE CLAIM OF DEDUCTION U/S. 80IB(10) OF THE ACT AND THERE IS NO DEVIATION AND THE ASSESSING OFFICER CANNOT ATTRIBUTE ANY DEVIATION FOR THE STAMP OF APPROVAL G IVEN TO THE ASSESSEE BY THE MUNICIPAL AUTHORITIES. LD. COUNSEL, THEREFORE, SUBMITTED THA T AS PER PAGE NO. 34 WHICH IS THE FIRST AGREEMENT DATED 19.12.2003 BETWEEN SHRI RABINDRA NATH MONDAL & ORS. WITH THE ASSESSEE VENDORS OF THE OTHER PART, THE ASSESSEE GOLDLINE WRITING INSTRUM ENT LTD. PARTICULARLY QUALIFIES THE INTERNAL PAGE 4 OF ASSESSEES PAPER BOOK PAGE NO. 34 IT IS MENTIO NED THAT AND WHEREAS THE VENDORS HAVE AGREED TO SELL AND THE PURCHASES HAVE AGREED TO PURCHASE T HE AFORESAID PLOT OF LAND PARTICULARLY DESCRIBED IN THE SCHEDULE HEREUNDER WRITTEN TOGETHER WITH PLA NS SANCTIONED THEREOF IN FEE SIMPLE IN POSSESSION AND FREE FROM ALL ENCUMBRANCES OR FOR TH E PRICE OR SUM OF RS.48 LACS ONLY. THIS WILL GO [ ITA NO.272/KOL/2010] 4 TO SHOW THE TRANSACTION BEING A GENUINE TRANSACTION AND STOOD EXPLAINED WHY THE PLAN WAS IN THE NAME OF SHRI RABINDRA NATH MONDAL & ORS. THE INDEN TURE BETWEEN THE ASSESSEE AND THE VENDORS SHRI RABINDRA NATH MONDAL & ORS. WILL AMPLY EXPLAIN THE CLAIM OF THE ASSESSEE INCLUDING THE EXTENT OF LAND WHICH THE ASSESSEE POSSESSES. 5. COMING TO THE AREA OF THE BUILDING, IT HAS BEEN EXPLAINED THAT THE ASSESSEE HAS PURCHASED THE REQUIRED ONE ACRE WHICH IS THE CONDITION FOR CL AIMING 80IB(10), PROJECT HAS ALSO BEEN SATISFIED THOUGH IT WAS PURCHASED IN DIFFERENT OCCASIONS ACTU ALLY ASSESEE OWNS AND POSSESSES 63 COTTAHAS, WHICH IS MORE THAN ONCE ACRE IS NOT IN DISPUTE. HE NCE, ASSESSEES CLAIM IS THAT HE QUALIFIES THAT BY WAY OF PURCHASE IN ADDITION IN THE YEAR 2003 FOUR C OTTAHAS 22 SFT. AND 50 COTTOHAS IN 2004 AND 13 COTTAHAS AGAIN IN 2004. THE DATE OF PURCHASE OF LA ND IS AVAILABLE IN PAPER BOOK ITEMS 2, 3 AND 4 I.E. FROM PAGE NO. 15 TO 52 OF THE ASSESSEES PAPER BOOK. THE ORIGINAL SANCTIONED PLAN IS AVAILABLE IN ASSESSEES PAPER BOOK AT PAGE 206, THE COPY OF T HE REVISED SANCTIONED PLAN IS IN ASSESSEES PAPER BOOK PAGE 207 AND THE COMPLETION CERTIFICATE INCLUD ING THE COMPLETION PLAN WHICH IS DATED 28.7.2005, THE COPY OF WHICH IS AVAILABLE IN PAGE N O. 208 OF ASSESSEES PAPER BOOK. THIS IS ALSO FURTHER CERTIFIED BEFORE US THAT THESE DOCUMENTS WE RE AVAILABLE BEFORE ASSESSING OFFICER AS WELL AS THE CIT(A). 6. COMING TO THE EXPLANATION OF THE WRIT PETITION F ILED BY THE FLAT OWNERS ON THE DISPUTE OVER EXTRA SPACE AVAILABLE BETWEEN THE FLAT OWNERS AND T HE ASSESSEE BY WAY OF WRIT IS THAT THE ASSESSEE ATTEMPTED TO CONSTRUCT STRUCTURE ON THE RESERVE SP ACE WHICH IS EARMARKED FOR CAR PARKING. FURTHER, FOR THAT PURPOSE ONLY ASSESSEE ON 15.11.2005 ENTERE D INTO AGREEMENT WITH VASULINGA FINANCE CO. LTD. TO SELL THE AREA. THE WRIT PETITION BY THE FL AT OWNERS WILL CLEARLY SHOW THAT THE FLAT OWNERS HAVE ACCEPTED THAT THEY WERE ALLOTTED THE RESPECTIV E FLATS AND ONLY THE DISPUTE WHICH WAS URGED BY THE WRIT PETITION BY THE FLAT OWNERS IS OPPOSING TH E ACTION OF THE ASSESEE THAT THE EXCESS CAR PARKING SPACE REMAINED UNSOLD WHICH ASSESSEE ATTEMPTED TO C ONVERT THE CAR PARKING SPACE TO RESIDENTIAL UNIT. THIS IS ONLY THE DISPUTE BETWEEN THE TENEMEN TS AND THE ASSESSEE. HOWEVER, AS 80IB DEDUCTION IS CONCERNED, ASSESSEE WITHIN THE STIPULA TED TIME COMPLETED THE PROJECT AND ALLOTTED THE UNITS TO THE FLAT OWNERS. LD. COUNSEL TOOK US TO TH E ASSESSEES PAPER BOOK PAGE NO. 9, WHICH IS THE P&L ACCOUNT STARTS FROM PAGE NO. 6 AND THE SCHEDULE K SALES AND SERVICE, OUT OF THE TOTAL SALE DURING THE YEAR RS.7,95,30,103/- THE SALE OF FLATS AND GARAGE ITSELF IS TO THE TUNE OF RS. 7,44,77,748/- , [ ITA NO.272/KOL/2010] 5 THEREFORE, LD. COUNSEL CONTENDS THAT WHERE A PROJEC T ENDED WITH 31 ST MARCH, 2006 THE TOTAL SALE OF FLATS AND GARAGE WERE ALMOST COMPLETED AND LD. COUN SEL, THEREFORE, SUBMITTED THAT SEC. 80IB DEDUCTION IS TO BE GIVEN TO THE ASSESSEE AS ASSESEE HAS COMPLETED THE PROJECT AND ASSESSEE QUALIFIES FOR THAT ALSO. ON THE OTHER HAND, THE LD. DR WOULD SUBMIT THAT THE ASSESSING OFFICER INVESTIGATED THE MATTER AND FOUND THAT COMPLETION CERTIFICATE CO NTRADICTED WITH THE REPORT OF INSPECTOR OF THE DEPARTMENT, WHO FOUND ON PERSONAL INSPECTION THAT T HE BUILDING WAS INCOMPLETE. THE BUILDING PLAN IS ONLY A PROVISIONAL SANCTION AND THE CONDITI ONS NEVER FULFILLED. FURTHER, THE COMPLETION CERTIFICATE DATED 28.7.2005 IS NOT IN THE NAME OF T HE ASSESSEE. IT IS IN THE NAME OF SHRI RABINDRA NATH MONDAL & ORS. FURTHER, THE FLAT OWNER, SECRET ARY OF THE REGENT GARDEN INFORMS TO THE ASSESSEE THAT THE CONSTRUCTION WAS INCOMPLETE AND W ERE NEVER FILED COPY OF THE REVISED PLAN. ONCE IT IS INCOMPLETE THEN ASSESEE IS NOT ENTITLED FOR 8 0IB DEDUCTION. FURTHER WITH REFERENCE TO THE AGREEMENT WITH THE CONTRACTOR M/S. RDB INDUSTRIES, LD. DR WOULD SUBMIT THAT AT THE TIME OF AGREEMENT ASSESSEE DOES NOT OWN REQUIRED MINIMUM AC RE OF LAND. HENCE, THE ASSESSEE IS NOT ENTITLED TO 80IB DEDUCTION IN VIEW OF EXPLANATION ( 1) OF SUB-SECTION (A) OF SECTION 80IB(10) OF THE ACT. HENCE, LD. DR WOULD SUBMIT THAT ORDERS OF THE LOWER AUTHORITIES ARE TO BE CONFIRMED BY DISMISSING THE APPEAL OF THE ASSESSEE. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. ASSESSING OFFICER FIRST D OUBTED THAT THERE IS FURTHER CONSTRUCTION. FOR THAT LD. COUNSEL EXPLAINED THAT AFTER COMPLETION OF THE PROJECT AND AFTER OBTAINING COMPLETION CERTIFICATE WHEN THE DEVELOPER FOUND THAT IT WAS NO T EASY TO SALE THE GARAGES WHICH WERE SALEABLE COMMODITIES. HE APPLIED FOR REVISED SANCTION PLAN A ND STARTED CONSTRUCTION IN THE SAID PROJECT FOR CONVERTING SPACE FOR GARAGES IN THE RESIDENTIAL UNI TS. THE ASSESSEE-COMPANY WAS PREVENTED BY SOME FLAT OWNERS ON THIS EXTRA SPACE UTILIZATION AN D FILED A WRIT PETITION BEFORE THE HONBLE HIGH COURT AND THEN THE INSPECTOR VISITED THE SITE OF TH E PROJECT, HE FOUND THAT EXTRA SPACE CONSTRUCTION WAS GOING ON AND HENCE, REPORTED TO THE ASSESSING O FFICER THAT THE PROJECT WAS INCOMPLETE. THIS IS THE REASON ASSESSING OFFICER DENIED UNDER SECTION 8 0(B)(10) DEDUCTION MAINLY ON THE GROUND THAT THE CONSTRUCTION IS NOT COMPLETED. 8. THE CONSTRUCTION AS PER ORIGINAL PLAN WAS DULY C OMPLETED AND THE COMPLETION CERTIFICATE DATED 28.07.2005 FROM THE LOCAL AUTHORITY. THAT BEI NG THE POSITION. THE CBDT CIRCULAR NO. F. [ ITA NO.272/KOL/2010] 6 NO.205/3/2000/ITA DATED 04.05.2001 WHEREIN CBDT HAS CLARIFIED THAT ANY PROJECT WHICH HAD BEEN APPROVED BY THE LOCAL AUTHORITY AS HOUSING PRO JECT SHOULD BE CONSIDERED AS ADEQUATE FOR THE PURPOSE OF SECTION 80IB(10). THE DECISION OF HONBL E BOMBAY HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES [2011] 333 ITR 289 (BOM.) WILL AL SO SUPPORT THIS PROPOSITION. HERE, IN THIS CASE, IT IS CLEARLY ESTABLISHED THAT THE COMPLETION CERTIFICATE HAS BEEN DULY ISSUED BY RAJARHAT GOPALPUR MUNICIPALITY IN RESPECT OF CONSTRUCTION OF PROJECT AT REGENT GARDEN. THE PLAN OF THE PROJECT WAS SANCTIONED ON 10.12.2003 AND COMPLETED WITHIN 11.07.2005 AND THE COMPLETION CERTIFICATE IS DATED 28.07.2005. THAT BEING THE POS ITION. ONCE THE APPROPRIATE AUTHORITY ISSUED THE COMPLETION CERTIFICATE, IT IS NOT WARRANTED ON THE PART OF THE ASSESSING OFFICER TO PROVE THE ISSUE FURTHER AS PER THE C.B.D.T. CIRCULAR CITED (SUPRA), CLEARLY PROHIBITS FURTHER PROHIBIT AND THE APPROVAL OF THE LOCAL AUTHORITY SHOULD BE CONSIDERE D AS ADEQUATE FOR THE PURPOSE OF SECTION 80IB(10). IT IS NOT DISPUTED THAT AS PER ORIGINAL S ANCTIONED PLAN COMPLETION CERTIFICATE HAS BEEN ISSUED BY RAJARHAT GOPALPUR MUNICIPALITY. 9. THE ONLY ISSUE IS ON THE ADDITIONAL SPACE UITILI SATION WHICH WAS OBJECTED BY THE FLAT OWNERS AND THE INSPECTION TEAM VISITED ONLY THE EXTRA SPAC E CONSTRUCTION ACTIVITY AND FOUND THAT CONSTRUCTION WAS NOT COMPLETED. THAT IS THE MATTER OF DISPUTE BETWEEN THE FLAT OWNERS AND THE ASSESSEE AND THE UTILIZATION ON CONVERSION OF THE G ARAGES ARE THE DISPUTE PENDING BEFORE THE HONBLE HIGH COURT. BUT, SO FAR AS THE DEDUCTION UN DER SECTION 80IB(10), IT HAD BEEN MADE CLEAR THAT FLAT HAS BEEN CONSTRUCTED AND COMPLETED AS PER THE SANCTIONED PLAN AS EVIDENCED BY THE COMPLETION CERTIFICATE ISSUED BY THE LOCAL AUTHORIT Y ON 28.07.2005. THOSE DOCUMENTS ARE AVAILABLE IN ASSESSEES PAPER BOOK AT PAGE 208. THE ORIGINAL SANCTIONED PLAN IS IN ASSESSEES PAPER BOOK AT PAGE 206 AND THE REVISED SANCTIONED PLAN NO.1182/02 -03 DATED 10.12.2003 IS AVAILABLE IN ASSESSEES PAPER BOOK AT PAGE 207. CONSIDERING THE ABOVE FACTS AND ON CAREFUL CONSIDERATION OF THE RIVAL SUBMISSIONS, THE ASSESSEE WHO IS IN THE BUSIN ESS OF CONSTRUCTION OF HOUSING PROJECT IN RESPECT OF PROJECT AT REGENT GARDEN WHICH PROJECT WAS SANCT IONED FOR 4 BLOCKS ON 50 COTTAH OF LAND INITIALLY. THEREAFTER, ASSESSEE-COMPANY HAS PURCHAS ED THEIR REQUIREMENT OF MEETING 60 COTTAH AND IN THIS CASE ASSESSEE HAS PURCHASED 63 COTTAH OF S ALI LAND FROM SHRI RABINDRA NATH MONDAL AND OTHERS. AS CLEARLY AVAILABLE FROM THE AGREEMENT, TH E ASSESSEE QUALIFIES FOR IN RESPECT OF THE SIZE OF THE PLOT OF LAND WHICH IS MINIMUM OF 1 ACRE. 50 COT TAH OF LAND WAS PURCHASED ON 19.12.2003. THE REMAINING 13 COTTAH 11 CHHATAK AND 32 SFT. WAS PURC HASED BY AGREEMENT DATED 27.12.2004 AS PER [ ITA NO.272/KOL/2010] 7 REGISTRATION. WHILE PURCHASING THIS LAND, THIS LAND WAS PURCHASED ALONGWITH THE SANCTIONED PLAN NO.1182/2003-04 DATED 10.12.2003 AS IT IS MORE IMPO RTANT THAT THE ASSESSEE-COMPANY NOT ONLY PURCHASED THE PROPERTY BUT ALTOGETHER WITH THE SANC TIONED PLAN FOR CONSTRUCTION. 10. THEN THE ASSESSEE-COMPANY ENTERED INTO AN AGRE EMENT WITH M/S. R.D.B. INDUSTRIES LTD., CONTRACTORS FOR CONSTRUCTION OF THE PROJECT. IT IS EVIDENCED BY WAY OF AGREEMENT DATED 06.02.2004. THEREFORE, ASSESSEE QUALIFIES THE CONDITIONS FOR TH E ELIGIBILITY OF SECTION 80IB(10). 11. THE ONLY DOUBT IN THE MIND OF ASSESSING OFFICER IS THAT ASSESSEE DOES NOT OWN MINIMUM REQUIREMENT OF ONE ACRE HAS BEEN CLEARLY PROVED BY THE ASSESSEE WHEREBY WITH RELEVANCE TO THE COPIES OF DOCUMENTS PROVED THAT THE PROJECT FOR CON STRUCTION IS IN THE EXTENT OF LAND OF 63 COTTAH. FURTHER, WHILE PURCHASING THE LAND TOGETHER WITH TH E LAND, THE SANCTIONED PLAN FOR PROJECT CONSTRUCTION WAS ALSO PART OF THE PURCHASE. THEN AF TER PURCHASE ASSESSEE ENTRUSTED THE MATTER WITH THE CONTRACTOR FOR COMPLETING THE PROJECT WITHIN TH E STIPULATED TIME. THE NEXT DOUBT IN THE MIND OF ASSESSING OFFICER IS THAT THE CONSTRUCTION WAS NOT COMPLETED. THAT DOUBT ALSO REMOVED BY THE EXPLANATION OF THE ASSESSEE THAT THE CONSTRUCTION W AS COMPLETED AND THE LOCAL AUTHORITY HAS GIVEN COMPLETION CERTIFICATE AS PER THE DECISION OF HONB LE BOMBAY HIGH COURT IN THE CASE OF CIT VS. BRAHMA ASSOCIATES [2011] 333 ITR 289 (BOM.) . THIS IS SUFFICIENT COMPLIANCE. CBDT CIRCULAR RELIED ALSO, HENCE, THE STAND OF THE ASSESSEE. ONCE THE LOCAL AUTHORITY SANCTIONED HOUSING PROJECT IT SHOULD BE CONSIDERED AS ADEQUATE FOR THE PURPOSE OF SECTION 80IB DEDUCTION. HENCE, WE ARE OF THE VIEW THAT ASSESSEE QUALIFIES FOR THE DEDUCTION UNDE R SECTION 80IB(10). ONCE THE ASSESSEE QUALIFIES FOR 80IB BEING THE BENEFICIAL PROVISION AND AS PER THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO LIMITED VS. CIT [1992] 196 ITR 188 (SC) AND THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF ANDAMAN & NICOBAR ISLANDS FOREST & PLANTATION DEVELOPMENT CORPORATION LTD. VS. CIT [2006] 280 ITR 118 (CAL.). THIS RATIO ALSO HELPS THE CONTENTION OF THE ASSESSEE AS THE ASSESSEE IS FULFI LLING ALL THE CONDITIONS LAID DOWN IN SECTION 80IB(10). THE CLAIM OF THE ASSESSEE FOR THE ABOVE D EDUCTION HAS TO BE CONSIDERED AS QUALIFIED FOR BENEFICIAL DEDUCTION UNDER SECTION 80IB. HENCE, WE ARE OF THE VIEW THAT THE ORDER OF AUTHORITIES TO BE REVERSED AND THE ASSESSEE SHOULD BE GIVEN WITH T HE DEDUCTION CLAIMED UNDER SECTION 80IB AMOUNTING TO RS.1,74,12,766/- AS THE ASSESSEE QUALI FIES FOR THE REQUIREMENT OF CONDITIONS LAID [ ITA NO.272/KOL/2010] 8 DOWN UNDER SECTION 80IB. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN OPEN COURT ON 29.12.2011. SD/- SD/- . '# . , $% . , (C. D. RAO) (N. V IJAYKUMARAN) ACCOUNTANT MEMBER JUDIC IAL MEMBER ( #% #% #% #%) )) ) DATED : 29 TH DECEMBER, 2011 12 '3 '4 JD.(SR.P.S.) $0 5 .'' 6$)7- COPY OF THE ORDER FORWARDED TO: 1. ,- / APPELLANT M/S. GOLDLINE WRITING INSTRUMENTS LTD. , BIKANER BLDG. 8/1, LAL BAZAR STREET, 1 ST FLOOR, R. NO. 11, KOLKATA-71.. 2 ./,- / RESPONDENT, ITO, WARD-6(2), KOLKATA. 3. '0 ()/ THE CIT(A), KOLKATA 4. '0/ CIT, KOLKATA 5. ='> .' / DR, KOLKATA BENCHES, KOLKATA / .'/ TRUE COPY, $0?/ BY ORDER, @ ! /ASSTT. REGISTRAR .