City Development Corporation , Pune V. Dy. CIT Cir-3 Pune, Pune

ITA 295/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67020 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 13-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 295/PN/2012 (ASSTT.YEAR : 2008-09) CITY DEVELOPMENT CORPORATION, 917/19 A F C ROAD, CITY CHAMBERS PUNE, PUNE 411 004 PAN NO. AACFC 8332 .. APPELLANT VS. DCIT CENTRAL CIRCLE-3, PUNE .. RESPONDENT APPELLANT BY : SRI SUHAS BORA RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 14-05-2013 DATE OF PRONOUNCEMENT : 17-05-2013 ORDER PER R.K.PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 09-11-2011 OF THE CIT(A)-II, PUNE RELATING TO ASSES SMENT YEAR 2008-09. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE THESE ARE ALL RELATE TO DENIAL OF DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT 1961 AMOUNTING TO RS.30.10,876/- IN RESPECT OF THE HOUSING PROJECT KASTURKUNJ, BHOSALENAGAR, GANESHKHIND ROAD, PUNE BY THE ASSESSING OFFICER AND UPHELD BY THE LD. CIT(A). 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS A PARTNERSHIP FIRM CARRYING OUT THE ACTIVITY OF PROMOTER AND BUILDER U NDER THE NAME AND STYLE 2 OF M/S. CITY DEVELOPMENT CORPORATION. DURING THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE HAS UNDERTAKEN A RESIDENTIAL PROJ ECT NAMED AS KASTURKUNJ PROJECT AT PUNE WHICH IS AN 80IB(10) PROJECT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSING OFFI CER ASKED THE ASSESSEE TO FURNISH DETAILS IN RESPECT OF THIS PROJECT AND J USTIFY THE CLAIM OF DEDUCTION U/S.80IB(10) AMOUNTING TO RS.30,10,876/-. REJECTIN G THE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE AND FOLLOWING TH E ORDER FOR A.Y. 2007- 08 IN ASSESSEES OWN CASE THE ASSESSING OFFICER DIS ALLOWED THE CLAIM OF DEDUCTION OF RS.30,10,876/- MADE BY THE ASSESSEE U/ S.80IB(10) OF THE INCOME TAX ACT, 1961. IN APPEAL THE LD. CIT(A) FO LLOWING HIS ORDER FOR A.Y. 2006-07 IN ASSESSEES OWN CASE UPHELD THE ACTI ON OF THE ASSESSING OFFICER. 3.1 AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASS ESSEE IS IN APPEAL BEFORE US. 4. AFTER HEARING BOTH THE SIDES WE FIND WHEN THE MA TTER TRAVELLED TO THE TRIBUNAL, THE TRIBUNAL VIDE ITA NO.1489/PN/2009 AND ITA NO.1100/PN/2010 ORDER DATED 17-09-2012 FOR A.YS. 20 06-07 AND 2007-08 RESPECTIVELY ALLOWED THE CLAIM OF THE ASSESSEE BY H OLDING AS UNDER : 12. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. QUITE CLEARLY, THE DISPUTE IS WITH REGARD TO THE COMPLETION CERTIFICAT E OF BUILDING E HAVING BEEN ISSUED BY THE LOCAL AUTHORITY I.E. PUNE MUNICIPAL C ORPORATION, ON 5-5-2008. SUB- CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) REQUI RES THAT THE CONSTRUCTION OF THE PROJECT IN QUESTION IS TO BE COMPLETED ON OR BEFORE 31-3-2008. CLAUSE (II) OF EXPLANATION BELOW SECTION 80-IB(10)(A) PRESCRIBES T HAT THE DATE OF COMPLETION OF CONSTRUCTION OF HOUSING PROJECT SHALL BE TAKEN T O BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING P ROJECT IS ISSUED BY THE LOCAL AUTHORITY. IN THE PRESENT CASE, IT HAS BEEN ISSUED ON 5-5-2008 AND HENCE THE CASE SET UP BY THE REVENUE THAT THE COMPLETION IS B EYOND THE MANDATED DATE OF 31-3-2008. IN THIS BACKGROUND, WE FIND THAT THE RE IS NO DISPUTE THAT THE ASSESSEE APPLIED FOR OBTAINING THE COMPLETION CERTI FICATE IN RESPECT OF BUILDING E ON 12-3-2008. FROM THE DISCUSSION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER, WHEREIN THE FACTUAL ASSERTIONS OF THE ASSESSEE HAVE BEEN REPRODUCED, IT IS QUITE EVIDENT THAT THE ASSESSEE A SSERTED THAT BEFORE 31-3- 2008, THE CONSTRUCTION OF BUILDING WAS COMPLETE IN ALL RESPECTS; THAT ELECTRICAL 3 CONNECTION WAS PROVIDED TO EACH FLAT OWNER; ROAD W AS COMPLETE; WATER AND DRAINAGE CONNECTION WAS AVAILABLE; SEWERAGE SYSTEM WAS OPERATING; CLUB HOUSE WAS FUNCTIONAL; ETC. THE ASSESSEE ALSO POINTED OUT THAT THE LOCAL AUTHORITY HAD ALSO INITIATED PROPERTY TAX ASSESSMENTS FOR EACH O F THE FLATS AND THE SAME DEMONSTRATED THAT ALL THE FLATS IN THE BUILDING WE RE COMPLETE. IN FACT, IN PARA 6.9 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER NOTICED THAT THE FACTS THAT THE FLATS WERE COMPLETED AND POSSESSION GIVEN WILL NOT COME TO THE RESCUE OF THE ASSESSEE . THE AFORESAID FINDING OF THE ASSESSING OFFICER SUPPORTS THE ASSERTION MADE BY THE ASSESSEE THAT FACTUALLY SPEAK ING CONSTRUCTION OF FLATS IN BUILDING E WAS ALSO COMPLETE AND POSSESSION HANDE D OVER TO THE ACTUAL USER/CUSTOMERS PRIOR TO 31-3-2008. PERTINENTLY, ON THE BASIS OF THE ARCHITECTS CERTIFICATE CONFIRMING COMPLETION OF CONSTRUCTION O F BUILDING, THE ASSESSEE APPLIED FOR THE COMPLETION CERTIFICATE TO THE PUNE MUNICIPAL CORPORATION ON 12- 3-2008. IT HAS BEEN POINTED OUT BEFORE US THAT THE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION DID NOT RAISE ANY OBJECTION W ITH REGARD TO ASSESSEES APPLICATION AND THE CERTIFICATE FOR BUILDING E WA S THEREAFTER ISSUED ON 5-5- 2008. THE MOOT QUESTION IS AS TO WHETHER IN SUCH A SITUATION CAN IT BE SAID THAT THE ASSESSEES PROJECT DID NOT COMPLY WITH THE COND ITION PRESCRIBED IN SUB- CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) OF TH E ACT WHEREBY THE CONSTRUCTION WAS TO BE COMPLETED ON OR BEFORE 31-3-2008. SOMEWH AT SIMILAR SITUATION WAS CONSIDERED BY OUR CO-ORDINATE BENCH IN THE CASE OF HINDUSTAN SAMUTHA AWAS LTD. (SUPRA) WHEREIN ALSO ON THE STRENGTH OF ARCHIT ECTS CERTIFICATE, AN APPLICATION FOR OBTAINING COMPLETION CERTIFICATE WA S MOVED TO THE LOCAL AUTHORITY ON 25-2-2008 BUT IN ACTUALITY THE COMPLET ION CERTIFICATE WAS ISSUED BY THE LOCAL AUTHORITY ON 10-10-2008. THE TRIBUNAL NO TICED THAT THE DELAY IN ISSUING COMPLETION CERTIFICATE WAS NOT ATTRIBUTABLE TO THE ASSESSEE AS NO OBJECTIONS WERE RAISED BY THE LOCAL AUTHORITY. TH E TRIBUNAL AFTER CONSIDERING ITS EARLIER DECISIONS IN THE CASE OF M/S. SATISH BOHRA & ASSOCIATES VS. ACIT IN ITA NO. 713 AND 714/PN/2010 FOR A.Y. 2004-05 AND 2005-0 6 DATED 7-1-2011; M/S. D.K. CONSTRUCTIONS VS. ITO ITA NO. 243/PN/2010 FOR A.Y. 2006-07; DATED 6-12- 2010 AND SANGHVI AND DOSHI ENTERPRISES VS. ITO AND OTHERS ITA NO. 259 TO 263/MDS/2010 DATED 19-5-2011 FOR A.Y. 2005-06 AND 2 006-07 (TM) HAS CONCLUDED AS FOLLOWS: FROM THE ABOVE, ONCE THIS IS CLEAR THAT THE DATE THAT APPEARS ON THE ARCHITECTS COMPLETION CERTIFICATE FILED BEF ORE THE LOCAL AUTHORITY IS RELEVANT ONE. IN THE INSTANT CASE, TH E SAID DATE IS 25- 3-2008 AND THE ASSESSEE FILED REQUISITE FORM BEFORE THE LOCAL AUTHORITIES INTIMATING THE COMPLETION OF THE PROJEC T. THE SAID CERTIFICATE/INTIMATION WAS ACCEPTED BY THE LOCAL AU THORITY WITHOUT ANY AMENDMENTS OR OBJECTIONS. LOCAL AUTHOR ITY HAS NOT RAISED ANY QUERIES ON THE QUALITY CONSTRUCTION OF T HE BUILDING OR THE COMPLETION OF THE SAME AS PER THE PLANS APPROVE D BY SUCH AUTHORITY. IN SUCH CIRCUMSTANCES, IN OUR OPINION, THE DELAY IN OBTAINING THE COMPLETION CERTIFICATE ON 10-10-2008 IS CERTAINLY NOT ATTRIBUTABLE TO THE ASSESSEE AND OBTAINING THE SAID CERTIFICATE BEFORE 31-3-2008 IS BEYOND THE CONTROL OF THE ASSES SEE. ASSESSEES JOB INCLUDES THE COMPLETION OF THE BUILD ING IN ACCORDANCE WITH THE APPROVED PLANS AND INTIMATION O F THE SAME TO THE LOCAL AUTHORITY BY WAY OF FILING THE REQUISI TE FORMS TOGETHER WITH THE COMPLETION CERTIFICATE GIVEN BY T HE ARCHITECT, THE SPECIALIST IN THE MATTER AND THE ASSESSEE HAS D ONE HIS JOB SCRUPULOUSLY IN THIS CASE. HOWEVER, THE LOCAL AUTH ORITY HAS NEITHER OBJECTED TO THE SAID APPLICATION OF THE ASS ESSEE AND THE ARCHITECT BY RAISING ANY OBJECTIONS FOR ACCEPTED BY ISSUE OF SAID COMPLETION CERTIFICATE TILL 10-10-2008. THEREFORE, THE DELAY IN GRANT OF THE SAID CERTIFICATE IS CERTAINLY NOT ATTR IBUTABLE TO THE ASSESSEE. THEREFORE, IN OUR OPINION, THE ASSESSEE IS NOT DEFAULTER 4 ON THIS ACCOUNT AND THUS, THE AO HAS ERRED IN DENYI NG THE DEDUCTION U/S 80-IB(10) OF THE ACT. ACCORDINGLY, TH E ORDER OF THE CIT(A) HAS TO BE REVERSED. THUS, THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED 13. THE AFORESAID DECISION OF THE TRIBUNAL IS CLEAR LY APPLICABLE TO THE FACTS OF THE PRESENT CASE ALSO. IN THE PRESENT CASE, THE CO MPLETION CERTIFICATE WAS APPLIED FOR BEFORE 31-3-2008 I.E. ON 12-3-2008. IT IS UNDISPUTABLE THAT THE APPLICATION OF THE ASSESSEE HAS BEEN APPROVED BY TH E LOCAL AUTHORITY WITHOUT RAISING ANY AMENDMENT OR OBJECTION, AS HAS BEEN ASS ERTED BY THE ASSESSEE ALL ALONG AND THE DELAYED ISSUANCE OF THE COMPLETION CE RTIFICATE BY THE LOCAL AUTHORITY ON 5-5-2008, ALBEIT AFTER THE MANDATED DA TE OF 31-3-2008 CANNOT BE ATTRIBUTED TO THE ASSESSEE. IN THIS BACKGROUND OF T HE MATTER, WE THEREFORE, FIND AMPLE FORCE IN THE PLEA OF THE ASSESSEE THAT DENIAL OF DEDUCTION U/S 80-IB(10) ON SUCH SCORE IS UNCALLED FOR. IN CONCLUSION THERE FORE, IN THE INSTANT FACTUAL BACKGROUND, WE HOLD THAT THE ASSESSEE HAS COMPLIED WITH THE CONDITION OF COMPLETING THE CONSTRUCTION OF THE PROJECT WITHIN T HE MANDATED DATE OF 31-3- 2008 EVEN WITH REGARD TO BUILDING E, FOLLOWING TH E PARITY OF THE REASONING LID DOWN IN THE CASE OF HINDUSTAN SAMUTHA AWAS LTD. (SU PRA). . 14. SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(1 0) OF THE ACT REQUIRES THAT THE UNDERTAKING, DEVELOPING AND BUILDING A HOUSING PROJECT COMPLETES SUCH CONSTRUCTION OR BEFORE 31-3-2008. IN THE PRESENT CASE, ASSESSEE HAS FACTUALLY ASSERTED RIGHT FROM THE STAGE OF ASSESSMENT PROCEED INGS, THAT THE CONSTRUCTION OF BUILDING E WAS COMPLETE IN ALL RESPECTS AS PER SANCTIONED PLAN AND ALL THE FLATS WERE HANDED OVER TO THE ACTUAL USERS/CUSTOMER S PRIOR TO 31-3-2008. IN THE BACKGROUND OF THE AFORESAID FACTUAL POSITION WHICH HAS REMAINED UNCONTROVERTED, IN OUR VIEW, ON A PLAIN READING OF SUB-CLAUSE (I) OF CLAUSE (A) TO SECTION 80-IB(10) THE CONDITION PRESCRIBED THEREIN IS FULFILLED., INASMUCH AS THE CONSTRUCTION OF BUILDING E WAS COMPLETE BEFORE 31 -3-2008. HOWEVER, ON THE READING OF CLAUSE (II) OF THE EXPLANATION BELOW SEC . 80-IB(10)(A) OF THE ACT, IT EMERGES THAT THE COMPLETION OF CONSTRUCTION OF A HO USING PROJECT IS TO BE TAKEN TO BE THE DATE ON WHICH COMPLETION CERTIFICAT E IS ISSUED BY THE LOCAL AUTHORITY, WHICH IN THE PRESENT CASE IS ISSUED ON 5 -5-2008 I.E. BEYOND THE STIPULATED DATE OF 31-3-2008. THE MOOT QUESTION IS IN CASE THE CONDITION OF COMPLETION CONSTRUCTION CONTAINED IN THE SUBSTANTIV E SECTION 80-0IB(10)(A)(I) IS FACTUALLY FOUND TO BE COMPLIED WITH, CAN THE CONTEN TS OF THE EXPLANATION CLAUSE (II) THEREOF, ALTER THE SITUATION? CAN AN EXPLANAT ION APPENDED TO A SECTION, ENLARGE THE SCOPE OF THE MAIN SECTION SO AS TO MAKE IT MORE ONEROUS FOR A TAX- PAYER? BE THAT AS IT MAY, WE DO NOT DWELL ON THIS ASPECT ANY FURTHER, AS THE ASSESSEE HAS BEEN FOUND TO BE ELIGIBLE FOR NECESSAR Y RELIEF BECAUSE THE CONDITION PRESCRIBED IN SECTION 80-IB(10)(A)(I) OF THE ACT HAS BEEN COMPLIED WITH IN VIEW OF THE STATED PRECEDENTS. WE THEREFORE , SET ASIDE THE ORDER OF THE CIT(A) ON THIS ASPECT AND HOLD THAT THE ASSESSEE CA NNOT BE DENIED THE CLAIM OF DEDUCTION U/S 80-IB(10) ON THE STRENGTH OF NON-ISSU ANCE OF THE COMPLETION CERTIFICATE FOR BUILDING E BY THE PUNE MUNICIPAL CORPORATION BEFORE 31-3-2008, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE. 15. NOW WE MAY COME TO THE SECOND OBJECTION TAKEN B Y THE ASSESSING OFFICER IN ORDER TO DENY THE CLAIM OF DEDUCTION U/S 80-IB(10) WHICH IS TO THE EFFECT THAT CERTAIN ADJOINING FLATS IN THE HOUSING PROJECT WERE SOLD TO A SINGLE PERSON OR PERSON BELONGING TO ONE FAMILY AND SUCH F LATS WERE COMBINED BY THE PURCHASER. AS PER THE ASSESSING OFFICER THE BUILT UP AREA OF SUCH FLAT BE CONSIDERED AFTER COMBINING THE SAME AND IN THIS MAN NER THE BUILT UP AREA EXCEEDED 1500 SQ.FT. WHICH WAS VIOLATIVE OF CLAUSE (C) TO SECTION 80-IB(10) OF 5 THE ACT. THE PLEA OF THE ASSESSEE ON THIS ASPECT H AS BEEN THAT THE FLATS WERE SANCTIONED AS INDEPENDENT UNITS; THEY HAVE BEEN SOL D AS SEPARATE UNITS INASMUCH AS SEPARATE SALE DEEDS HAVE BEEN ENTERED I NTO FOR SELLING DIFFERENT FLATS; THAT THE CUSTOMERS FOR THEIR OWN CONVENIENC E HAD COMBINED TWO ADJACENT FLATS INTO A SINGLE FLAT AND, THAT SUCH CO MBINING OF FLATS HAD BEEN DONE BY THE PURCHASERS AFTER THE FLATS WERE HANDED OVER POSSESSION BY THE ASSESSEE. THE ASSESSEE FURTHER POINTED OUT THAT THE COMMON EN TRANCE GIVEN TO THE FLAT OWNERS WAS A SECURITY MEASURE AND THAT SUCH COMMON AREA WAS NOT SOLD TO ANY PARTICULAR FLAT OWNER. THE AFORESAID SUBMISSIONS H AVE BEEN SUCCINCTLY NOTED BY THE ASSESSING OFFICER ON PAGE 12 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER HOWEVER, DID NOT ACCEPT THE PLEA OF THE ASS ESSEE, WHICH HAS THEREAFTER BEEN ACCEPTED BY THE CIT(A). AS PER THE CIT(A) THE RE WAS NO EVIDENCE PUTFORTH BY THE ASSESSING OFFICER TO DEMONSTRATE THAT THE TW O ADJACENT FLATS HAVE BEEN COMBINED BY THE ASSESSEE BEFORE HANDING OVER POSSES SION TO THE CUSTOMERS. AS REGARD COMMON LOBBY IN FRONT OF THE TWO ADJACENT FLATS WHICH HAD SINGLE ENTRANCE, THE CIT(A) HAS ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE SAID COMMON AREA WAS NOT SOLD TO ANY PERSON AND THAT IT WAS ONLY A FACILITY PROVIDED FROM THE SECURITY POINT OF VIEW. ACCORDING LY, AS PER THE CIT(A), THE BUILT UP AREA OF THE FLATS HAVE TO BE SEEN INDEPEND ENTLY AND NOT AFTER COMBINING THE TWO FLATS FOR THE PURPOSES OF CLAUSE (I) TO SECTION 80-IB(10) OF THE ACT. 16. THE LEARNED DR HAS CONTESTED THE AFORESAID ACTI ON OF THE CIT (A) BY REITERATING THE STAND OF THE ASSESSING OFFICER AS M ANIFESTED IN THE ASSESSMENT ORDER. AS PER THE REVENUE, THE ADJACENT FLATS WHIC H HAVE BEEN COMBINED INTO ONE HAVE A COMMON LOBBY AT THE ENTRANCE AND THEREFO RE, TWO FLATS HAVE TO BE TREATED AS A SINGLE UNIT FOR THE PURPOSE OF COMPUTI NG THE BUILT UP AREA. IT WAS POINTED OUT THAT MERELY BECAUSE THE TWO FLATS WERE SOLD BY DIFFERENT SALE DEEDS WOULD NOT ALTER THE NATURE OF THE PROPERTY INASMUCH AS IT WAS BEING USED AS A SINGLE UNIT BY THE CUSTOMERS. IN THIS MANNER, THE STAND OF THE ASSESSING OFFICER THAT THE BUILT UP AREA HAS TO BE CONSIDERED AFTER C OMBINING THE TWO FLATS IS SOUGHT TO BE DEFENDED. 17. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTH ER HAND, POINTED OUT THAT COMBINING OF TWO FLATS WAS CARRIED OUT BY THE CUSTOMERS AND NOT BY THE ASSESSEE AND THE CIT(A) HAS ARRIVED AT A FACTUAL AP PRECIATION OF THE MATTER IN THIS REGARD. THE LEARNED REPRESENTATIVE FOR THE AS SESSEE POINTED OUT THAT THERE WAS NO NEGATION TO ASSERTION OF THE CIT(A) THAT THE ASSESSING OFFICER HAS NOT BROUGHT ANY EVIDENCE TO SHOW THAT THE TWO FLATS WER E COMBINED BY THE ASSESSEE-FIRM BEFORE HANDING OVER POSSESSION OF THE CUSTOMERS. ONCE FLATS ARE SOLD AND THE POSSESSION HANDED OVER , THE ASSESSEE CANNOT BE PENALIZED IF THE ACTUAL OWNERS COMBINED THE TWO ADJACENT FLATS. 18. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISS IONS. THE CONDITION PRESCRIBED IN CLAUSE (C) OF SECTION 80-IB(10) IS TH E SUBJECT MATTER OF DISPUTE. AS PER CLAUSE (C) OF SECTION 80-IB(10) A RESIDENTIAL U NIT OUGHT TO HAVE MAXIMUM BUILT UP AREA OF 1500 SQ.FT. SO FAR AS IT IS RELEVA NT FOR THE CITY OF PUNE. IN THE CASE BEFORE US, ADMITTEDLY, THE LOCAL AUTHORITY HAS SANCTIONED TWO FLATS SEPARATELY AND EVEN IN THE OCCUPATION/COMPLETION CE RTIFICATE ISSUED BY THE PUNE MUNICIPAL CORPORATION, TWO FLATS HAVE BEEN CON SIDERED AS INDEPENDENT UNITS. THE CIT(A) HAS COME TO A FINDING THAT THERE IS NO EVIDENCE TO SHOW THAT THE TWO FLATS HAVE BEEN COMBINED BY THE ASSESSEE AN D THEREAFTER SOLD TO THE CUSTOMERS AS A SINGLE UNIT. IN FACT, THE AFORESAID FINDING HAS NOT BEEN CONTROVERTED BY THE REVENUE BEFORE US AND ACCORDING LY, IT WOULD BE IN THE FITNESS OF THINGS TO HOLD THAT THERE IS NO MATERIAL TO SHOW THAT THE ASSESSEE HAD 6 COMBINED TWO ADJOINING FLATS SO AS TO CONSIDER THEM AS ONE UNIT FOR THE PURPOSE OF EXAMINING THE APPLICABILITY OF CLAUSE (C ) TO SECTION 80-IB(10) OF THE ACT. IT IS ALSO EVIDENT THAT THERE IS NO FINDING, MUCH LESS AN ASSERTION BY THE REVENUE, AT ANY STAGE THAT THE TWO ADJACENT FLATS I F CONSIDERED INDEPENDENTLY HAVE A BUILT UP AREA IN EXCESS OF 1500 SQ.FT. IT I S ALSO NOT THE CASE OF THE REVENUE THAT THE INDEPENDENT FLAT CANNOT BE VIEWED AS A SINGLE UNIT. IN THE ABSENCE OF ANY ASSERTION OF THE REVENUE THAT EACH F LAT IN THE HOUSING PROJECT UNDERTAKEN BY THE ASSESSEE COULD NOT HAVE BEEN USED AS AN INDEPENDENT OR SELF CONTAINED RESIDENTIAL UNIT NOT EXCEEDING 1500 SQ.FT. OF BUILT UP AREA AND THAT IT WOULD BE A COMPLETE UNIT ONLY IF TWO OR MOR E FLATS ARE COMBINED TOGETHER, THE SAME WOULD NOT LEAD TO AN INFERENCE T HAT THE ASSESSEE HAS NOT FULFILLED CONDITION PRESCRIBED IN CLAUSE (C) OF SEC TION 80-IB(10) OF THE ACT. THE ASSESSEE HAD RELIED UPON THE FOLLOWING DECISIONS IN SUPPORT OF HIS PROPOSITION WITH WHICH WE ARE IN COMPLETE AGREEMENT:- I) HAWARE CONSTRUCTIONS (P) LTD. VS. ITO (2011) 64 DTR (MUMBAI) (TRIB) 251. II) EMGEEN HOLDINGS P. LTD. VS. DCIT ITA NO. 3594 AND 3 595/MUM/2009 FOR A.Y. 2003-04 AND 2004-05 DATED29-7-2011; III) DCIT VS. ARCADE BHOOMI ENTERPRISES ITA NO. 366/MU M/2010 FOR A.Y. 2006-07 DATED 12-8-2011. 19. IN THE AFORESAID PRECEDENTS, IT HAS BEEN HELD B Y THE TRIBUNAL THAT IF THERE IS NO EVIDENCE THAT THE BUILDER HAS COMBINED THE FLATS AND THE ADJOINING FLATS ARE COMBINED BY THE CUSTOMERS, THERE WAS NO R EASON TO COMPUTE THE BUILT UP AREA AS REQUIRED FOR CLAUSE (I) OF SECTION 80-IB (10) OF THE ACT AFTER COMBINING THE FLATS. IN THIS VIEW OF THE MATTER, WE ARE THERE FORE, OF THE OPINION THAT THE BUILT-UP OF THE FLATS HAVE TO BE CONSIDERED INDEPEN DENTLY, AS RIGHTLY CONCLUDED BY THE CIT(A). IF SO DONE, IN THE PRESENT CASE, WE FIND THAT THE CONDITION PRESCRIBED IN CLAUSE (C) TO SECTION 80-IB(10) OF TH E ACT IS MET. THEREFORE, ON THIS ASPECT, THE ORDER OF THE CIT(A) IS AFFIRMED. 20. IN THE RESULT, IN SO FAR AS THE APPEALS OF THE ASSESSEE ARE CONCERNED THE SAME ARE ALLOWED AND THOSE OF THE REVENUE ARE DISMI SSED. 5. SINCE THE ASSESSING OFFICER HAS DENIED THE DEDUC TION U/S.80IB(10) ON THE BASIS OF HIS ORDER FOR A.Y. 2007-08 AND SINC E THE LD. CIT(A) HAS UPHELD THE ACTION OF THE ASSESSING OFFICER ON THE B ASIS OF HIS EARLIER ORDER FOR A.Y. 2006-07 AND SINCE THE TRIBUNAL HAS ALLOWED THE CLAIM OF THE ASSESSEE MADE U/S.80IB(10) IN THE IMMEDIATELY 2 PRE CEDING ASSESSMENT YEARS, THEREFORE, RESPECTFULLY FOLLOWING THE DECISI ON OF THE TRIBUNAL IN ASSESSEES OWN CASE AND IN ABSENCE OF ANY CONTRARY MATERIAL BROUGHT TO OUR NOTICE BY THE LD. DEPARTMENTAL REPRESENTATIVE AGAIN ST THE ORDER OF THE TRIBUNAL, WE SET-ASIDE THE ORDER OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW THE CLAIM OF DEDUCTION MADE BY THE ASSESSEE U/S.80IB(10). 7 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE 17 TH DAY OF MAY, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED THE 17 TH MAY 2013 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-II, PUNE 4. THE CIT-II, PUNE 5. D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // PRIVA TE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE