ITO Wd 4(5), Pune V. M/s Kumar Beharay RathiBrijmohan Bhutada, Pune

ITA 373/PUN/2012

• Counselvise Citation: 37324514 RSA 2012
• Duration Of Justice: 2 year(s) 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-11-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 24-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Section: 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 639 / P N/ 20 1 1 ASSESSMENT YEAR : 200 6 - 07 DY. COMMISSIONER OF INCOME TAX, CIR CLE 4, PUNE VS. M/S. KUMAR BEHARAY RATHI, 2 ND FLOOR, KUMAR CAPITAL, 2413, EAST STREET, CAMP, PUNE (APPELLANT) (RESPONDENT) PAN NO. AAAFK6677K ITA NO. 373 /PN/20 1 2 ASSESSMENT YEAR : 200 7 - 08 INCOME TAX OFFICER, WARD - 4(5), PUNE VS. M/S. KUMA R BEHARAY RATHI, 2 ND FLOOR, KUMAR CAPITAL, 2413, EAST STREET, CAMP, PUNE (APPELLANT) (RESPONDENT) PAN NO. AAAFK6677K APPELLANT BY: SHRI S.P. WALIMBE RESPONDENT BY: SHRI NIKHIL PATHAK ORDER PER R.S . PADVEKAR , JM : - THESE TWO APPEALS ARE FILED BY THE REVENUE CHALLENGING THE IMPUGNED ORDERS OF THE LD. CIT(A) - II, PUNE FOR THE A.YS. 2006 - 07 & 2007 - 08. THE FACTS AS WELL AS ISSUES ARE IDENTICAL HENCE, BOTH TH ESE APPEALS ARE DISPOSED OF F BY THIS CO MMON ORDER. THE REVENUE HAS TAKEN THE MULTIPL E GROUNDS BUT THE SOLITARY ISSUES FOR CONSIDERATION IN BOTH THE APPEALS ARE WHETHER THE LD. CIT(A) ERRED IN ALLOWING THE ASSESSEES CLAIM O F DEDUCTION U/S. 80IB(10) OF THE INCOME - TAX ACT OF RS.4 , 96,56,228/ - FOR A.Y. 2006 - 07 AND RS.2,90,17,587/ - FOR A.Y. 20 07 - 08 RESPECTIVELY . 2 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE 2. THE FACTS WHICH ARE REVEALED FORM THE RECORD AS UNDER. THE ASSESSE IS A BUILDERS AND DEVELOPERS. THE ASSESSE HAS UNDERTAKEN THE HOUSING PROJECT KUBERA SANKUL WHICH HAS BEEN DEVELOPED AND CONSTRUCTED ON AMALGAMATED PLOT BEARING S. NO. 224/2/1, 224/2/2 + 226A/1 TO 5, ADMEASURING 34810 SQ. MTRS., AS PER THE AMALGAMATION AND LAYOUT PLAN SANCTIONED VIDE PMC DPO/8902/VI/71 DATED 22 - 01 - 2004. THE ASSESSING OFFICER HAS OBSERVED THAT THE BUILDING PLANS WERE APPROVED BY THE PMC VIDE BUILDIN G COMMENCEMENT CERTIFICATE NO. 1486 DATED 23 - 01 - 2004. AS NOTED BY THE ASSESSING OFFICER IN THIS AMALGAMATED LAYOUT PLAN, BUILDINGS A2 AND A3 WITH 24 TENEMENTS AND BUILT - UP AREA OF 1320.58 SQ. MTRS. (14211 SQ. FEET), WERE SHOWN AS EXISTING COMMERCIAL BUILD INGS. BESIDES B2 BUILDING WAS SHOWN AS EXISTING BUILDING, WHILE B1 BUILDING WITH 2974.29 SQ. MTRS. OF BUILT UP AREA WAS PROPOSED. IT IS OBSERVED THAT IN THE BUILDING PLAN ALL THOSE BUILDINGS (A1, A3, B1 AND B2) WERE SHOWN AS EXISTING BUILDINGS. FURTHER 11 BUILDINGS ON THE AMALGAMATED PLOT WERE PROPOSED TO BE BUILT WITH A TOTAL BUILT - UP AREA OF 18667.51 SQ. MTRS., WITH 322 TENEMENTS, WHICH INCLUDED TWO C TYPE COMMERCIAL BUILDINGS WITH AGGREGATE BUILT UP AREA OF 1851.3 SQ. MTRS. (EXCLUDING BALCONY AREA) WITH 32 TENEMENTS. HE HAS NOTED THAT A NOTHER D TYPE COMMERCIAL BUILDING WITH AGGREGATE BUILT UP AREA OF 941.65 SQ. MTRS. (EXCLUDING BALCONY AREA) WITH 16 TENEMENTS, W AS ALSO PROPOSED, AND APPROVED FOR CONSTRUCTION. 3. THE ASSESSING OFFICER HAS FURTHER ELABORATED THE FACTS IN RESPECT OF THE ASSESSEES HOUSING PROJECTS IN A.Y. 2006 - 07 WHICH ARE AS UNDER: 4.2 THE LAYOUT PLAN WAS REVISED VIDE PMC LAYOUT/BUILDING PLAN COMMENCEMENT CERTIFICATE NO.4024/04 DATED 27.1.2005 WITH A TOTAL BUILT - UP AREA OF 19120.23 SQ. MT., WHICH INCLUDED 6337 SQ. MT. OF EXISTING BUILDINGS (WITH 114 TENEMENTS). IN THIS REVISED PLAN, 8 RESIDENTIAL BUILDINGS (A, B, C, A1, D (TWO), D1 & D3) WITH PARKING + 7 FLOORS WERE PROPOSED, WITH 216 TENEMENTS, BESIDES THREE BUILDINGS FOR PARKING. THE PLANS WERE FURTHER REVISED VIDE CC 3 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE NO.4792/06 DATED 30.3.2007, WHERE BY APART FROM THE EXISTING BUILDINGS (WITH 114 TENEMENTS) ALREADY BUILT BY THE ASSESSEE, 17 RESIDENTIAL BUILDINGS AND ONE COMMUNITY HALL WERE PROPOSED TO BE BUILT. IT WAS SUBMITTED DU RING ASSESSMENT PROCEEDINGS THAT THE KUBERA SANKUL PROJECT (WITH 11 RESIDENTIAL APARTMENTS) WAS BEING CONSTRUCTED ON 12330 SQ. MT. LAND AND 16233 SQ. MT. OF LAND WAS STILL VACANT. OUT OF THESE 11 BUILDINGS, FOUR BUILDINGS WERE COMPLETED BY 28.7.2005, AND A NOTHER FOUR BUILDINGS WERE COMPLETED IN FEBRUARY, 2008. THE DETAILS OF BUILDINGS IN THE PLAN DATED 23.1.2004 AND REVISED UP TO 30.3.2007 HAVE BEEN DISCUSSED LATER IN THE ORDER. 4.4 WHEN ENQUIRED ABOUT THE DETAILS OF EXISTING BUILDINGS ON THE PROJECT, IT WA S CLARIFIED THAT THE PLOT AREA OF ASSESSEE'S ANOTHER PROJECT NAMELY, 'KUBER VIHAR' DEVELOPED AND CONSTRUCTED EARLIER, WAS AMALGAMATED IN JANUARY, 2004 WITH THE REMAINING AREA OF THE LAND PURCHASED BY THE ASSESSEE IN 1987, ON WHICH 'KUBER SANKUL' PROJECT HA S NOW BEEN CONSTRUCTED. AS PER THE DETAILS SUBMITTED THE ASSESSEE HAD PURCHASED THE LAND ADMEASURING 34900 SQ. MT. VIDE DEVELOPMENT AGREEMENTS DATED 10.11.1987, FOR A CONSIDERATION OF RS.25 LAKHS. SUBSEQUENTLY, IT DEVELOPED AND CONSTRUCTED BUILDINGS WITH F LATS AND SHOPS ON 6337 SQ.MT. OF LAND, AND NAMED 'KUBER VIHAR' PROJECT, AS BELOW: - BUILDING NO. TYPE NUMBER OF FLATS/SHOPS BLDG. CONSTRUCTION COMMENCEMENT DATE COMPLETION DATE A2 FLATS 12 3.4.1992 (1) 27.08.1992 SHOPS 6 9.12.2005 ( 4) 2. 3.2006 A2 FLATS 12 3.4.1992 (1) 27.8.1992 SHOPS 6 9.12.2005 (4) 2.3.2006 BL FLATS 56 24.9.2002 (2) 11.7.2003 B2 FLATS 42 4.7.1995 6.6.1994 21.1.1993 (3) 9.8.1995 134 4.5 IN THE AMALGAMATED LAYOUT PLAN DATED 22.1.2004, ANOTHER BUILDING 'F' IS SHOWN AS PROPOSED AND APPROVED VIDE CC NO. 1487 DATED 27.12.2001, WHICH THE ASSESSEE STATED TO HAVE NOT CONSTRUCTED TILL DATE. THE ASSESSEE HAS CLAIMED THAT THERE WAS NO REVISION IN THE LAY - OUT/BUILDING PLANS AFTER 30.3.2007, ON TH E SAID LAND, ADMEASURING 34,900SQ.MT. THIS PLAN DATED 30.3.2007 SHOWS 4 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE THE AMALGAMATED PROJECT TO BE 'MIXED', AND NOT EXCLUSIVELY RESIDENTIAL. ASSESSEE HAS NOT SUBMITTED DETAILED BUILDING PLANS FOR EACH OF THE BUILDINGS TO SHOW AS TO WHETHER ANY COMMERCIAL ESTABLISHMENT IS PROPOSED IN THE NEW BUILDINGS OF THE AMALGAMATED PROJECT. 5. IN THE 'KUBERA SANKUL' PROJECT, AS STATED ABOVE 11 BUILDINGS WITH 28 FLATS EACH WERE PROPOSED TO BE CONSTRUCTED, AS PER THE ORIGINAL BUILDING PLAN DATED 23.1.2004 AND ADDITIONAL 7 BUILDINGS AS PER REVISED SANCTION PLAN VIDE CC NO.4792/06 DATED 30.3.2007. THE ASSESSEE HAS ADMITTED THAT OUT OF TOTAL OF 18 BUILDINGS, ONLY 8 WERE COMPLETED TILL 31.3.2008, AND REST WERE NOT COMPLETE TILL DATE, AND COMPLETION CERTIFICATES HAD SO FAR NOT BEEN RECEIVED. ASSESSEE HAS FURNISHED THE DETAILS OF COMPLETION WITH RESPECT TO 8 BUILDINGS, AS UNDER: - BUILDING TYPE BUILDING NAME NUMBER OF FLATS/ TENEMENTS BLDG. CONSTRUCTION COMMENCEMENT DATE* COMPLETION DATE C CHAMPA 28 23.1.2004 28.7.2005 A ASHOK 28 23.1.2004 28.7.2005 AL DEODAR 28 23.1.2004 28.7.2005 B BAKUL 28 23.1.2004 28.7.2005 D2 NILGIRI 28 23.1.2004 28.2.2008 D3 PARIJAT 28 23.1.2004 28.2.2008 D KANCHAN 28 23.1.2004 28.2.2008 D GULMOHAR 28 23.1. 2004 28.2.2008 CL CHINAR 28 23.1.2004 INCOMPLETE # DL SHIRISH 28 23.1.2004 INCOMPLETE CL CHANDAN 28 23.1.2004 INCOMPLETE F - 36 23.1.2004 INCOMPLETE G - 114 23.1,2004 INCOMPLETE GL - 42 23.1.2004 INCOMPLETE G2 - 16 23.1.2004 INCOMPLETE I COMMUNITY HALL - 23.1.2004 INCOMPLETE J - 14 23.1.2004 INCOMPLETE K - 60 23.1.2004 INCOMPLETE 590 23.1.2004 INCOMPLETE * IF THE KUBERA SANKUL IS TREATED AS A SEPARATE HOUSING PROJECT. 5 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE # AS ON 31.3.2008 AN D ALSO ON THE DATE OF ASSESSMENT. 5.2 THUS OUT OF 590 UNITS WHICH THE ASSESSEE CLAIMS TO BE RESIDENTIAL AND COMPRISING A NEW PROJECT, ONLY 224 RESIDENTIAL UNITS WERE COMPLETED BY 31.3.2008. IN THE AUDIT REPORT IN FORM 10CCB) ENCLOSED WITH THE RETURN, SIZE OF THE LAND FOR THE PROJECT HAS BEEN SHOWN TO BE 13740 SQ.MT, AND COMPLETION OF ONLY FOUR BUILDINGS VIDE COMPLETION CERTIFICATE DATED 9.9.2005, HAS BEEN SHOWN IN COL.23 OF THE REPORT. BUILT UP AREA OF RESIDENTIAL UNITS HAVE BEEN SHOWN FROM 507 SQ. FEET TO 1103 SQ. FEET . 4. THE ASSESSEE CONTENDED BEFORE THE ASSESSING OFFICER THAT THE KUBERA SANKUL WAS A SEPARATE HOUSING PROJECT, INDEPENDENT OF KUBERA VIHAR, COMPRISING OF RESIDENTIAL UNITS WITH BUILT - UP AREA BELOW 1500 SQ. FEET EACH, AND SEPARATE BOOKS OF ACCOUNTS HAVE BEEN MAINTAINED AND PROFITS OF THE PROJECT COULD BE SEPARATELY DETERMINED. THE ASSESSING OFFICER DID NOT AGREE WITH THE CONTENTION OF THE ASSESSEE THAT THE KUBERA SANKUL WAS A SEPARATE HOUSING PROJECT, INDEPENDENT OF KUBERA VIHAR . THE OPERATIVE PART OF THE REASON S FOR DENYING THE DEDUCTION TO THE ASSESSEE AS NOTED BY THE ASSESSING OFFICER IS AS UNDER: 9.8 THE TABLE AT PARA 9.4 ABOVE ALSO SHOWS THAT NON - RESIDENTIAL BUILT - UP AREA COMPRISING SHOP ETC. OF THE PROJECT UNDER CONSTRUC TION IS 433.91 SQ.MT. OR 4669.3 SQ. FEET. THIS ALSO VIOLATES THE CONDITION LAID DOWN IN CLAUSE (D) OF SECTION 80IB(10), WHICH REQUIRES THAT THE BUILT - UP AREA OF COMMERCIAL ESTABLISHMENTS IN A HOUSING PROJECT SHOULD BE RESTRICTED TO 2000 SQ. FEET, TO BE LEG IBLE FOR THE DEDUCTION. AS ALREADY MENTIONED ABOVE, THE REVISED BUILDING PLAN SHOWS THE PROJECT OF' MIXED' CATEGORY. EVEN IF THE SHOPS ETC. WITH A BUILT - UP AREA OF 4669.3 SQ. FEET ARE LOCATED IN THE EARLIER CONSTRUCTED BUILDINGS, THE PROFITS ON THE SALE OF RESIDENTIAL UNITS IN NEWLY CONSTRUCTED BUILDINGS ON THE SAID LAND CANNOT BE TREATED SEPARATELY. DEDUCTION U/S 80IB(10) IS NOT ALLOWABLE TO THE ASSESSEE ON THE PROFITS FROM CONSTRUCTION OF BUILDINGS IN A PROJECT WITH COMMERCIAL AREA EXCEEDING THE PRESCRIBE D LIMIT. THE ASSESSEE FAILS TO FULFILL THE CONDITION. 6 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE 10. NOTWITHSTANDING THE AFORESAID FACTS, AND WITHOUT PREJUDICE TO THE FINDINGS GIVEN IN FOREGOING PARAGRAPHS, EVEN FOR THE SAKE OF IT, IT WERE TO BE PRESUMED THAT THE BUILDINGS APPROVED VIDE PMC CONSTRU CTION COMMENCEMENT CERTIFICATE DATED 23.1.2004, QUALIFIES TO BE AN INDEPENDENT AND NEW UNDERTAKING AND 'HOUSING PROJECT', NAMED 'KUBERA SANKUL', THERE IS NO DISPUTE REGARDING THE FACT THAT EVEN THIS DOES NOT FIT IN THE CONDITIONS LAID IN SUB - CLAUSE (I) OF CLAUSE (A) OF SECTION 80IB(10) OF THE IT ACT. AS DETAILED IN PARA 5 ABOVE, ONLY 8 BUILDINGS OUT OF 18 PROPOSED AND APPROVED BUILDINGS, WERE COMPLETED BEFORE 31.3.2008. EXPLANATION (I) TO THE CLAUSE (A) MAKES IT AMPLY CLEAR THAT THE CONDITION APPLIES TO THE HOUSING PROJECT AS A WHOLE, NOT TO THE INDIVIDUAL BUILDING OF THE PROJECT. 10.2 THE ASSESSEE HAS CLAIMED TO HAVE COMPLETED ONLY FOUR BUILDINGS BEFORE THE END OF THE PREVIOUS YEAR ENDING 31.3.2006, RELEVANT FOR AY 2006 - 07. THE ASSESSEE HAS NOT EXPLAINED AS TO HOW THE HOUSING PROJECT QUALIFIES FOR DEDUCTION U/S 80IB(10) WHEN THIS CONDITION REGARDING COMPLETION BEFORE 31.3.2008 OF THE HOUSING PROJECT, AS APPROVED ON 23.1.2004 AS REVISED FROM TIME TO TIME, HAS NOT BEEN FULFILLED. WITHOUT GOING INTO MUCH DISCUS SION, IT IS HELD THAT ON THIS ACCOUNT ALSO, DEDUCTION IS NOT ALLOWABLE TO THE ASSESSEE ON THE PROFITS FROM CONSTRUCTION OF BUILDINGS OF THE PROJECT NOT COMPLETED BEFORE 31.3.2008 . 5. IN SUM AND SUBSTANCE , THE ASSESSING OFFICER HELD THAT THE ASSESSEE IS N OT ENTITLED FOR DEDUCTION U/S. 80IB(10) AS HE HAS VIOLATED THE CONDITIONS THAT (A) IN RESPECT OF THE COMMERCIAL AREA IN THE PROJECT AND (B) THE ASSESSEE HAS COMMENCED THE PROJECT PRIOR TO 01 - 10 - 1998 AND THERE ARE NO SEPARATE PROJECT I.E. THE KUBERA SANK UL AND KUBERA VIHAR BUT BOTH THE PROJECTS ARE ONE AND SAME AND KUBERA SANKUL IS THE EXTENSION OF THE KUBERA VIHAR . TH E ASSESSING OFFICER FINALLY DISALLOWED THE ENTIRE CLAIM OF THE ASSESSEE U/S. 80IB(10) OF THE ACT . THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND LD. CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE. THE OPERATIVE PART OF THE FINDINGS OF THE LD. CIT(A) IN THE A.Y. 2006 - 07 IS AS UNDER: 7 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE 3.7 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT AND THE MATERIAL AVAILABLE ON R ECORD. IT IS NOTICED THAT THE CLAIM U/S 80IB(10) FOR THIS YEAR AMOUNTING TO RS. 4,96,56,228/ - IS IN RESPECT OF 'KUBERA SANKUL' PROJECT OF THE APPELLANT WHICH HAS BEEN LATER DESIGNATED AS 'KUBERA SANKUL PHASE - I FOR THE FOU R BUILDINGS - A (ASHOK), B (BAKUL) , C (CHAMPA) AND A - 1 (DEVDHAR), COMPRISED IN THIS PROJECT. THE BUILDING PLAN APPROVAL FOR THIS PROJECT WAS TAKEN VIDE COMMENCEMENT CERTIFICATE NO. 1486 DATED 23.01.2004. THE ONLY ISSUE WHICH HAS BEEN HIGHLIGHTED BY THE A.O. FOR DISALLOWANCE OF THIS PROJECT IS THAT IT WAS A PART AND PARCEL OF THE EARLIER PROJECT CALLED 'KUBERA VIHAR', WHICH ALSO COMPRISED OF FOUR BUILDINGS AND HAD COMMENCED IN 19 9 2. THUS, THE A.O'.S CONTENTION IS THAT PROJECT IS MERELY AN EXTENSION OF 'KUBERA VIHAR' PROJECT WHICH WAS PRIOR T O 1998, IT WAS NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE I.T. ACT. THE A PPELLANT HAS HOWEVER EXPLAINED THAT WHEN THE 'KUBERA VIHAR' PROJECT WAS COMMENCED, AT THAT TIME 'KUBERA SANKUL WAS NOT ENVISAGED EVEN UPTO THE FINAL BUILDING PLAN APPROVAL DATED 25.06.2002. THIS IS ALSO REVEALED FROM THE BUILDING PLAN APPROVAL DATED 25.06.2002 VIDE CC NO.6788, WHICH SHOWED ONLY FOUR BUILDINGS AS A2, A3 AND B2 AS 'EXISTING' AND B1 AS 'PROPOSED'. THE FINAL COMPLETION CERTIFICATE IN RESPECT OF 'KUBERA VIHAR' PROJECT WAS IN RESPECT OF BUILDING B1 AND RECEIVED ON 11.07.2003. SUBSEQUENTLY, THE 'KUBERA SANKUL' PROJECT COMMENCED VIDE BUILDING PLAN APPROVAL NO. 1486 DATED 23.01.2004, CONSEQUENT TO THE AMALGAMATION PLAN DATED 22.01.2004. NOW, SINCE IN THE AMALGAMATION PLAN D ATED 22.01.2004, THE EARLIER BUILDINGS OF THE AMALGAMATED SURVEY NUMBERS WHICH ACTUALLY WERE EXISTING BUILDINGS OF 'KUBERA VIHARLPROJECT WERE ALSO SHOWN, THE A.O. HAS INCLUDED THESE BUILDINGS ALSO AND TAKEN THE ENTIRE AMALGAMATED SURVEY NUMBERS INCLUDED IN THE LAYOUT PLAN AS ONE PROJECT. ON THE OTHER HAND, THE A.O. HAS HIMSELF ACCEPTED THAT THESE BUILDINGS A2, A3, B1 AND B2 WERE ACTUALLY 'EXISTING BUILDINGS' SHOWN IN THE BUILDING PLAN DATED 23.01.2004. IT IS THUS EVIDENT THAT THE SAME ACTUALLY BELONGED TO THE EARLIER COMMENCED AND COMPLETED 'KUBERA VIHAR' PROJECT. 3.8 THE APPELLANT'S PRIMARY EXPLANATION IS THAT IT WAS ONLY AFTER THE PLOTS WERE AMALGAMATED AND THE LAYOUT WAS SANCTIONED ON 22.01.2004, THAT THE BUILDING PLANS RELATING TO THE 'KUBERA SANKUL' P ROJECT (NOW RECHRISTENED AS 'KUBERA SANKUL PHASE - L', FOR THE FOUR BUILDINGS APPROVED ON 23.01.2004) WERE APPROVED VIDE APPROVAL PLAN CC NO. 1486 DATED 23.01.2004 AND HAD SHOWED FOUR BUILDINGS 8 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE A (ASHOK), B (BAKUL), C (CHAMPA) AND A - 1 (DEVDHAR); WHEREAS ALSO SHOWING THE FOUR BUILDINGS OF 'KUBERA VIHAR' PROJECT AS EXISTING BUILDINGS. IN THE LAYOUT PLAN ANOTHER BUILDING C - 1 WAS INDICATED FOR PARKING WHICH WAS NOT APPROVED. IT IS EXPLAINED THAT THESE FOUR BUILDINGS OF 'KUBERA SANKUL PHASE - L' PROJECT WERE COMPLET ED VIDE CC DATED 09.09 . 2005. DURING HEARING, IT WAS EXPLAINED THAT THE OTHER FOUR BUILDINGS I.E. D (GULMOHAR), D (KANCHAN), D - 2 (NILGIRI) AND D - 3 (PARIJAT) WERE NOT SHOWN IN THIS FIRST BUILDING PLAN APPROVAL VIDE CC NO. 1486 DATED 23.01.2004. IN THE SUBMI SSION IT HAS BEEN CLARIFIED THAT THESE ADDITIONAL FOUR BUILDINGS CONSTITUTED KUBERA SANKUL PHASE - II, APPROVED VIDE CC NO. 4024 DATED 27.01.2005, IN RESPECT OF WHICH CLAIM DID NOT PERTAIN TO THIS YEAR BUT, TO THE NEXT A.Y. 2007 - 08. IT IS STATED THAT THESE BUILDINGS WERE COMPLETED ON 28.02.2008 VIDE CC NO. 1916 WHICH HAS ALSO BEEN ACCEPTED BY THE A.O. IN THE ASSESSMENT ORDER IN PARA 5. THE APPELLANT HAS ALSO STATED THAT EVEN IF THE CLAIM HAS BEEN MADE IN RESPECT OF KUBERA SANKUL PROJECT IN TWO PHASES, ARE C ONSIDERED JOINTLY, IT QUALIFIES FOR DEDUCTION U/S 80IB(10) OF THE IT. ACT. IT WAS CONTENDED THAT THIS WAS IF WE CONSIDER 'KUBERA SANKUL' PROJECT TO HAVE COMMENCED ON 23.01.2004, AND THEY HAVE BEEN COMPLETED BEFORE 31.03.2008 WITHIN THE STIPULATED TIME LIMI T. THUS, THE BASIS FOR DISQUALIFICATION ADOPTED BY THE A.O. HAS BEEN CONSIDERING THE BUILDINGS AND DATES OF COMMENCEMENT ETC. OF THE KUBERA VIHAR PROJECT TOGETHER WITH THE 'KUBERA SANKUL' PROJECT WHICH HAS COMMENCED AT A MUCH LATER POINT OF TIME ON 23.01 .2004. IT IS CLEAR FROM THE LAYOUT PLAN / BUILDING PLAN APPROVAL PERTAINING TO THE 'KUBERA SANKUL' PROJECT THAT THE BUILDINGS PERTAINING TO THE EARLIER 'KUBERA VIHAR' PROJECT HAVE BEEN SHOWN AS EXISTING BUILDINGS AND WERE ALSO ALREADY COMPLETED. SINCE THE LAYOUT PLAN IS IN CONSEQUENCE TO THE AMALGAMATION PLAN DATED 22.01.2004 FOR THE ENTIRE SURVEY NUMBERS INCLUDED, NECESSARILY THE EARLIER BUILDINGS OF KUBERA VIHAR PROJECT, WHICH ALSO INCLUDED COMMERCIAL BUILDINGS AS STATED BY THE A.O. WOULD BE SHOWN BUT, TH IS DOESN'T MEAN THAT THE KUBERA SANKUL PROJECT WHICH COMMENCED BY CC DATED 23.01.2004 WAS PART, PARCEL, AND EXTENSION OF THE 'KUBERA VIHAR' PROJECT WHICH STARTED IN 1992. THEREFORE, THE A.O'S BASIS OF DISQUALIFICATION OF CLAIM U/S 80IB(10) STATING THAT SIN CE THE 'KUBERA VIHAR' PROJECT COMMENCED PRIOR TO 01.10.98 NO DEDUCTION U/S 80IB(10) WOULD BE GIVEN TO 'KUBERA SANKUL' PROJECT, WAS NOT LEGALLY TENABLE. 9 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE 3.9 IN THIS CONNECTION, VIDE LETTER DATED 23.02.2011 THE APPELLANT HAS ALSO FILED REBUTTAL OF VARIOUS PA RAS IN THE A.O'S ORDER, WHICH HAS BEEN REPRODUCED ABOVE (PAGE - 8). IT IS STATED THAT IN VARIOUS PARAS THE A.O. HAS LINKED UP KUBERA VIHAR PROJECT AND 'KUBERA SANKUL' PROJECT EVEN THOUGH THE A.O. HAS ACCEPTED IN PARA 4.4 THE COMMENCEMENT AND COMPLETION DAT ES OF 'KUBERA VIHAR' BUILDINGS. IT IS ALSO CLARIFIED BY THE APPELLANT THAT THE REFERENCE TO COMMERCIAL BUILDINGS IN PARA 4.1 OF THE ASSESSMENT ORDER WAS INCORRECT, SINCE THERE WAS NO COMMERCIAL AREA AT ALL IN 'KUBERA SANKUL' PROJECT. IT HAS ALSO BEEN STAT ED BY THE APPELLANT THAT THE A.O. MENTIONED BUILDING F IN PARA 4.5, AS SANCTIONED AND APPROVED, WHEREAS, THIS BUILDING WAS ACTUALLY TO BE DEMOLISHED, AS ALSO SHOWN IN CC NO. 4792/06 DATED 30.03.2007. IT IS CLARIFIED THAT THIS BUILDING F NEITHER FORMED PART OF KUBERA VIHAR PROJECT OR KUBERA SANKUL PROJECT, BUT, WAS A SLUM REHABILITATION BUILDING TO BE HANDED OVER TO THE PUNE MUNICIPAL CORPORATION, AND WAS TO BE DEMOLISHED AND REBUILT LATER, WHILE COMPLETING THE KUBERA SANKUL PROJECT. THE APPELLAN T HAS ALSO CLARIFIED THE OTHER POINTS OF THE A.O. WHICH HAVE ALSO BEEN REBUTTED IN THE SUBMISSION. IT IS STATED THAT THE A.O'S CONTENTION THAT THE BUILDING COMMENCEMENT CERTIFICATE IS ISSUED ONLY AFTER THE PLINTH IS COMPLETED WAS INCORRECT SINCE UNLESS CC WAS OBTAINED, PERMISSION TO EVEN DIG THE GROUND IS NOT ALLOWED. IT IS FURTHER STATED THAT THE OBSERVATION IN PARAS 10.1 AND 10.2 IN THE ASSESSMENT ORDER WAS NOT CORRECT, STATING THAT THERE WERE 18 PROPOSED AND APPROVED BUILDINGS IN THE 'KUBERA SANKUL' PROJ ECT. IT IS CONTENDED THAT THE OTHER PROPOSED BUILDINGS WERE OF A LARGER LAYOUT PLAN OF SUBSEQUENT BUILDINGS / PROJECTS IN THE AMALGAMATED PLAN, AND COULD NOT BE MIXED WITH THE 'KUBERA SANKUL PROJECT, OF WHICH PHASE I AND PHASE II WERE APPROVED ON 23.01.200 4 AND 27.01.2005 RESPECTIVELY, IN ACCORDANCE WITH THE CORRESPONDING COMMENCEMENT CERTIFICATES. 3.10 FOR THE ABOVE EXPLANATION, THE APPELLANT HAS RELIED EXTENSIVELY ON THE DECISION IN THE CASE OF SAROJ SALES ORGANISATION OF MUMBAI TRIBUNAL (SUPRA) AND THAT OF APOORVA PROPERTIES & ESTATES P. LTD. OF ITAT PUNE (SUPRA). THE FACTS OF THESE TWO CASES WERE COMPARED WITH THAT OF THE APPELLANT'S CASE. IT IS NOTICED FROM THE DECISION OF APOORVA PROPERTIES & ESTATES P. LTD. FOR A.Y. 2003 - 04 GIVEN BY THE PUNE TRIBUNAL VIDE ITA NO.113/PN/2007 DATED 21.08.2009 THAT THE ISSUE INVOLVED IN THAT CASE ALSO WAS WHETHER KUMAR KARISHMA PHASE - II, WAS PART OF THE EARLIER PROJECT BY THE 10 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE NAME OF 'KUMAR KARISHMA' APPROVED IN 1995, AND WAS PART OF THE COMMON LAYOUT PLAN. CONSTRUCTION OF 'B' WING AND A1 TO A4 RESIDENTIAL BUILDINGS WERE COMPLETED BY 1998 FOR KUMAR KARISHMA PROJECT. HOWEVER, THE REMAINING, PORTION OF THE INITIALLY CONCEIVED PROJECT VIDE BUILDINGS NOS. A5 TO A11 WAS RECHRISTENED AS 'KUMAR KARISHMA PHASE - LL' AND CLAIM U/S 8 0IB(10) WAS MADE ACCORDINGLY FOR 'KUMAR KARISHMA PHASE - H' PROJECT. THE A.O. DISALLOWED THE CLAIM STATING THAT KUMAR KARISHMA PHASE - LL WAS NOT A UNIQUE AND DISTINCT PROJECT, BUT MERELY A PART OF THE KUMAR KARISHMA PROJECT FOR WHICH SANCTIO N AND COMMENCEMENT OCCURRED MUCH BEFORE 1998 I.E. IN 1995. BASED ON THE COMMON LAYOUT PLAN AND COMMON AMENITIES ETC., THE A.O. TREATED THE PHASE - II AS PART OF THE INITIALLY CONCEIVED KUMAR KARISHMA PROJECT, AND THEREFORE, DEDUCTION U/S. 80IB(10) WAS DENI ED FOR KUMAR KARISHMA PHASE - LL PROJECT. MOREOVER, DURING SURVEY, THE AREA OF 10 FLATS FOUND TO BE EXCEEDING 1500 SQ. FT., WHICH ALSO FORMED THE BASIS OF A.O'S CONCLUSION. IT WAS EXPLAINED THAT IT WAS FOR THOSE FLATS WHICH YERE SITUATED IN KUMAR KARISHMA PH ASE - I AND NOT IN PHASE - LL. FURTHER, THE A.0. A COMMERCIAL AREA EXCEEDING 2000 SQ. FT. WAS ALSO LOCATED IN THE THE ENTIRE LAYOUT AS ONE INTEGRATED PLAN THE A.O, DISALLOWED THE CLAIM U/S 80IB(10) FOR PHASE - LL. THE TRIBUNAL HELD THAT THE COMMERCIAL AREA WAS LESS THAN 10%, AND THEREFORE, DEDUCTION WAS ALLOWABLE IN VIEW OF PUNE SPECIAL BENCH DECISION IN THE CASE OF BRAHMA ASSOCIATES & OTHERS, (2009) 119 ITD 255 (PUNE)(SB). FURTHER, THE AREA EXCEEDING 1500 SQ. FT. IN AREA WAS NOT FOUND IN PHASE - LL OF THE PROJEC T; AND THE A.O. COULD NOT POINT OUT THE SAME IN THE REMAND PROCEEDINGS. RELYING ON THE DECISION IN THE CASE OF SAROJ SALES ORGANISATION OF MUMBAI TRIBUNAL (SUPRA) AND THAT OF BANGALORE ITAT IN THE CASE OF BRIGADE ENTERPRISES (P) LTD. (2008) 119 TTJ 269 (BA NG), IT WAS NOTED THAT SEPARATE SANCTION WAS TAKEN FROM THE PMC FOR PHASE - II OF THE PROJECT AND IT HAD SATISFIED THE CONDITION U/S 80IB(10) SEPARATELY. THE RELIANCE WAS EXTENSIVELY PLACED ON THE DECISION OF SAROJ SALES ORGANISATION, BY REPRODUCING PARAS THEREFROM, AND THE DEDUCTION U/S 80IB(10) WAS ALLOWED BY THE ITAT PUNE FOR THE KUMAR KARISHMA PHASE - LL PROJECT, TREATING IT TO BE INDEPENDENT PROJECT FROM THE PHASE - I, IN VIEW OF THE FACT THAT THE CONDITIONS GIVEN U/S 80IB(10) HAVE BEEN SATISFIED BY THE PHASE - LL OF THE PROJECT. 3.11 IN THE CASE OF SAROJ SALES ORGANISATION, THE MUMBAI ITAT HAD ALLOWED THE DEDUCTION U/S 80IB(10) EVEN THOUGH THE COMPANY CAPL 11 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE ORIGINALLY TOOK APPROVAL OF 11 WINGS IN THE PROJECT, BUT, CONSTRUCTED ONLY TWO AND SOLD THE RIGHTS B Y A SUB - DEVELOPMENT AGREEMENT TO THE ASSESSEE FOR THE REMAINING 9 WINGS - 6 BY ONE AGREEMENT AND THE OTHER 3 BY ANOTHER AGREEMENT. TAKING NOTE OF THE FACT THAT THE BUILDING COMMENCEMENT CERTIFICATES WERE OBTAINED BY THE ASSESSEE SAROJ SALES ORGANISATION SU BSEQUENTLY FOR THE 6 BUILDINGS (NAMED NISARG) AND 3 BUILDINGS (NAMED BREEZY CORNER) SEPARATELY, THE TRIBUNAL ALLOWED DEDUCTION U/S. 80IB(10) FOR THE 6 BUILDINGS OF 'NISARG', AND FOR WHICH THE ASSESSEE HAD TAKEN SEPARATE APPROVALS. FOR THIS PURPOSE, THE TRI BUNAL DID NOT APPROVE THAT INITIAL APPROVAL TAKEN BY THE COMPANY CAPL FOR THE 11 BUILDINGS AND EVEN THE FINAL THREE BUILDINGS WHICH WERE SEPARATELY CONSTRUCTED AS 'BREEZY CORNER' PROJECT, BY TAKING A SEPARATE BUILDING COMMENCEMENT CERTIFICATE, COULD BE INC LUDED AS A SINGLE PROJECT; EVEN THOUGH THEY WERE PART OF SAME LAYOUT PLAN, AND, INFACT, EVEN THOUGH THE BUILDING PLAN APPROVAL WAS INITIALLY TAKEN BY THE COMPANY CAPL. IT WAS HELD THAT THE PROJECT 'NISARG 1 AND 'BREEZY CORNER' WERE APPROVED BY DIFFERENT MEN CEMENT CERTIFICATES, AND WERE SEPARATE BY TIME, SPACE AND STATUTORY; AND EVEN IN DESIGNS AND MAINTENANCE OF SEPARATE BOOKS OF ACCOUNTS, APPELLANT HAD NOT CLAIMED DEDUCTION FOR 'BREEZY CORNER'. THE TRIBUNAL HELD THAT THE TWO PROJECTS COULD NOT BE CLUBBED, A ND ALLOWED DEDUCTION U/S 80IB(10) FOR THE 'NISARG' PROJECT. 3.12 IN THE APPELLANT'S CASE THE CONFUSION HAS ARISEN ONLY BECAUSE THERE WAS AN AMALGAMATION AND LAYOUT PLAN DATED 22.01.2004 IN WHICH THE EARLIER BUILDINGS A2, A3, B1 AND B2 WHICH PERTAINED TO TH E 'KUBERA VIHAR' PROJECT WERE ALSO SHOWN AS EXISTING BUILDINGS. HOWEVER, THE BUILDINGS PLAN APPROVAL WAS TAKEN FOR THE 'KUBERA SANKUL' PROJECT SUBSEQUENTLY BY THE CC DATED 23.01.2004. THEREFORE, THE FACT THAT THE KUBERA VIHAR PROJECT HAD COMMENCED PRIOR T O 1998, AND DID HAVE COMMERCIAL AREA IN VIOLATION OF THE PRESCRIBED LIMIT, DID NOT HAVE ANY IMPLICATION ON THE 'KUBERA SANKUL' PROJECT WHICH WOULD BE TREATED TO HAVE BEEN APPROVED VIDE CC DATED 23.01.2004., AND IT DID NOT HAVE ANY COMMERCIAL AREA IN THIS P ORTION. ALL THE MAJOR OBSERVATIONS OF THE A.O. HAVE BEEN MET ADEQUATELY BY THE APPELLANT IN ITS SUBMISSION. THE DECISION OF THE ITAT PUNE BENCH IN THE CASE OF APOORVA PROPERTIES & ESTATES P. LTD.(SUPRA) IS SQUARELY IN FAVOUR OF THE APPELLANT. CONSIDERING T HE SAME THE APPELLANT'S EXPLANATION IS FOUND TO BE TENABLE IN LAW AND CLAIM U/S 80IB(10) FOR ITS 'KUBERA SANKUL' PROJECT IS HELD TO BE 12 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE ALLOWABLE ON FACTS AND IN LAW. GROUND OF APPEAL NO. 1 IS THEREFORE ALLOWED. 6. WE MAY PUT ON RECORD THAT THE LD. CIT(A) HAS FOLLOWED HIS ORDER FOR THE A.Y. 2006 - 07 WHILE DECIDING THE SAME ISSUE FOR THE A.Y. 2007 - 08. NOW THE REVENUE BEING AGGRIEVED IS IN APPEAL BEFORE US. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE RECORD. THE LD. COUNSEL SUBMITS THAT THE FIRST PROJECT OF THE ASSESSEE IS KUBERA VIHAR . THE ASSESSEE ACQUIRED THE LAND IN S. NO. 224/226A AT HADAPSAR, PUNE ADMEASURING 34,900 SQ. MTRS. ON 10 - 11 - 1987. THE ASSESSEE STARTED THE HOUSING PROJECT UNDER THE NAME KUBERA VIHAR CONSISTING O F BUILDINGS A2, A3, B1 AND B2 VIDE CC NO. 1620 DATED 03 - 04 - 1992 AND SAME WAS COMPLETED VIDE CC NO. 562 DATED 11 - 07 - 2003. THE ASSESSEE STARTED THE ANOTHER HOUSING PROJECT KUBERA SANKUL , PUNE PHASE - I WHICH WAS COMMENCED ON 24 - 07 - 2004 VIDE CC NO. 1486 WHIC H CONSISTED OF FOUR BUILDINGS I.E. A (ASHOK), B (BAKUL), C (CHAMPA) AND A - 1 (DEVDHAR). IT ALSO S HOWN IN ITS LAY OUT BUILDING C - 1 AND IN THE LAY OUT PLAN THE ASSESSEE S HOWN THE BUILDINGS OF THE KUBERA VIHAR HAS BEEN COMPLETED. IN THE KUBERA SANKUL, PH ASE - I THE FOUR BUILDINGS I.E. A, B, C AND A - 1 WERE COMPLETED ON 09 - 09 - 2005 VIDE CC NO. 2981. THE ASSESSEE GOT APPRO V AL OF KUBERA SANKUL, PHASE - II VIDE CC NO. 4024 DATED 27 - 01 - 2005 WHICH CONSISTED OF FOUR BUILDINGS I.E. D (GULMOHAR), D 1 (KANCHAN), D - 2 ( NILGIRI) AND D - 3 (PARIJAT) AND THOSE BUILDINGS WERE ALSO COMPLETED ON 28 - 04 - 2008 VIDE CC NO. 1916. HE ARGUES THAT KUBERA SANKUL IS AN INDEPENDENT PROJECT AND THE SAME WAS UNDERTAKEN AFTER 01 - 10 - 1998 I.E. THE JANUARY, 2004 AND THE ASSESSING OFFICER MISIN TERPRETED THE LAY OUT PLAN EVEN IF IN THE SAID LAY OUT PLAN THE BUILDINGS OF KUBERA VIHAR HA VE BEEN SHOWN AS COMPLETED. HE SUBMITS THAT THERE WERE TWO SEPARATE PHASE OF THE KUBERA SANKUL AND BOTH THE PHASES INDEPENDENTLY QUALIFY FOR DEDUCTION U/S. 80I B(10) OF THE ACT. HE SUBMITS THAT WHERE THE BUILDINGS PLAN WERE APPROVED BEFORE 13 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE 01 - 04 - 2004 , THE DATE OF COMPLETION AS PER SEC. 80IB(10) WAS 31 - 03 - 2008 BUT IN THE CASE OF KUBERA SANKUL THE BUILDING PLANS WERE FIRST MENTIONED ON 23 - 01 - 2004 VIDE CC NO. 148 6 AND THOSE PROJECTS WERE COMPLETED ON 28 - 02 - 2008. HE SUBMITS THAT IN THE LAY OUT PLAN S O ME OTHER BUILDINGS I.E. C - 1(CHINAR), D - 1 (SHIRISH) AND C - 2 (CHANDAN) WERE SHOWN AS PARKING WHICH IS ALSO MISINTERPRETED BY THE ASSESSING OFFICER . T HE CC FOR THOSE BU ILDINGS WERE OBTAINED ON 30 - 03 - 2007 VIDE CC NO. 4792 AND THOSE THREE BUILDINGS DO NOT FORM PART OF THE KUBERA SANKUL . HE SUBMITS THAT THE ASSESSING OFFICER HAS NOT APPRECIATED THE CORRECT FACTS EVEN IF ALL THE DOCUMENTS WERE PLACED BEFORE HIM. 8. PER CONTRA, THE LD. DR SUBMITS THAT ADMITTEDLY THE ASSESSEE STARTED THE HOUSING PROJECT MUCH PRIOR TO 01 - 10 - 1998 AS PER EVIDENCE ON RECORD THAT IN THE YEAR 1992 . I N THE LAY OUT PLAN IS IN RESPECT OF THE SAME LAND THEN HOW IT CAN BE CLAIMED THAT THERE ARE SEP ARATE AND DISTINCT HOUSING PROJECT S. HE RE FER S TO SEC. 80IB(10) AND ADVANCE D HIS ARGUMENT BY STATING THAT EVEN IF THERE IS A MULTIPLE SANCTIONED , THEN THE DATE OF LAST SANCTIONED WILL RELATE BACK TO THE DATE ON WHICH THE FIRST APPROVAL WAS GIVEN TO THE PL AN. IN SUM AND SUBSTANCE , HE SUPPORTED THE APPROACH OF THE ASSESSING OFFICER TREATING ONLY ONE HOUSING PROJECT OF THE ASSESSEE WHICH ACCORDING TO THE ASSESSING OFFICER THE PROJECT WAS ORIGINALLY COMMENCED PRIOR TO 01 - 10 - 1998. 9. THE ASSESSEE FILED THE LA Y OUT PLAN BEFORE US AS WELL AS THE COPY OF THE COMMENCEMENT CERTIFICATES AND COMPLETION CERTIFICATES. IN THE PRESENT CASE THE ASSESSEE HAS CLAIMED THE DEDUCTION U/S. 80IB(10) IN RESPECT OF PROFIT DERIVED FROM THE PROJECT KUBERA SANKUL WHICH WAS SUBSEQ UENTLY DESIGNATED KUBERA SANKUL, PHASE - I WHICH CONSISTED OF THE FOUR BUILDINGS A, B, C AND A - 1 . T HE FACTS ARE NOT IN DISPUTE AS THE BUILDING PLAN FOR THOSE FOUR BUILDINGS WAS APPROVED VIDE CC NO. 1486 DATED 23 - 01 - 2004. THE RESERVATION OF THE ASSESSING OFFICER IS THAT KUBERA SANKUL IS A PART AND EXTENSION OF THE ASSESSEE S PROJECT I.E. 14 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE KUBERA VIHAR WHI C H ALSO COMPRISES OF THE FOUR BUILDINGS AND HAD COMMENCED IN THE YEAR 1992. EVEN IT IS NOT DISPUTED BEFORE US BY THE REVENUE THAT THE KUBERA SANKUL, PHASE - I THE PLAN FOR FOUR BUILDINGS WAS SANCTIONED IN JANUARY, 2004. THE ASSESSEE HAS NOT CLAIMED ANY DEDUCTION U/S. 80IB(10) IN RESPECT OF KUBERA VIHAR . AS PER BUILDING PLAN APPROVED DATED 25 - 06 - 2002 , THERE ARE FOUR BUILDINGS AS A - 2, A - 3, B - 2 AS EXIS TING AND B - 1 AS PROPOSED. THE FINAL CC IN RESPECT OF KUBERA VIHAR IS IN RESPECT OF THE BUILDING B - 1 WHICH WAS RECEIVED ON 11 - 07 - 2003. THE ASSESSEE GOT THE BUILDING PLAN APPROVAL IN RESPECT OF THE KUBERA SANKUL ON 23 - 01 - 2004 AS EXPLAINED BY THE LD. CO UNSEL AFTER THE ORDER OF AMALGAMATION OF THE PL OT DATED 22 - 01 - 2004. 10. IT IS ALSO SEEN THAT ON THE LAY OUT PLAN BUILDING A - 2, A - 1 AND B - 2 ARE SHOWN AS AN EXISTING BUILDINGS MORE PARTICULARLY PLAN WHICH IS APPROVED ON 23 - 01 - 2004. ON PERUSAL OF THE LAYO UT PLAN TO OUR UNDERSTANDING BOTH THE PROJECTS ARE INDEPENDENT AND SEPARATE AS WH EN KUBERA VIHAR WAS SANCTIONED AT THAT TIME KUBERA SANKUL WAS NOT CONCEIVED AT ALL. THE DEFINITION OF THE HOUSING PROJECT IS NOT GIVEN IN SEC. 80IB(10). IN THE CASE OF V ANDANA PROPERTY (SUPRA) HON'BLE HIGH COURT OF BOMBAY HAS HELD THAT EVEN THE HOUSING PROJECT CAN BE COMPRISE D OF THE SINGLE BUILDING ALSO AND IT IS NOT NECESSARY THAT FOR CLAIMING THE DEDUCTION U/S. 80IB(10) THE ASSESSEE SHOULD START THE HOUSING PROJECT ON PLOT OF LAND WHICH THERE IS NO OTHER BUILDING. ON THE ADMITTED FACT THAT THE HOUSING PLAN FOR THE KUBERA SANKUL PROJECT, PHASE - I AND PHASE - II WERE APPROVED FOR THE FIRST TIME ON 23 - 01 - 2004 AND 27 - 01 - 2005 RESPECTIVELY WHICH ARE SUPPORTED BY THE DOCUMENT ARY EVIDENCE LIKE SANCTIONS AND CC. S O IN OUR HUMBLE OPINION BOTH PROJECTS I.E. KUBERA VIHAR AND KUBERA SANKUL ARE INDEPENDENT PROJECTS. AFTER GIVING OUR ANXIOUS CONSIDERATION TO THE EVIDENCE PLACED BEFORE US AS WELL AS THE FACTS RECORDED BY THE LD. CIT(A) , WE ARE OF THE OPINION THAT THE LD. CIT(A) HAS RIGHTLY HELD THAT KUBERA SANKUL IS AN INDEPENDENT HOUSING PROJECT 15 ITA NO S. 639/PN/2011 & 373/PN/2012, M/S. KUMAR BEHARAY RATHI, PUNE AND IT CANNOT BE TREATED AS AN EXTENSION OF THE KUBERA VIHAR WHICH WAS COMMENCED IN THE YEAR 1992. THE GROUNDS TAKEN BY THE REVENUE ARE CONFINED ONLY TO THOSE REASONING AND NO SPECIFIC GROUND IS TAKEN ON THE ISSUE OF THE VIOLATION OF CONDITION OF THE COMMERCIAL AREA BY THE REVENUE. WE, THEREFORE, FIND NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A). ACCORDINGLY, THE SAME ARE CONFIRMED IN BOTH THE YEARS. 11. IN THE RESULT, BOTH THE APPEALS ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 26 - 05 - 201 4 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 26 TH MAY, 20 1 4 COPY TO 1 ASSESSEE 2 DEPARTMENT 3 THE CIT(A) - II, PUNE 4 THE CIT - II, PUNE 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIB UNAL PUNE