DCIT, CENT. CIR-30, MUMBAI V. SMT. MANJU GUPTA, MUMBAI

ITA 4432/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88652 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-03-2015
• Assessment Year: misc
• Appeal Filed On: 03-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARMANAND J DR
• Section: 80IB

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I, MUMBAI , . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.4432/MUM/2013 ASSESSMENT YEAR: 2010-11 ACIT, CC-22 & 30, ROOM NO.404,4 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400020 / VS. SMT MANJU GUPTA, RAJABAHADUR BLDG, 1 ST FLOOR, 28, BOMBAY SAMACHAR MARG, FORT MUMBAI-400023 ( / REVENUE) ( #$%& ' /ASSESSEE) P.A. NO. AASPG0264C / REVENUE BY SHRI PARMANAND J. -DR #$%& ' / ASSESSEE BY): SHRI J.P. BAIRAGRA ( # ) ' * / DATE OF HEARING : 26/03/2015 +, ) ' * / DATE OF PRONOUNCEMENT : 26/03/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS APPEAL IS FILED BY THE REVENUE AGAINST THE IM PUGNED ORDER DATED 11/03/2013 OF THE LD. FIRST APPELLATE A UTHORITY, SMT MANJU GUPTA 2 MUMBAI. THE FIRST GROUND RAISED BY THE REVENUE PERT AINS TO DELETING THE DISALLOWANCE OF DEDUCTION OF RS.57,39, 169/-, BY PLACING RELIANCE UPON THE DECISION OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE FOR EARLIER YEARS WHICH HAS NOT BEE N ACCEPTED BY THE DEPARTMENT AND APPEAL IS PENDING BEFORE THE HONBLE HIGH COURT. 2. AT THE TIME OF HEARING, THE LD. DR, SHRI PARMAN AND J. ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE G ROUND RAISED, BY SUBMITTING THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DID NOT APPRECIATE THE FACT AND MEREL Y FOLLOWED THE DECISION OF THE TRIBUNAL WHICH IS PENDING BEFOR E THE HONBLE HIGH COURT. ON THE OTHER HAND, SHRI J.P. B AIRAGRA, LD. COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSIO N ARRIVED AT IN THE IMPUGNED ORDER BY SUBMITTING THAT THE TRI BUNAL HAS ALREADY DECIDED THE ISSUE. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRI EF, ARE THAT, DURING THE RELEVANT PERIOD, THE ASSESSEE SOLD FLATS OUT OF THE CLOSING STOCK OF EARLIER YEARS AND CLAIMED DEDUCTIO N THEREUPON. THE LD. ASSESSING OFFICER REJECTED THE C LAIM OF THE ASSESSEE ON THE GROUND THAT THE DATE OF COMMENCEMEN T SHOULD BE THE DATE ON WHICH THE COMMENCEMENT CERTIF ICATE WAS ISSUED ON 02/03/2001. WITHOUT GOING INTO MUCH DELIBERATION, WE FIND THAT IN THE CASE OF ASSESSEE ITSELF FOR EARLIER ASSESSMENT YEARS IDENTICAL ISSUE AROSE AND THE TRIBUNAL VIDE ORDER DATED 12 TH AUGUST, 2011 IN ITA NO. 4332 TO 4336/MUM/2010, ITA NO.4806 TO 4810/MUM/2010 AND SMT MANJU GUPTA 3 ITA NO.4842/MUM/2010. IN VIEW OF THIS ASSERTION, WE ARE REPRODUCING HEREUNDER THE RELEVANT FINDING FOR READ Y REFERENCE:- 12. GROUND NOS. 1 & 2 REGARDING COMMENCEMENT OF TH E DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT. 12.1. THE ASSESSEE CLAIMED DEDUCTION U/S 80IB(10) IN RESPECT OF N G ESTATE, MIRA ROAD (E) PROJECT. THE ASSESSING OFFI CER DENIED THE DEDUCTION INTER-ALIA ON THE GROUND THAT THE PROJECT DID COMMENCE PRIOR TO 1.10.1998 AS THE DATE STIPULATED U/S 801B( 10). ON APPEAL, THE CIT(A) HELD THAT THE PROJECT COMMENCED AFTER TH E RECEIPT OF THE COMMENCEMENT CERTIFICATE ON 2.3.2001 WHICH IS MUCH AFTER THE DEAD LINE OF 1.10.1998 AS PER SEC. 80IB(10) OF THE ACT. 13 BEFORE US, THE LD DR HAS STRONGLY RELIED UPON T HE ORDER OF THE ASSESSING OFFICER AND SUBMITTED THAT THE IOD/COMMEN CEMENT CERTIFICATE HAS BEEN ISSUED IN RESPECT OF THE PROJE CT IN QUESTION BY THE LOCAL AUTHORITY ON 15.2.1991 (CORRECT DATE IS 1 5.5.1991). ONCE THE ASSESSEE RECEIVED THE IOD/COMMENCEMENT CERTIFIC ATE, THE ASSESSEE IS FREE TO COMMENCE THE PROJECT. THEREFORE , THE PROJECT IS CONSIDERED TO BE COMMENCED ONCE THE IOD/COMMENCEMEN T CERTIFICATE IS ISSUED BY THE LOCAL AUTHORITIES, WHI CH IS PRIOR TO 1.10.1998. 13.1 ON THE OTHER HAND, THE LD AR HAS SUBMITTED THA T INITIALLY THE BMC HAS ISSUED IOD/COMMENCEMENT CERTIFICATE DATED 1 5.5.1991 AND THEREAFTER, COMMENCEMENT CERTIFICATE WAS ISSUED ON 12.2.1993. HE HAS CONTENDED THAT THESE COMMENCEMENT CERTIFICAT ES WERE ISSUED FOR A PERIOD OF ONE YEAR AND WHEN THE CONSTRUCTION WORK WAS NOT SMT MANJU GUPTA 4 STARTED WITHIN THE ONE YEAR, THEY AUTOMATICALLY LAP SED, AS IT CAN BE SEEN FROM CLAUSE 28 OF THE COMMENCEMENT CERTIFICATE ISSUED ON 15.5.1991 AND 12.2.1993. THE LD AR HAS REFERRED THE COPIES OF THE COMMENCEMENT CERTIFICATES DATED 15.5.1991 AND 12.3. 1993. THE ENGLISH TRANSLATION OF THE SAME ARE PLACED AT PAGES 143 TO 147 AND 148 TO 152 OF THE PAPER BOOK. HE HAS FURTHER CONTEN DED THAT THEREAFTER COMMENCEMENT CERTIFICATE DATED 2.3.2001 WAS ISSUED BY THE BMC AND BY VIRTUE OF THE SAID COMMENCEMENT CERT IFICATE; THE EARLIER COMMENCEMENT CERTIFICATE ISSUED ON 12.2.199 3 WAS STAND CANCELLED. HE HAS REFERRED CLAUSE 22 OF THE COMMENC EMENT CERTIFICATE DATED 2.3.2001, THE ENGLISH TRANSLATION OF WHICH IS PLACED AT PAGES 153 TO 158 OF THE PAPER BOOK AND SUBMITTED THAT A REFERENCE OF CANCELLATION OF EARLIER COMMENCEMENT C ERTIFICATE DT 12.3.1993 IS MADE UNDER THIS CLAUSE 22. THE LD AR O F THE ASSESSEE, THUS, CONTENDED THAT WHEN THE EARLIER COMMENCEMENT CERTIFICATES WERE EXPIRED WHEN NO DEVELOPMENT AND CONSTRUCTION W AS COMMENCED WITHIN THE STIPULATED PERIOD AND THEREAFT ER WHEN COMMENCEMENT CERTIFICATE DT 2.3.2001 IS ISSUED, THE EARLIER CERTIFICATE STANDS CANCELLED. 13.2 HE HAS FURTHER POINTED OUT THAT SINCE THE ASS ESSEE DID NOT OBTAIN THE CERTIFICATE OF CLEARANCE AND EXEMPTION U /S 20 OF THE URBAN LAND CEILING ACT AND THEREFORE, DEVELOPMENT A ND THE CONSTRUCTION OF THE PROJECT COULD NOT BE COMMENCED. THE ASSESSEE FINALLY GOT ISSUED THE CERTIFICATE U/S 20 OF THE UL C ACT VIDE LETTER DATED 10.2.2000. THE LAND IN QUESTION WAS CONTINUED TO BE SHOWN AS LAND TILL 31.3.2001 AND NO EXPENDITURE TOWARDS THE CONSTRUCTION AND OTHER DEVELOPMENT HAS BEEN INCURRED PRIOR TO THE YE AR 2001 WHEN THE ASSESSEE PAID THE DEVELOPMENT CHARGES TO MBMC O N 29.1.2001. SMT MANJU GUPTA 5 THEREAFTER, THE CONSTRUCTION WORK WAS STARTED FROM THE YEAR ENDING 31.1.2002. 13.3 THE LD AR HAS ALSO REFERRED THE OCCUPATION CER TIFICATE DATED 23.7.2002 ISSUED FOR COMPLETION OF THE PROJECT IN P URSUANCE OF COMMENCEMENT CERTIFICATE ISSUED ON 2.3.2001. HE HAS FURTHER SUBMITTED THAT THE CONDITIONS OF COMMENCEMENT OF CO NSTRUCTION AND DEVELOPMENT OF HOUSING PROJECT ARE SEPARATE AND IND EPENDENT OF CONDITIONS OF THE APPROVAL OF THE HOUSING PROJECT. THE APPROVAL OF THE HOUSING PROJECT ON OR PRIOR TO THE DATE AS MENT IONED U/S 80IB(10) IS ONLY FOR THE FIXING TIME PERIOD OF COMP LETION OF THE PROJECT AND NOTHING TO DO WITH THE COMMENCEMENT OF THE PROJECT. THE PROJECT, WHICH HAS BEEN APPROVED ON OR AFTER 1. 4.2002, THE SAME HAS BEEN COMPLETED WITHIN FOUR YEARS FROM THE END OF THE FY IN WHICH APPROVAL BY LOCAL AUTHORITY. AFTER AMENDMENT, IF THE PROJECT IS APPROVED ON OR AFTER 1.4.2005, THEN THE PROJECT HAS TO BE COMPLETED WITHIN FIVE YEARS FROM THE END OF THE FY IN WHICH T HE PROJECT IS APPROVED BY THE LOCAL AUTHORITIES. THUS, THE LD AR HAS SUBMITTED THAT THE ASSESSING OFFICER HAS COMMITTED AN ERROR WHILE TAKING THE COMMENCEMENT DATE AS THE DATE OF APPROVAL OF THE PR OJECT BY THE LOCAL AUTHORITIES. HE HAS RELIED UPON THE ORDER OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF NIRMITI CONSTRUCTION VS DCIT REPORTED IN 95 TTJ 1117 . HE HAS ALSO RELIED UPON THE ORDER OF THE TRIBUNAL IN CASE OF ITO VS SHRI VIMALCHND M DHOKA IN ITA NO. 55 20/MUM/2005 DATED 19.5.2009. 14 WE HAVE CONSIDERED THE RIVAL CONTENTION AND PERU SED THE RELEVANT MATERIAL ON RECORD. THE AO DENIED THE DEDUCTION U/S 80IB(10) IN RESPECT OF N G ESTATE, MIRA ROAD (E) PROJECT INTER- ALIA ON THE GROUND THAT THE PROJECT WAS COMMENCED PRIOR TO 1.10 .1998. THE SMT MANJU GUPTA 6 ASSESSING OFFICER WAS OF THE VIEW THAT THE COMMENCE MENT DATE IS THE DATE WHEN THE ASSESSEE RECEIVED THE APPROVAL FOR TH E FIRST TIME FROM THE AUTHORITIES CONCERNED. THE RELEVANT PART OR THE ASSESSMENT ORDER IS REPRODUCED AS UNDER: .............................NEXT, THE ASSESSEE HA S CONTENDED THAT THE IOD DATE SHOULD NOT BE TAKEN INTO ACCOUNT WHILE DETERMI NING THE COMMENCEMENT DATE OF THE PROJECT. THIS STAND OF THE ASSESSEE IS ALSO NOT ACCEPTABLE. THE COMMENCEMENT DATE IS THE DATE W HEN THE ASSESSEE RECEIVED APPROVAL FOR THE FIRST TIME FROM THE AUTHORITY CONCERNED. ONCE THE ASSESSEE RECEIVES THE IOD, FOR ALL PRACTICAL PURPOSES, THE ASSESSEE IS FREE TO COMMENCE THE PROJ ECT. IN THIS CASE, THE IOD WAS RECEIVED IN 1991, WHICH IS WAY PRIOR TO 1.10.1998 STIPULATED IN SEC 80IB. IT IS EVIDENT FROM THE ASSESSMENT ORDER THAT THE A SSESSING OFFICER TOOK THE DATE OF COMMENCEMENT AS THE DATE WHEN THE PROJECT WAS APPROVED BY LOCAL AUTHORITY AND THE COMMENCEMENT CE RTIFICATE WAS ISSUED ON 15.5.1991. BEFORE DISCUSSION ON THE ISSUE IT IS OPT TO QUOTE THE RELEVANT PROVISION OF SECTION 80IB OF THE I T A CT. THE SUB SEC. (10) OF SEC. 80IB WAS AMENDED BY THE FINANCE ACT 20 00 W.E.F. 1.4.2001 READS AS UNDER: THE AMOUNT OF PROFITS IN CASE OF AN UNDERTAKING DE VELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE THE 31ST DAY OF MAR 2001 BY A LOCAL AUTHORITY, SHALL BE HUNDRED PER CENT OF THE PROFITS DERIVED IN ANY PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEA R FROM SUCH HOUSING PROJECT IF; SMT MANJU GUPTA 7 A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEV ELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCT 1998 AND COMPLETE THE SAME BEFORE THE 31ST DAY OF MAR 2003; B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAND WHI CH HAS A MINIMUM AREA OF ONE ACRE; AND C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT UP AREA OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITIES OF DELHI OR MUMBAI OR WITHIN TWENTY FIVE KILOMETRES FR OM THE MUNICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND A ND FIVE HUNDRED SQUARE FEET AT ANY OTHER PLACE. 14.1 INITIALLY THE PROVISION CONTEMPLATES THREE CON DITIONS FOR AVAILING THE DEDUCTION/S 80IB(10) NAMELY ; (I) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT ON OR AFTER 1.10.98 (II) THE PROJECT IS ON THE SIZE OF MINIMUM ONE ACRE OF THE PLOT AND (III) THE RESIDENTIAL UNIT HAS MAXIMUM BUILT UP AREA OF 1000 SQ.FT OR 1500 SQ.FST AS THE CASE MA Y BE. 14.2 AT THAT POINT OF TIME, THE AMOUNT OF PROFITS O F UNDERTAKING WITH RESPECT TO A HOUSING PROJECT APPROVED BY THE LOCAL AUTHORITY WAS ELIGIBLE FOR DEDUCTION OF SUCH HOUSING PROJECT COMM ENCES THE DEVELOPMENT AND CONSTRUCTION ON OR AFTER 1.10.98 AN D COMPLETES THE SAME BEFORE 31.3.2003. SUBSEQUENTLY, THE SUB SEC. ( 10) HAS BEEN SUBSTITUTED BY THE FINANCE ACT 2003 W.E.F 1.4.2002 AND THEN BY THE FINANCE ACT (NO.2) 2004 W.E.F 1.4.2005. THE CONDITI ON (A) HAS BEEN FURTHER ENLARGED IN SUB CLAUSES. (I) AND (II) AS UN DER: SMT MANJU GUPTA 8 (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DE VELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCT 1998 AND COMPLETE SUCH CONSTRUCTION:- I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPRO VED BY THE LOCAL AUTHORITY BEFORE THE 1ST DAY OF APRIL, 2004 ON OR B EFORE THE 31ST DAY OF MARCH 2008; II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN, OR, IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1ST DAY OF APRI L, 2004,BUT NOT LATER THAN THE 31ST DAY OF MARCH, 2005, WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. EXPLANATION FOR THE PURPOSE OF THESE CLAUSES: I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUS ING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUILDIN G PLAN OF SUCH HOUSING PROJECT IS FIRST APPROVED BY THE LOCAL AUTH ORITY. II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSI NG PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CER TIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTH ORITY 15. THUS, FROM THE PLAIN READING OF PROVISION OF S UB.SEC.(10) OF SEC. 80IB, IT IS CLEAR THAT THE TIME OF APPROVAL OF THE PROJECT IS RELEVANT FOR THE PERIOD OF COMPLETION OR IN OTHER WORDS, THE DURATION OF COMPLETION PERIOD RECKONED FROM THE DATE OF APPROVA L OF THE PROJECT BY THE LOCAL AUTHORITY. SINCE THE POST SUBSTITUTION OF PROVISIONS BY FINANCE ACT 2002, THE DATE OF COMPLETION PROVIDED U NDER SUB CLAUSE SMT MANJU GUPTA 9 (I) & (II) DEPENDS AS WHEN THE PROJECT HAS BEEN APP ROVED BY THE LOCAL AUTHORITY. THEREFORE, IN THE CASE WHEN MORE T HAN ONE APPROVAL S HAVE BEEN GRANTED BY THE LOCAL AUTHORITY, THE EXP LANATION TO CLAUSE (A) HAS BEEN INSERTED TO CLARIFY THAT THE DATE ON W HICH THE FIRST APPROVAL HAS BEEN GRANTED TO THE BUILDING PLAN OF T HE HOUSING PROJECT SHALL BE DEEMED TO BE THE DATE OF APPROVAL. THEREFORE, THE TERM USED AS COMMENCED OR COMMENCES DEVELOPMENT AN D CONSTRUCTION OF HOUSING PROJECT IS SEPARATE AND DI STINCT FROM THE APPROVAL OF THE HOUSING PROJECT. THERE IS NO REST RICTION ABOUT THE APPROVAL OF THE HOUSING PROJECT PRIOR TO 1.10.98 WH EREAS THERE IS A THREAD-HOLD CONDITION FOR THE HOUSING PROJECT TO AV AIL DEDUCTION U/S 80IB(10) THAT THE SAID PROJECT HAS BEEN COMMENCED D EVELOPMENT AND CONSTRUCTION ON OR AFTER 1.10.98. THE PROVISION DOES NOT POSTULATE THAT THE FIRST APPROVAL OF PLAN SHALL BE DEEMED COMMENCEMENT OF DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT. THEREFORE, THE DATE OF APPROVAL IN CASE IN HAND HAS NO RELEVANCE SO FAR AS THE ISSUE OF COMMENCEMENT OF DE VELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT IS CONCERNED. T HERE IS NO DISPUTE ABOUT THE COMPLETION OF THE PROJECT WITHIN THE STIP ULATED PERIOD OF TIME; THEREFORE, THE DATE OF APPROVAL HAS NO ROLE T O PLAY. EVEN OTHERWISE, IT IS NOT THE CASE OF THE REVENUE THAT T HE ASSESSEE HAS ACTUALLY STARTED THE WORK OF DEVELOPMENT AND CONSTR UCTION PRIOR TO 1.10.L98 OR IN THIS REGARD HAS INCURRED ANY EXPENDI TURE TOWARDS DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT . WE HAVE REFERRED THE ASSESSMENT ORDER IN THE EARLIER PART O F THIS ORDER AND NOTED THAT THE ASSESSING OFFICER TOOK THE DATE OF C OMMENCEMENT OF THE DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PRO JECT WHEN THE COMMENCEMENT CERTIFICATE DT 15.5.91 WAS ISSUED. IN OUR OPINION, THE SMT MANJU GUPTA 10 SAID APPROACH OF THE ASSESSING OFFICER IS TOTALLY C ONTRARY TO THE PROVISIONS OF SEC.80IB(10). 16 FURTHER, THE PUNE BENCH OF THE TRIBUNAL IN THE C ASE OF NIRMITI CONSTRUCTION VS DCIT REPORTED N 95 TTJ 1117 HAS HE LD AS UNDER: IN OUR VIEW, THE ACTIVITIES, VIZ APPROVAL OF THE PLAN, MARKETING FOR BOOKING THE RESIDENTIAL UNITS, AVAILING OF FINANCE, RECEIPT OF ADVANCE BOOKING MONEY, TC., COULD NOT BE CONSTRUED TO MEAN COMMENCEMENT OF DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT. AS PR THE CERTIFICATE OF ARCHITECT, THE PROJECT OF CONSTRUCTI NG HOUSING UNITS COMMENCED AFTER 1ST OCT, 1998. THE ASSESSEE HAD ALS O OPENED BANK ACCOUNT IN THE NAME OF HOUSING PROJECT, NIRMITI VIH AR ON 29TH OCT 1998. ALL THE FACTS INDICATE THAT DEVELOPMENT AND C ONSTRUCTION COMMENCED AFTER 1ST OCT 1998. IT IS ALSO SEEN THAT THE ASSESSEE HAD INCURRED A SUM OF RS. 6000 TOWARDS THE CLEANING OF LAND AND ALSO INCURRED AN EXPENSE OF RS. 1,140 TOWARDS POOJA EXPE NSE. IN OUR CONSIDERED VIEW, THESE EXPENSES DO NOT INDICATE THA T DEVELOPMENT AND CONSTRUCTION OF HOUSING PROJECT HAD BEEN COMMEN CED BEFORE 1ST OCT 1998. RS. 6000 WAS INCURRED FOR CLEANING HE LAN D, SO THAT CORRECT MEASUREMENT OF THE LAND COULD BE DONE. AS P ER THE PROVISIONS OF THE MAHARASHTRA LAND REVENUE CODE, 19 66, MENTIONED HEREINABOVE, THERE IS A PROCEDURE FOR CON VERSION OF USE OF LAND FROM ONE PURPOSE TO ANOTHER AND THERE IS A PROVISION FOR PENALTY ALSO FOR VIOLATING THE PROVISIONS OF S.44 O F THE SAID CODE. THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE ASS ESSEE HAD MADE ANY MATERIAL CHANGE ON THE LAND BEFORE 1ST OCT 1998 . FROM THE ABOVE DISCUSSION, IT WOULD BE CLEAR THAT THE ASSESS EE HAD COMMENCED THE DEVELOPMENT AND CONSTRUCTION OF THE H OUSING PROJECT AFTER 1ST DAY OF OCT 1998 AND COMPLETED THE SAME BE FORE THE SMT MANJU GUPTA 11 SPECIFIED DATE. THERE IS NO DISPUTE THAT THE ASSESS EE HAD FULFILLED THE REMAINING CONDITIONS UNDER THE LAW FOR CLAIMING DED UCTION U/ 80IB(1) OF THE ACT. ACCORDINGLY, WE REVERSE THE FIN DINGS OF THE CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW TH E DEDUCTION TO THE ASSESSEE 17 IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT TH E DATE OF COMMENCEMENT OF DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT IS THE DATE WHEN THE ASSESSEE ACTUALLY STAR TED AND CARRIED OUT THE WORK OF DEVELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT AND NOT THE DATE WHEN THE PROJECT WAS FIRST APPROVE D BY THE LOCAL AUTHORITY. THE ORDER OF THE CIT(A) IS UPHELD, QUA, THIS ISSUE. 2.2. IN THE LIGHT OF THE ABOVE DECISION, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN BY THE LD. COMMISSIONER OF INC OME TAX (APPEALS), SO FAR AS, THE CONTENTION OF THE REVENUE THAT APPEAL HAS BEEN FILED BEFORE THE HONBLE JURISDICTIONAL HI GH COURT, WE ARE OF THE VIEW, THAT IN THE ABSENCE OF ANY CONTRAR Y DECISION FROM ANY HONBLE HIGHER FORUM, AS PER JUDICIAL DISC IPLINE, THE ORDER OF THE TRIBUNAL WILL STAND. 3. THE NEXT GROUND PERTAINS TO HOLDING THAT THE AMO UNT OF RS.3,30,925/-, RECEIVED FOR AMENITIES, BE ASSESSED AS INCOME FROM HOUSE PROPERTY INSTEAD OF OTHER SOURCES AS HAS BEEN HELD. THE LD. DR, ADVANCED HIS ARGUMENTS IDENTICAL TO THE GROUND RAISED. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. SMT MANJU GUPTA 12 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS, IN BRI EF, ARE THAT THE ASSESSEE OFFERED INCOME OF RS.11,87,903/- UNDER THE HEAD INCOME FROM HOUSE PROPERTY. THE ASSESSEE PRODUCED LEASE AGREEMENT WITH UKO BANK ON A LEASE RENT OF RS.54,29 0/- PER MONTH AND ANOTHER AT RS.26,474/- PER MONTH FOR AMEN ITIES. THE ASSESSING OFFICER CALCULATED THE RENT FROM AMEN ITIES TO THE TUNE OF RS.3,30,925/- AS TAXABLE FROM OTHER SOURCES . ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX ( APPEALS), IT WAS CLAIMED THAT THE ASSESSEE ENTERED INTO TWO S EPARATE AGREEMENTS AND THERE IS NO MENTION OF AMENITIES AND FURTHER IN THE BOOKS OF ACCOUNTS ALSO NO SUCH AMENITIES WER E SHOWN. IT WAS ALSO CLAIMED THAT EVEN THE BANK TREATED THE AMOUNT PAID TO THE ASSESSEE AS RENT ONLY AND DEDUCTED TDS THEREFROM. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOUND THAT THE ASSESSEE, AS OWNER OF THE BUILDING, WAS EXPLOITING THE PROPERTY BY LETTING OUT THE SAME, BY REALIZING INCOME, BY WA Y OF RENT, THUS, THE INCOME SO DERIVED WAS HELD TO BE ASSESSAB LE UNDER THE HEAD HOUSE PROPERTY. THE REVENUE IS AGGRIEVED AND IS IN APPEAL BEFORE THIS TRIBUNAL. ON CONSIDERATION OF T HE OBSERVATION MADE IN THE ASSESSMENT ORDER AND CONCLU SION DRAWN IN THE IMPUGNED ORDER, WE FIND THAT LETTING O UT OF BUILDING WITH CERTAIN AMENITIES SECTION 56(2)(III) OF THE ACT IS NOT APPLICABLE AS IT IS APPLICABLE FOR LETTING OUT MACHINERY AND PLANT ETC. ADMITTEDLY, THE BUILDING IS LET OUT ALON GWITH AMENITIES, THEREFORE, IT IS ASSESSABLE UNDER THE HE AD HOUSE PROPERTY, CONSEQUENTLY, THE STAND OF THE LD. COMMIS SIONER OF INCOME TAX (APPEALS) IS AFFIRMED BECAUSE WITHOUT AM ENITIES SMT MANJU GUPTA 13 THE BARE BUILDING IS OF NO USE AND AMENITIES ARE TH E BASIC FEATURES OF A PROPERTY. EVEN OTHERWISE, OUR VIEW I S FIND SUPPORTS FROM THE DECISION FROM HYDERABAD BENCH OF THE TRIBUNAL IN DCIT VS G.RAGHURAM (2010) 39 SOT 406 ;2 010, 46 DTR 136. FINALLY, THE APPEAL OF THE REVENUE IS HAVING NO MER IT, CONSEQUENTLY, DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 26/03/2015. - ) +, . #/ 26 /0 3 /2015 ) 4 SD/ - (D. KARUNAKARA RAO) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER ( MUMBAI; . # DATED : 26/03/2015 F{X~{T? P.S/. #.. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. 6789 / THE APPELLANT 2. :;89 / THE RESPONDENT. 3. ( <' ( 67 ) / THE CIT, MUMBAI. 4. ( <' / CIT(A)- , MUMBAI 5. >? :'#$ , 67* 6$ , ( / DR, ITAT, MUMBAI 6. % @ / GUARD FILE. / BY ORDER, ;>7' :' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI