DCIT CIR 2, KALYAN V. SURESH L. WADHWA (HUF), KALYAN

ITA 4743/MUM/2009

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9312 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 10-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 13-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 80IB

Judgement Text

ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 1 OF 11 IN THE INCOME TAX APPELLATE TRIBUNAL 'I' BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO.4743/MUM/2009 (ASSESSMENT YEAR: 2006-07) DCIT CIRCLE-2 RANI MANSION, MURBAD ROAD, KALYAN, MUMBAI VS. SURESH L. WADHWA (HUF), PROP. ASHISH DEVELOPERS, LORD SHIVA PARADIE, OPP. BIRLA COLLEGE, CHICKANGHAR, KALYAN(W) 421 301 MUMBAI (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI MANOJ KUMAR, DR ASSESSEE BY: SHRI VIJAY MEHTA DATE OF HEARING: 13/12/2012 DATE OF PRONOUNCEMENT: 31/12/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THIS IS A REVENUE APPEAL AGAINST THE ORDERS OF THE CIT (A)-II THANE, DATED 10.06.2009. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE AND IN THE LAW, THE HON'BLE CIT (A)-II THANE E RRED IN ALLOWING THE BENEFIT OF DEDUCTION UNDER SECTION 80I B(10) CLAIMED BY ASSESSEE OF ` .76,94,360/-. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE HON'B LE CIT(A)-II THANE BE CANCELLED AND THAT OF THE A.O BE RESTORED. 2. BRIEFLY STATED, ASSESSEE HUF IS ENGAGED IN THE BUSI NESS OF BUILDERS AND DEVELOPERS UNDER THE NAME AND STYLE OF M/S ASHISH DEVELOPERS. ASSESSEE IS ALSO A PARTNER IN A FIRM M/ S OM SHREE ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 2 OF 11 GANESH CONSTRUCTION CO. THE INCOME FROM BUSINESS AN D ALSO THE SHARE OF PROFIT FROM THE SAID FIRM HAS BEEN CLAIMED AS EXEMPT. ASSESSEE ALSO DERIVED INCOME FROM OTHER SOURCE COMP RISING OF INTEREST, DIVIDEND AND COMPENSATION INCOME ETC. ASS ESSEE SHOWN THE BUSINESS INCOME FROM THE PROPRIETARY CONCERN NA MELY M/S ASHISH DEVELOPERS AT ` .76,94,360 AND HAS CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE I.T. ACT ON THE SAID INCOME . 3. THE PROPRIETARY CONCERN OF ASSESSEE HAS UNDERTAKEN THE CONSTRUCTION WORK RELATING TO BUILDING VIZ., BUILDI NG NO.1 TO 6 KNOWN AS SHIV AMRUT DHAM LOCATED AT SURVEY NO.22, N O.22 H.NO.1(PT) (7) AND S.NO.23 H.NO. PT 2 AT GAURIPADA, KALYAN ON A PLOT ADMEASURING 5318.46 SQ. METERS EQUIVALENT TO 1 .33 ACRES. 4. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, AS SESSEE HAS FILED DETAILS SUCH AS COPY OF ORIGINAL PLAN AND A COPY OF AMENDED PLAN ETC. THE AMENDED PLAN WAS APPROVED BY KDMC VIDE THEIR NO. KDMC/NRV/BP/KV/303-125 DATED 29.09.2004. ASSESSEE HAS ALSO FILED DETAILS OF FLAT RECEIPTS, DETAILS OF EXPENDITURE ETC. AS PER THE PROFIT & LOSS A/C THE BUSINESS PROFIT HAS B EEN DETERMINED AT ` .65,14,585 AND AFTER DISALLOWING THE CLAIM OF DONAT ION ALONG WITH THE DISALLOWANCE UNDER SECTION 40(A)(IA), THE BUSIN ESS INCOME HAS BEEN WORKED OUT AT ` .76,94,360 IN THE COMPUTATION OF INCOME. THE SAME HAS BEEN CLAIMED AS EXEMPT UNDER SECTION 80IB( 10) OF THE I.T. ACT, 1961. 5. AO ON EXAMINATION OF THE RECORDS NOTICED THAT THE O RIGINAL PLAN WAS APPROVED AS EARLY AS 23.07.2003 FOR THE PR OJECT OF 14 BUILDINGS TO BE CONSTRUCTED. ASSESSEE ACQUIRED DEVE LOPING RIGHTS FROM M/S JAYSHREE BUILDERS IN RESPECT OF LAND ADMEA SURING 5318.46 SQ. METERS. INSPITE OF REVISED PLAN SANCTIO NED BY THE KDMC ON 29.09.2004 IT STILL SHOWED PROJECT OF 14 BUILDIN GS ON THE TOTAL LAND OF 24037.31 SQ. METERS. ACCORDING TO AO, THE C LAIM CANNOT BE ALLOWED AS THE ENTIRE PROJECT WAS NOT COMPLETED BEF ORE THE TIME LIMIT ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 3 OF 11 SPECIFIED. HE ALSO FURTHER NOTICED THAT THE ENTIRE PROJECT HAS COMMERCIAL AREA IN BUILDING NO.4, 6 & 10 AND THEREF ORE, ASSESSEE IS ALSO NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB( 10). 6. BEFORE THE CIT (A) ASSESSEE CONTESTED THE VARIOUS O BSERVATIONS OF AO AND AFTER CONSIDERING THE SUBMISSIONS THE LEA RNED CIT (A) ALLOWED ASSESSEES CONTENTIONS BY DIRECTING AO TO A LLOW DEDUCTION UNDER SECTION 80IB(10) AS UNDER: 4. I HAVE CAREFULLY CONSIDERED BOTH THE ARGUMENTS. THE CASE OF APPELLANT IS THAT THEIR PROJECT SHIV AMRUT DHAM AT GAURI PADA, KALYAN COMPLIES WITH CONDITIONS LAID DO WN UNDER SECTION 80IB(10) AS (A)- THE PROJECT OF APPELLANT HAS COMMENCED ON 29/09/2004 I.E. AFTER 01-10-1998 BUT BEFORE 31-03-2007. THE SIX BUILDINGS DEVELOPED BY APPELLANT ARE COMPLE TED BEFORE 31/03/2008 AS PER COMPLETION CERTIFICATES DT.05/10/04 (BUILDING NO.6), DT1 0/02/2005 (BUILDIN G NO.5) AND DT.31103/2008 (BUILDING NO.1TO 4). (B) - THE PROJECT IS ON LAND ADMEASURING 1.33 ACRE I.E. MORE THAN ONE ACRE. (C) - IT IS A HOUSING COMPLEX CONSISTING OF RESIDEN TIAL UNITS AND BUILT UP AREA OF ALL THE FLATS IS LESS THAN 150 0 SQ.FT AS IT IS SITUATED BEYOND 25 KMS FROM MUNICIPAL LIMITS OF MUMBAI. (D)- THE BUILT UP AREA OF SHOPS AND OTHER COMMERCIA L ESTABLISHMENT INCLUDED IN THIS PROJECT DOES NOT EXC EED 2000 SQ.FT. HOWEVER ACCORDING TO AO, ASSESSEE DOES NOT BECOME ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) OF TH E ACT ON ACCOUNT OF THE FACT THAT THE ASSESSEE'S PROJECT IS NOT COMPLETE FOR THE REASON THAT THE CONSOLIDATED PROJ ECT CONSISTS OF 14 BUILDINGS EVEN THOUGH APPELLANT HAS DEVELOPED ONLY SIX BUILDINGS THEREIN. THE FACT OF M ATTER IS THAT APPELLANT HAD PURCHASED DEVELOPMENT RIGHTS IN RESPECT OF PART OF LAND BEARING S NO. 22/23 AT GAU RIPADA KALYAN(W) FROM M/S. JAYSHREE DEVELOPERS. THIS LAND ORIGINALLY BELONGED TO KRISHNA BALU MANERKAR AND OT HERS. THE DEVELOPMENT RIGHTS THEREIN WERE ORIGINALLY PURC HASED ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 4 OF 11 BY M/S. JAYSHREE DEVELOPERS. THE PLAN FOR ENTIRE L AND WAS SANCTIONED BY KDMC ON 25/01/2001 AND 5/4/2003. THE PRINCIPAL DEVELOPERS WERE NOT ABLE TO DEVELOP THE E NTIRE LAND AND THEREFORE DISPOSED OFF DEVELOPMENTS IN RES PECT OF CONSTRUCTION OF SIX MULTISTORIED BUILDINGS TO APPEL LANT (BUILDING NO.1 TO 6) AND M/S. VIDHI BUILDERS (BUILD ING NO.11 TO 14). THUS THREE INDEPENDENT DEVELOPERS HAVE DEVE LOPED THREE DIFFERENT PROJECTS ON ONE LAND UNDER NAME AND STYLE OF SHIV AMRUT DHAM' (APPELLANT), 'VIDHI' (VIDHI DE VELOPERS) AND AMRUT DHAM (JAYSHREE BUILDERS). AS FAR AS APPEL LANT'S PROJECT SHIV AMRUT DHAM IS CONCERNED. AREA OF LAND IS 1.33 ACRES (MORE THAN ONE ACRE). THIS FACT IS NOT DISPUT ED BY AO. SIMILARLY BUILT UP AREA OF EACH RESIDENTIAL UNIT IS LESS THAN 1500 SQ.FT. I.E. WITHIN PERMISSIBLE LIMIT SINCE THE PROJECT IS SITUATED BEYOND 25 KMS FROM BOMBAY MUNICIPAL LIMITS . THIS FACT IS ALSO NOT UNDER DISPUTE. AS REGARDS BALANCE TWO CONDITIONS, I.E. COMM ERCIAL AREA AS WELL AS COMPLETION, THE APPELLANT HAS CONT ENDED THAT TOTAL COMMERCIAL AREA IN THEIR OWN PROJECT SH IV AMRUT DHAM' IS 1863.57 I.E. LESS THAN 2000 SQ.FT. SIMILAR LY THEIR PROJECT OF SIX BUILDINGS COMPLETED IN FEB'2008 AND COMPLETION CERTIFICATES HAVE BEEN OBTAINED ON 31/3/ 2008 WITHIN THE TIME PRESCRIBED UNDER LAW. THE AO HAS HOWEVER TREATED THE THREE INDEPEND ENT PROJECTS DEVELOPED BY THREE DIFFERENT DEVELOPERS AS ONE BECAUSE A COMMON PLAN WAS APPROVED BY LOCAL AUTHORI TY. AO HAS THUS CONCLUDED THAT SINCE THE COMPLETION CER TIFICATE FURNISHED BY APPELLANT SHOWS IT PART COMPLETION, HENCE THE BENEFIT OF DEDUCTION UNDER SECTION 80IB(10) CAN NOT BE EXTENDED TO APPELLANT. IT IS SEEN FROM THE ASSESSME NT ORDER THAT AO HAD RAISED A QUERY REGARDING SUB DIVISION OF LAND. APPELLANTS HAVE AGREED THAT THEY HAVE NOT SU B DIVIDED THE LAND AS IT WAS NOT MANDATORY UNDER ANY LAW. MORE SO BECAUSE, APPELLANTS WERE HAVING ONLY THE DEVELOPMENT RIGHTS OF PART OF LAND. THE FACT IS THA T THE PROJECT OF APPELLANT SHIV AMRUT DHAM CONSISTING O F BUILDING NO.1 TO 6 IS LYING ON OPPOSITE SIDE OF BAL ANCE AREA OF SAME LAND CONSISTING OF BUILDING NO.7 TO 14 AND THESE ARE DIVIDED BY D.P. ROAD. THE A.R HAVE HARPED ON T HE FACT THAT AO HAS IGNORED APPELLANTS REQUEST TO VERIFY T HIS FACT ALTHOUGH THIS FACT IS ON RECORD AND AS PER APPELLAN T THIS FACT STANDS VERIFIED BY VALUATION OFFICER AND THE PREDECESSOR OF AO WHILE COMPLETING ASSESSMENT FOR ASSESSMENT YEAR 2005-06. THE PROVISIONS OF SECTION 80IB(10) DEAL WITH THE PROJECT DEVELOPED BY AN ASSE SSEE ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 5 OF 11 AND DO NOT VISUALIZE THE COMBINATION OF PROJECTS ME RELY BECAUSE THE LAND IS ONE AND COMMON PLAN IS GOT SANC TIONED BY LAND OWNERS/PRINCIPAL DEVELOPERS. IF AOS STAND IS TAKEN AS CORRECT IT WOULD RESULT IN AN ABSURD SITUA TION OF EXTENSION OF BENEFIT TO VARIOUS SMALL DEVELOPERS DE VELOPING SMALL PROJECTS ON LAND ADMEASURING LESS THAN ONE AC RE BUT COLLECTIVELY ON A LAND MORE THAN ONE ACRE. THIS CAN NOT BE THE INTENTION OF LEGISLATURE. THE ISSUE REGARDING DEDUCTION UNDER SECTION 80 IB(10) AND CONSEQUENTIAL REOPENING CAME UP BEFORE HON'BLE BOMBAY HIGH COURT IN CASE OF GIRILAL & CO. VS. S.L. MEENA, ITO 300 ITR 432. THE REASON FOR REOPENING THE ASSES SMENT WAS THAT ALTHOUGH THE TOTAL AREA OF LAND WAS MORE T HAN ONE ACRE, A PART THEREOF WAS ALREADY DEVELOPED BY ASSESSEE IN 1965-66. THE CLAIM WAS ORIGINALLY ALLOW ED BY AO. HOWEVER, THE DEDUCTION WAS SOUGHT TO BE WITHDRA WN SINCE AREA UNDER DEVELOPMENT OF PROJECT NOW CLAIMED AS COVERED UNDER SECTION 80IB(10) WAS LESS THAN ONE AC RE (I.E. AFTER EXCLUDING AREA ON WHICH BUILDING WAS ALREADY CONSTRUCTED). THE REOPENING WAS CHALLENGED BY ASSES SEE BY WAY OF WRIT. THE HON'BLE HIGH COURT DISMISSED TH E WRIT PETITION. THE REASONING GIVEN BY HON'BLE COURT IS T HAT IT NEEDS TO BE EXAMINED WHETHER PART OF LAND ALREADY DEVELOPED BY ASSESSEE WOULD BE PART OF NEW PROJECT OR IT HAS TO BE EXCLUDED. THE VIEW EMERGING FROM THIS DE CISION APPEARS TO BE THAT FOR PURPOSE OF CLAIMING DEDUCTIO N UNDER SECTION 80IB(10), ACTUAL AREA UNDER DEVELOPMENT IS MATERIAL. THIS VIEW ALSO GETS SUPPORT FROM BOARD CI RCULAR NO.5/2005 DATED 15/07/2005. THE CLARIFICATION GIVEN REGARDING PROVISIONS OF SECTION 80IB(10) AS PER CIR CULAR ALSO EMPHASIZES UPON THE FACT THAT AREA LIMIT OF PL OT HAS TO BE CONSTRUED WITH REFERENCE TO THE AREA OF SITE ON WHICH THE HOUSING PROJECT IS CONSTRUCTED. AO HAS REFERRED TO JUDGMENT OF HON'BLE MADRA S HIGH COURT IN CASE OF SHESHASAYEE PAPER & BOARDS LTD VS. DCIT 272 ITR 165 REGARDING INTERPRETATION OF STATUES. TH E HON'BLE HIGH COURT HAS LAID DOWN THAT WHERE THERE I S NO AMBIGUITY IN PROVISIONS OF STATUE, IT IS NOT POSSIB LE TO APPLY ANY CONSIDERATION BASED ON THE PROVISION BEING SO A PPLIED AS TO BE MORE ADVANTAGEOUS TO ASSESSEE OR GIVE TO ASSESSEE A KIND OF CHOICE IN THE MATTER OF ADJUSTME NT. THIS LEGAL SITUATION IS NOT DISPUTED BUT IT APPLIES IN A CASE WHERE THERE IS NO AMBIGUITY IN LAW. ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 6 OF 11 AO HAS ALSO REFERRED TO SUPREME COURT JUDGMEN T IN CASE OF FEDERATION OF ANDHRA PRADESH CHAMBERS OF COMMERCE & INDUSTRY & ORS. ETC. VS. STATE OF ANDHRA PRADESH & ORS (SEE PARA 14 OF ORDER) 247 ITR 36 REG ARDING THE PROPOSITION THAT THERE IS NO ROOM FOR ANY INTEN DMENT AND THERE IS NO EQUITY ABOUT A TAX. ONE CAN LOOK FA IRLY AT THE LANGUAGE USED. IN THAT CASE, ISSUE WAS REGARDIN G LEVY OF NON AGRICULTURAL TAX ON LAND USED FOR INDUSTRIAL PURPOSE. THE HIGH COURT INTERPRETED THE PROVISIONS TO INCLUD E PART OF NON AGRICULTURAL LAND MEANT TO BE USED FOR INDUST RIAL PURPOSE. IT WAS AGAINST THE INTERPRETATION OF TERM USED BY HIGH COURT THAT HON'BLE SUPREME COURT CAME DOWN HEA VILY UPON JUDGMENT AND REVERSED THE SAME IT WAS HELD AS UNDER: WE ARE IN NO DOUBT WHATEVER, THEREFORE, THAT IT IS ONLY LAND WHICH IS ACTUALLY IN USE FOR AN INDUSTRIA L PURPOSE AS DEFINED IN THE SAID ACT THAT CAN BE ASSESSED TO NON AGRICULTURAL ASSESSMENT AT THE RATE SPECIFIED FOR LAND USED FOR INDUSTRIAL PURPOSES. TH E WIDER MEANING GIVEN TO THE WORD USED IN THE JUDGMENT UNDER CHALLENGE IS UNTENABLE. HAVING REGARD TO THE FACT THAT THE SAID ACT IS A TAXING STATUTE, NO COURT IS JUSTIFIED IN IMPUTING TO THE LEGISLATURE AN INTENTION THAT IT HAS NOT CLEARLY EXPRESSED IN THE LANGUAGE IT HAS EMPLOYED. ONE WOULD ALSO HAVE TO CONSIDER OTHER SUPREME C OURT JUDGMENTS REGARDING INTERPRETATION. THE SUPREME COURT IN THE CASE OF CIT VS. SO UTH ARCOT DISTRICT COOPERATIVE MARKETING SOCIETY LTD, 176 ITR 117 DEALT WITH THE CONCEPT OF LIBERAL CONSTRUCTION FOR GRANTING DEDUCTION UNDER SECTION 80P OF THE ACT. IT HELD THA T A LIBERAL INTERPRETATION SHOULD BE GIVEN TO THE LANGUAGE OF T HE PROVISION WHILE DEALING WITH THE EXEMPTION PROVISIO NS. IT IS STATED THAT HAVING REGARD TO THE OBJECT WITH WHICH THE PROVISION HAS BEEN ENACTED, IT IS APPARENT THAT A L IBERAL CONSTRUCTION SHOULD BE GIVEN TO THE LANGUAGE OF THE PROVISION. AS IN THE PRESENT CASE, THERE IS NO COND ITION AS REGARDS TO OWNERSHIP IN THE PROVISIONS OF SECTION 8 0IB(10) OF THE ACT. I FEEL THAT TAKING A LIBERAL CONSTRUCTI ON OF THE PROVISION, ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE SUPREME COURT IN THE CASE OF CIT VS. U.P COOPERATIVE FEDERATION LTD (1989) 76 CTR (SC) 22: ( 1989) ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 7 OF 11 176 ITR 435 (SC) ALSO ADOPTED A LIBERAL APPROACH IN GRANTING A DEDUCTION. THE SUPREME COURT IN THE CASE OF CIT VS. J.H. GOTLA 156 ITR 323 HAS ALSO VERY CATEGORICALLY STATED THE BENE FICIAL INTERPRETATION IN FAVOUR OF ASSESSEE SHOULD BE ADOP TED. IN THE PRESENT CASE, THERE IS NO CONDITION AS REGARDS TO OWNERSHIP AND IF WE INTERPRET STRICTLY THE PROVISIO N, THEN ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80 IB(10) OF THE ACT. THE AMBIGUITY IN THE PROVISIONS RELATED TO SECT ION 80IB(10) IS CLEARLY EVIDENT FROM MUSHROOMING DISPUT ES ON VARIOUS INTERPRETATION BEING ADOPTED BY AOS ACROSS THE COUNTRY AND THE DECISIONS BEING RENDERED BY APPELLA TE AUTHORITIES. ONE OF THE RECENT DECISIONS OF SPECIAL BENCH IS CASE OF BRAHMA BUILDERS (SUPRA) WHEREIN PROVISIONS OF SECTION 80IB(10) ARE DISCUSSED IN DEPTH. THE MOST IMPORTANT RULE OF INTERPRETATION IS THAT UNDER NO CIRCUMSTANCES THE LAW CAN BE INTERPRETED IN SUCH A WAY TO DEFEAT THE VERY PURPOSE OF ENACTMENT. EVEN IF ONE LOOKS AT LANGUAGE OF THE SECTION 80IB(10), IT SPEAKS ABOUT THE PROJECT VIS--VIS THE UNDERTAKING THAT IS DEVELOPING IT. IT CAN BY NO MEANS BE STRETCHED TO I NCLUDE OTHER PROJECTS BEING DEVELOPED BY OTHER UNDERTAKING S MAY BE ON THE SAME LAND. THE FACT THAT APPELLANTS PROJ ECT IS DISTINCT IS CLEARLY PROVED FROM DEVELOPMENT AGREEME NT DATED 23/7/2003, SECOND SCHEDULE THEREIN AND THE ANNEXED PLAN THERETO PLACED AT PAGE 47 OF THE PAPER BOOK. AO HAS ALSO REFERRED TO JUDGMENT OF MUMBAI IT AT IN CASE OF SAROJ SALES ORGANIZATION 9115 TTJ 485) REGA RDING DEVELOPMENT OF DIFFERENT PROJECTS ON SAME PIECE OF LAND. THIS DECISION IS IN FAVOUR OF ASSESSEE. BUT ACCORDI NG TO AO, IT WOULD NOT APPLY TO APPELLANTS CASE FOR THE REAS ON THAT IN THAT CASE, ASSESSEE HAD OBTAINED DIFFERENT COMMENCE MENT CERTIFICATE/APPROVALS FOR EACH WING OF THE PROJECT. THE A.R. OF THE APPELLANT HAVE ARGUED THAT THIS DECISION IN FACT SUPPORTS APPELLANTS CASE AS DISCUSSED IN DETAIL IN WRITTEN SUBMISSION DATED 2/4/09. IF AOS INTERPRETATION REG ARDING NATURE OF PLANS PUT UP (JOINT OR SEPARATE) IS APPLI ED TO SAROJ SALES ORGANIZATION, IT WOULD MEAN THAT IN THA T CASE THERE WERE NINE DIFFERENT PROJECTS (SIX WINGS IN PR OJECT NISARG, THREE WINGS IN BREEZY CORNER) AS ASSESSEE H AD OBTAINED DISTINCT APPROVALS FOR EACH OF THE WING/BU ILDING THEREIN. THIS SURELY IS NOT THE INTERPRETATION OF T HE ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 8 OF 11 JUDGMENT. THE GIST OF THIS DECISION IS THAT WHEN AN ASSESSEE DEVELOPS TWO PARTS OF SAME LAND IN DIFFERE NT CONTEXT AND IS ABLE TO PROVE THEIR INDEPENDENT IDEN TITY BY SPACE (GEOGRAPHY) DOCUMENTS (LIKE COMMENCEMENT CERTIFICATE/COMPLETION CERTIFICATE), BOOKS OF ACCOU NT ETC. THEN AO CANNOT CLUB THE TWO DISTINCT PROJECTS AND TREAT THE SAME AS ONE PROJECT TO DENY THE BENEFICIAL PROVISIONS AP PLICABLE TO ONE OF THE PROJECTS. APPELLANTS CASE IS ON MORE STRONGER GROUNDS SINCE THEIRS IS A CASE OF DISTINCT/INDEPEND ENT DEVELOPERS DEVELOPING THE SAME LAND AS AGAINST THE CASE OF SAROJ SALES ORGANIZATION BEFORE HON'BLE ITAT WHERE SAME DEVELOPER WAS DEVELOPING TWO DIFFERENT PARTS OF THE SAME LAND. IN APPELLANTS CASE ALSO, AMENITIES PROVIDED TO BUYERS ARE DISTINCT/INDEPENDENT OF OTHER TWO PROJECTS. APP ELLANT HAS ALSO OBTAINED DIFFERENT/SEPARATE COMPLETION CER TIFICATE IN REGARD TO ITS OWN PART OF TOTAL MASTER PLAN. TH E APPELLANT CANNOT BE PUNISHED FOR DELAY OCCURRED IN COMPLETION OF PROJECTS OF OTHER DEVELOPERS. EVEN THE DECISION OF LAUKIK DEVELOPERS CITED B Y AO IN HIS ORDER HAS NOT BEEN APPROVED BY SPECIAL BENCH IN CASE OF BRAHMA BUILDERS (SUPRA). FOR THE ABOVE REASONS, I AM INCLINED TO AGRE E WITH THE APPELLANTS SUBMISSION THAT THE COMPLIANCE OF CONDI TIONS LAID DOWN UNDER SECTION 80IB(10) ARE TO BE EXAMINED VIS-- VIS PROJECT BEING DEVELOPED BY ASSESSEE DEVELOPER. ONCE APPELLANTS PROJECT SHIV AMRUT DHAM IS SEPARATED FR OM OTHER TWO PROJECTS OF OTHER DEVELOPERS THE CONDITIO NS LAID DOWN UNDER SECTION 80IB(10) STAND COMPLIED WITH. EV EN AS PER AO THERE IS NO OTHER VIOLATION IN THE SAID PROJ ECT TO DENY THE BENEFIT TO THE APPELLANT. THE ISSUE REGARDING T OTAL COMMERCIAL AREA HAS ALSO EMERGED ONLY BECAUSE AO HA S TREATED THE THREE PROJECTS BEING DEVELOPED ON LAND BEARING S.NO.22/23 AS ONE. I THEREFORE, HOLD THAT SHIV AMRU T DHAM PROJECT IS DISTINCT FROM OTHER PROJECTS. THE CONDIT IONS LAID DOWN FOR CLAIMING DEDUCTION ARE DULY FULFILLED AS T HE PROJECT IS DEVELOPED ON LAND ADMEASURING MORE THAN ONE ACRE , HAVING RESIDENTIAL UNITS EACH ADMEASURING LESS THAN 1500 SQ.FT.TOTAL AREA OF COMMERCIAL UNITS AT LESS THAN 2 000 SQ. FT AND COMPLETED BEFORE 31/03/2008 AS PER COMPLETION CERTIFICATE FILED BY APPELLANT. AO IS DIRECTED TO A LLOW DEDUCTION OF ` .76,43,410 TO APPELLANT IN RESPECT OF PROFIT DERIVED BY IT FROM DEVELOPMENT OF HOUSING COMPLEX U NDER THE NAME AND STYLE OF SHIR AMRUT DHAM. ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 9 OF 11 IN FACT ALL THE ASPECTS RELATED TO PROJECT OF APPEL LANT WERE DULY EXAMINED BY AO WHILE COMPLETING ASSESSMENT FOR ASSESSMENT YEAR 2005-06 WHERE DEDUCTION CLAIMED UND ER SECTION 80IB(10) IN RESPECT OF SAME PROJECT HAS BEE N ALLOWED. THERE IS NO MATERIAL CHANGE IN FACTS FOR B OTH THE YEARS. APPELLANT IN THE ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEAR 2006-07 HAS FURNISHED THE COMPLETIO N CERTIFICATE IN RESPECT OF BUILDING NO.1 TO 4 OBTAIN ED ON 31/3/2002 WHICH IT COULD NOT FURNISH DURING ASSESSM ENT FOR ASSESSMENT YEAR 2005-06 COMPLETED IN DECEMBER, 2007. IN THE RESULT, THE APPEAL IS ALLOWED. 7. THE LEARNED DR RELIED ON THE CONTENTIONS OF AO WHER EAS THE LEARNED COUNSEL SUPPORTING THE ORDERS OF THE CIT (A ) REFERRED TO THE PLANS PLACED ON RECORD ALONG WITH THE APPROVAL FOR VARIOUS OTHER BUILDERS WHO HAS UNDERTAKEN DIFFERENT PROJECTS. IT WAS FURTHER SUBMITTED THAT THE ITAT F BENCH MUMBAI IN THE CAS E OF VIDHI BUILDERS, WHICH IS ANOTHER DEVELOPER IN THE SAME AP PROVED PROJECT OF 14 BUILDING WAS ALLOWED SECTION 80IB AND PLACED ORDERS FOR ASSESSMENT YEAR 2007-08 IN ITA NO.2544/MUM/2011, AS SESSMENT YEAR 2006-07 IN ITA NO.1449/MUM/2010 AND FOR ASSESS MENT YEAR 2005-06 IN ITA NO.1212/MUM/2009 ON RECORD. 8. WE HAVE CONSIDERED THE ISSUE. AS BRIEFLY STATED ASS ESSEE HUF UNDERTOOK TO DEVELOP BUILDING NO.1 TO 6 KNOWN AS SH IV AMRUT DHAM ON A PLOT ADMEASURING 5318.46 SQ. METERS EQUIV ALENT TO 1.33 ACRES. IT HAS OBTAINED AMENDED PLAN AS APPROVED BY THE KMDC VIDE APPROVAL DATED 29.09.2004. AS POINTED OUT BY THE LE ARNED COUNSEL, COMMERCIAL AREA IN THIS BUILDING UNDERTAKEN BY ASSE SSEE IS LESS THAN THE RESTRICTIONS PLACED UNDER SECTION 80IB. TH EREFORE, THERE IS NO DISPUTE ON THE ISSUE OF COMMERCIAL AREA IN ASS ESSEE PROJECT. IT WAS SUBMITTED THAT AO CONSIDERED ENTIRE COMMERCIAL AREA OF 14 BUILDING WHICH WAS BEING DEVELOPED BY OTHER DEVELOP ERS AND IN THE ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 10 OF 11 SIX BUILDINGS BEING DEVELOPED BY ASSESSEE AS A PROJ ECT, THERE IS NO ISSUE OF COMMERCIAL ARE BEING EXCESS OF LIMITS PRES CRIBED OF 2000 SQ. FT. AND THIS FACT WAS ALSO ACCEPTED BY AO AND THE C IT (A). THE ONLY ISSUE FOR SURVIVAL IS WHETHER AOS CONTENTION THAT THE PROJECT WAS INCOMPLETE ON OR BEFORE 31/03/2008 AS ASSESSEE WAS GOT APPROVAL FOR THE WHOLE OF 14 BUILDING. THIS ISSUE WAS DECIDE D BY THE COORDINATE BENCH OF THE ITAT IN THE CASE OF VIDHI D EVELOPERS, ANOTHER ASSESSEE HAVING PROJECT NAMED AMRUT DHAM CO MPRISING BUILDING NO.9 & 10 AND VIDHI COMPLEX COMPRISING BUI LDING NO.11 TO 14. THE SAID VIDHI BUILDERS DID NOT CLAIM DEDUCT ION UNDER SECTION 80IB(10) ON AMRUT DHAM WHEREAS THE DEDUCTIO N WAS CLAIMED ON VIDHI COMPLEX. IN THAT CASE AO DENIED DE DUCTION ON THREE COUNTS (I) THAT THE PLOT AREA WAS LESS THAN 1 ACRE, (II) THE PROJECT AREA COMPRISES OF COMMERCIAL AREA EXCEEDING 2000 SQ. METERS AND THE PROJECT FAILED TO COMPLETE AS ON 31/ 03/2008. THE FIRST TWO ISSUES ARE NOT RAISED IN ASSESSEES CASE, WHEREAS ON THE THIRD REASON THE ITAT HELD: 8. AS FAR AS COMPLETION OF THE CONSTRUCTION IS CON CERNED, THE CERTIFICATE OF KDMC DATED 31/3/2008 IS CLEAR TH AT BUILDING NO.9 TO 14 WERE COMPLETED AND OCCUPATION CERTIFICATE WAS GIVEN. AOS STAND THAT PROJECT WAS ONLY PARTLY COMPLETED CANNOT THEREFORE, BE SUSTAINED. TH E DEDUCTION UNDER SECTION 80IB(10) WAS CLAIMED ONLY I N RESPECT OF THE PROJECT VIDHI COMPLEX WHICH COMPRISE OF BUILDING NO.11 TO 14. AS FAR AS THIS PROJECT IS CON CERNED, THERE COULD BE NO DOUBT THAT THE CONSTRUCTION WAS COMPLETED ON 31/3/2008. 9. SINCE ASSESSEE WAS INVOLVED IN CONSTRUCTION OF ONLY BUILDINGS 1 TO 6 FOR WHICH SEPARATE APPROVAL WAS OBTAINED AND ALSO OCCUPANCY CERTIFICATE WAS OBTAINED WHICH INDICATE THAT THE PR OJECT WAS SEPARATE AND WAS COMPLETED WITHIN THE TIME LIMIT PR ESCRIBED UNDER SECTION 80IB(10), WE DO NOT SEE ANY REASON TO INTER FERE WITH THE ITA NO.4743 OF 2009 SURESH L. WADHWA (HUF) MUMBAI PAGE 11 OF 11 ORDER OF THE CIT (A). ACCORDINGLY THE GROUNDS RAIS ED BY THE REVENUE ARE DISMISSED. 10. IN THE RESULT APPEAL FILED BY THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DECEMBER, 2012. SD/- SD/- (D.K.AGARWAL) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 31 ST DECEMBER, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, I BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI