M/s. Surana Mutha Developers, Pune V. Income-tax Officer,

ITA 475/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9083 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-12-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 18-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MUKESH JHA
• Assessee Lawyers: DR V L JAIN
• Section: 143(3); 80IB; 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO. 475 /P U N/20 1 6 / ASSESSMENT YEAR : 20 11 - 12 M/S. SURANA MUTHA DEVELOPERS, 236, PATIL PLAZA, PARVATI, PUNE . / APPELLANT PAN: A BAFS9964J VS. THE INCOME TAX OFFICER, WARD 11(4), PUNE . / RESPONDENT / APPELLANT BY : DR. V.L. JAIN / RESPONDENT BY : S HRI MUKESH JHA / DATE OF HEARING : 14 . 12 .2017 / DATE OF PRONOUNCEMENT: 12 . 0 3 .201 8 / ORDER PER SUSHMA CHOWLA, JM: THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A) - 4 , PUNE , DATED 1 0 .1 1 .201 5 RELATING TO ASSESSMENT YEAR 20 11 - 12 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUND OF APPEAL: - 1. THE LEARNED ASSESSING CIT(A) ERRED IN LAW AND ON FACTS IN CONSISTING THE DISALLOWANCE U/S 80IB OF RS.3,37,02,152/ - ON THE GROUND THAT COMPLETION CERTIFICATE OF BUILDING D WAS NOT OBTAINED BY 31.03.2011. 2 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS 3. THE APPEAL OF ASSESSEE WAS FILED AFTER DELAY OF 28 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE REASON FOR AFORESAID DELAY. WE FIND MERIT IN THE PL EA OF ASSESSEE IN THIS REGARD AND CONSEQUENTLY, THE DELAY IN FILING THE APPEAL LATE IS CONDONED. WE PROCEED TO DECIDE THE APPEAL AFTER HEARING BOTH THE LEARNED AUTHORIZED REPRESENTATIVES. 4. THE ONLY ISSUE RAISED IN THE PRESENT APPEAL BY THE ASSESSEE IS AGAINST DISALLOWANCE OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AT 3,37,02,152/ - ON THE GROUND THAT COMPLETION CERTIFICATE OF BUILDING D WAS NOT OBTAINED BY 31.03.2011. 5. DR. V.L. JAIN APPEARED ON BEHALF OF ASSESSEE AND SHRI MUKESH JHA APPEARED O N BEHALF OF REVENUE AND PUT FORWARD THEIR CONTENTIONS. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSESSEE HAD FURNISHED RETURN OF INCOME DECLARING TOTAL INCOME OF 2,19,238/ - . THE ASSESSEE FI RM WAS ENGAGED IN THE BUSINESS ACTIVITY OF PROPERTY DEVELOP ER AND BUILD ER . THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AT 3,37,02,152/ - . DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAD UND ERTAKEN ONE RESIDENTIAL PROJECT I.E. DAFFODILS AVENUE AT BAVDHAN KURD, PUNE. THE COMMENCEMENT CERTIFICATE FOR THE SAID PROJECT WAS ISSUED ON 31.10.2005. AS PER INITIAL SANCTIONED PLAN DATED 31.10.2005, PROJECT CONSIST ED OF RESIDENTIAL BUILDINGS A, B AND C'. THE ASSESSEE HOWEVER, CARRIED OUT CERTAIN CHANGES IN THE LAYOUT PLAN AND REVISED THE BUILDING PLANS AND LAYOUT PLAN , AS PER COMMENCEMENT CERTIFICATE DATED 29.03.2007 AND 11.12.2009. THE REVISED LAYOUT 3 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS INCLUDED ONE MORE BUILDING D IN THE PROJECT. THE TOTAL AREA OF PLOT WAS 5600 SQ.MTRS., WHICH WORKED OUT TO 1.38 ACRES. THE ISSUE OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FOR THE FIRST TIME AROSE IN THE HANDS OF ASSESSEE IN ASSESSMENT YEAR 2009 - 10 . THE FIRST GROUND ON WHICH IT WAS DENIED TO THE ASSESSEE WAS THAT AFTER EXCLUDING CERTAIN AREAS BECAUSE OF CERTAIN CHANGES, THE REDUCED AREA AVAILABLE TO THE ASSESSEE WAS LESS THAN ONE ACRE AND AS SUCH, CONDITION ENVISAGED IN CLAUSE (B) OF SECTION 80IB(1 0) OF THE ACT WAS NOT FULFILLED. THE SECOND DISQUALIFICATION OF THE PROJECT WAS THAT WHERE THE FIRST COMMENCEMENT CERTIFICATE WAS ISSUED BY THE LOCAL AUTHORITY ON 31.10.2005, THEN THE SAID HOUSING PROJECT HAD TO BE COMPLETED WITHIN FIVE YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE FIRST COMMENCEMENT CERTIFICATE WAS OBTAINED I.E. ON OR BEFORE 31.03.2011. THE ASSESSING OFFICER IN ASSESSMENT YEAR 2009 - 10 NOTED THAT THE ASSESSEE DID NOT POSSESS THE COMPLETION CERTIFICATE IN RESPECT OF BUILDING NO.D OF TH E SAID PROJECT AS ON 31.03.2011. THE ASSESSING OFFICER HAD PLACED RELIANCE ON THE DOCUMENTS RECEIVED FROM PMC UNDER SECTION 133(6) OF THE ACT, WHICH INDICATED THAT THE CONSTRUCTION OF BUILDING NO.D HAD COMMENCED AND ONLY PLINTH LEVEL WAS COMPLETED AROUND THE DATE OF CERTIFICATE I.E. 18.03.2011, 21.03.2011 AND 15.03.2011. FURTHER, CONFIRMATION WAS RECEIVED FROM PMC ON 26.12.2011 IN WHICH IT WAS POINTED OUT THAT PART COMPLETION CERTIFICATE FOR BUILDING NOS.A, B AND C OF HOUSING SCHEME WAS GIVEN. HOWEVER, C ONSTRUCTION WORK OF BUILDING NO.D OF SAID PROJECT AS ON 31.03.2011 WAS NOT COMPLETED AND NO COMPLETION CERTIFICATE WAS GIVEN. THE ASSESSING OFFICER HELD THE ASSESSEE NOT ENTITLED FOR CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND THE CIT(A) ALSO UPHELD THE SAME. THE MATTER TRAVELLED TO THE TRIBUNAL AND IN ITA NO.360/PN/2013, RELATING TO ASSESSMENT YEAR 2009 - 10, ORDER DATED 10.04.2015, THE ISSUE WAS CONSIDERED. THE PLEADINGS OF ASSESSEE BEFORE THE TRIBUNAL WERE 4 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS THAT ORIGINAL PLANS WERE SANCTIONE D ON 31.10.2005 COMPRISING OF BUILDING NOS.A, B AND C. THEREAFTER, PLAN FOR BUILDINGS WERE REVISED ON 26.03.2007 AND BUILDING NO.D WAS ADDED FOR THE FIRST TIME. THE COMPLETION CERTIFICATE FOR BUILDING NOS.A, B AND C WERE RECEIVED BY THE ASSESSEE BEFORE 3 1.03.2011. HOWEVER, PLAN FOR BUILDING NO.D WHICH WAS SANCTIONED AS PER COMMENCEMENT CERTIFICATE DATED 29.03.2007 HAD BEEN PHYSICALLY COMPLETED BEFORE 31.03.2011, WHICH IN TURN, IS EVIDENCED BY THE ARCHITECTS CERTIFICATE IN THIS REGARD. THE ASSESSEE ALSO CLAIMED THAT REVENUE ON SALE OF UNITS OF BUILDING NO.D WAS RECOGNIZED IN ASSESSMENT YEAR 2011 - 12, WHICH IN TURN, CONFIRMS THE HANDING OVER OF POSSESSION OF COMPLETED UNITS PRIOR TO 31.03.2011. THE ASSESSEE ALSO PLACED ON RECORD ELECTRICITY BILLS IN RESPE CT OF FLATS IN BUILDING NO.D HAD BEEN RAISED IN THE NAMES OF FLAT OWNERS PRIOR TO 31.03.2011. THE FINAL COMPLETION CERTIFICATE FOR BUILDING NO.D WAS ISSUED ON 15.03.2012 BY THE LOCAL AUTHORITY. WHILE ARGUING THE SAID APPEAL, THE LEARNED AUTHORIZED REPRES ENTATIVE FOR THE ASSESSEE POINTED OUT THAT SINCE THE PLAN FOR BUILDING NO.D HAD BEEN SANCTION ON 29.03.2007, THE EXPECTED DATE OF COMPLETION OF SAID BUILDING UNDER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT WAS 31.03.2012. THE ASSESSEE THUS, PLEADED TH AT BUILDING NOS.A, B AND C WERE COMPLETED WITHIN STIPULATED TIME AND HENCE, THERE WAS NO MERIT IN DISALLOWANCE OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 7. ANOTHER ASPECT WHICH WAS RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT THERE WAS NO REQUIREMENT OF COMPLETION CERTIFICATE FOR CLAIMING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. ANOTHER PLEA WHICH WAS RAISED WAS THAT BUIL DING NOS.A TO D WERE NOT ONE PROJECT AS BUILDING NO.D WAS NOT PART OF COMMENCEMENT CERTIFICATE SANCTIONING CONSTRUCTION OF BUILDING NOS.A, B AND C. THE PLEADINGS OF LEARNED AUTHORIZED 5 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS REPRESENTATIVE FOR THE ASSESSEE ARE REPRODUCED IN PARA 7 OF THE SAID OR DER DATED 10.04.2015. 8. THE CASE OF REVENUE ON THE OTHER HAND IN APPEAL RELATING TO ASSESSMENT YEAR 2009 - 10 WAS THAT BUILDING NO.D WAS NOT COMPLETED BY 31.03.2011, WHICH WAS CLEAR FROM THE LETTER PLACED AT PAGE 65 OF PAPER BOOK. THE LEARNED DEPARTMENT AL REPRESENTATIVE FOR THE REVENUE STRESSED THAT BUILDING NO.D WAS COMPLETED TO THE PLINTH LEVEL ONLY ON THAT DATE AND HE ALSO QUESTIONED THAT HOW THE ARCHITECT COULD CERTIFY THAT THE BUILDING WAS COMPLETED BY 31.03.2011. RELIANCE WAS PLACED ON LETTER OF P MC DATED 26.12.2011, WHICH WAS ISSUED IN RESPONSE TO SUMMONS ISSUED UNDER SECTION 133(6) OF THE ACT, WHICH WERE PLACED AT PAGE 6 OF SAID PAPER BOOK AND ALSO ENGLISH TRANSLATION OF SAID LETTER UNDER PARA 8.4 OF THE ASSESSMENT ORDER IN WHICH PMC CLEARLY CERT IFIED THAT THE BUILDING NO.D WAS NOT COMPLETE. 9. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE IN REJOINDER AS AN ALTERNATE PLEA REQUESTED THAT PRORATA CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF BUILDING NOS.A TO C SHOULD BE ALLOWED TO THE ASSESSEE IN ASSESSMENT YEAR 2009 - 10 . THE CASE OF ASSESSEE THEN WAS THAT BUILDING NO.D WAS BROUGHT IN THE YEAR 2007 VIDE REVISED PLAN AND THE SAME WAS SEPARATE PROJECT ON WHICH DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WAS ALLOWABLE. THE SAID PLEADINGS OF LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AND REJOINDER OF LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ARE IN PARAS 8 AND 9 OF THE SAID ORDER. 6 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS 10. THE TRIBUNAL THEREAFTER, DECIDED THE FIRST ISSUE AS TO WHETHER THE TOTAL AREA OF PLOT WAS ONE ACRE OR NOT AND THE ISSUE WAS DECIDED IN FAVOUR OF ASSESSEE. THEN THE SECOND ISSUE WAS TAKEN UP VIDE PARA 11 AS TO THE COMPLETION OF PROJECT, WHEREIN BUILDING NO.D WAS CLAIMED BY THE ASSESSEE TO BE COMPLETE BEFORE 31.03.2011. T HE TRIBUNAL ALSO NOTED THAT SALE OF UNITS OF BUILDING NO.D AS PER THE ASSESSEE WAS RECOGNIZED IN FINANCIAL YEAR 2010 - 11, WHICH IN TURN, CONFIRMS THE HANDING OVER OF POSSESSION OF SAID UNITS PRIOR TO 31.03.2011. THEREAFTER, REFERENCE WAS MADE TO INFORMATIO N RECEIVED FROM PMC BY THE ASSESSING OFFICER. THE TRIBUNAL VIDE PARAS 12 AND 13 OBSERVED AS UNDER: - 12. THE FIRST PLEA RAISED BY THE ASSESSEE IN THIS REGARD WAS THAT BUILDING NOS. A, B AND C CONSTITUTE ONE PROJECT AND BUILDING NO.D COMPRISED ANOTHER PROJ ECT AND THE COMPLETION DATE OF BOTH THE PROJECTS WERE DIFFERENT AS THE DATE OF COMMENCEMENT OF BOTH THE PROJECTS WERE DIFFERENT. AS PER THE ASSESSEE, BUILDING PLANS FOR BUILDING NOS.A, B AND C WERE ISSUED BY THE LOCAL AUTHORITY ON 31.10.2005 AND THE ASSES SEE WAS TO COMPLETE THE SAID BUILDING BY 31.03.2011, WHICH HAD BEEN COMPLETED AND HENCE, THE ASSESSEE WAS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. FURTHER, THE BUILDING NO.D WAS FIRST SANCTIONED VIDE COMMENCEMENT CERTIFICATE ISSUED ON 29. 03.2007 AS AGAINST WHICH THE EXPECTED DATE OF COMPLETION, AS PER THE PROVISIONS OF THE ACT, WAS 31.03.2012. SINCE THE BUILDING NO.D WAS COMPLETED ON 15.03.2012, THEN THE ASSESSEE WAS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE SAME. RELIANCE IN THIS REGARD WAS PLACED ON THE RATIO LAID DOWN BY PUNE BENCH OF TRIBUNAL IN M/S. SIDDHIVINAYAK KOHINOOR VENTURE VS. ACIT IN ITA NOS.1112 & 1527/PN/2011, RELATING TO ASSESSMENT YEARS 2006 - 07 AND 2007 - 08, VIDE ORDER DATED 31. 10.2013 FOR THE PROPOSITION THAT EVEN A BUILDING OR A GROUP OF BUILDINGS COMPRISED IN LARGER PROJECTS APPROVED BY LOCAL AUTHORITY CAN BE CONSTRUED AS A HOUSING PROJECT FOR THE PURPOSE OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. ANOTHER RELIANCE WAS PL ACED ON THE RATIO LAID DOWN BY HONBLE BOMBAY HIGH COURT IN CIT VS. VANDANA PROPERTIES (SUPRA), WHEREIN, IT WAS HELD THAT THE HOUSING PROJECT NEED NOT BE A PROJECT AND THE GROUP OF BUILDINGS, BUT ONE SINGLE BUILDING CAN CONSTITUTE A SEPARATE HOUSING PROJEC T. ANOTHER RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY HONBLE MADRAS HIGH COURT IN VISWAS PROMOTERS (P) LTD. VS. ACIT REPORTED IN 81 DTR 68 (MADRAS), WHEREIN IT WAS HELD THAT THE ASSESSEE WAS ENTITLED TO THE CLAIM OF DEDUCTION TO THE EXTENT OF EACH OF THE BLOCKS SATISFYING THE CONDITIONS UNDER SECTION 80IB(10) OF THE ACT AND THE ASSESSEE WOULD BE ENTITLED TO THE RELIEF ON PROPORTIONATE BASIS. 13. IN THE ALTERNATE, THE PLEA RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT IT WAS ENTITLED TO THE PRO - RATA DEDUCTION IN RESPECT OF BUILDING NOS.A, B AND C, WHICH WERE COMPLETED BEFORE THE DUE DATE. AFTER GOING THROUGH THE FACTS O F THE CASE, WE FIND THAT THE BUILDING PLANS FOR THE PROJECT COMPRISING OF BUILDING NOS.A, B AND C WERE SANCTIONED ON 31.10.2007. THE ASSESSEE THEREAFTER, HAD CARRIED OUT CERTAIN CHANGES IN THE LAYOUT PLAN AS PER COMMENCEMENT CERTIFICATE DATED 29.03.2007. THE ASSESSING OFFICER VIDE PARA 4 NOTES THAT ANOTHER COMMENCEMENT CERTIFICATE DATED 11.12.2009 WAS ALSO ISSUED TO THE ASSESSEE, AND AS PER THE REVISED PLAN, ANOTHER BUILDING NO.10 WAS 7 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS INCLUDED IN THE PROJECT. THUS, THE ASSESSEE IN ORDER TO DEVELOP ITS PL OT OF LAND WAS ISSUED THREE COMMENCEMENT CERTIFICATES I.E. FIRST ONE DATED 31.10.2005 IN RESPECT OF BUILDING NOS.A, B AND C. THEREAFTER, CERTAIN CHANGES WERE CARRIED OUT AND COMMENCEMENT CERTIFICATE DATED 29.03.2007 AND 11.12.2009 WERE ISSUED TO THE ASSES SEE, AS PER WHICH ONE MORE BUILDING NO.D WAS INCLUDED IN THE PROJECT. UNDER THE PROVISIONS OF SECTION 80IB(10)(A) OF THE ACT, WHERE AN UNDERTAKING HAD COMMENCED OR DEVELOPED AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER 1 ST DAY OF OCTOBER, 1998, THE N THE SAID PROJECT IS TO BE COMPLETED IN A CASE WHERE HOUSING PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY ON OR AFTER 1 ST DAY OF APRIL, 2004, WITHIN FOUR YEARS FROM THE END OF FINANCIAL YEAR, IN WHICH THE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHO RITY. THE EXPLANATION UNDER SECTION 80IB(10)(A) OF THE ACT FURTHER PROVIDES THAT IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS MORE THAN ONCE, THEN SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH THE BUI LDING PLAN OF SUCH HOUSING PROJECT WAS FIRST APPROVED BY THE LOCAL AUTHORITY. IN THE CASE OF ASSESSEE, THE PROJECT WAS APPROVED BY THE LOCAL AUTHORITY ON 31.10.2005 AND IN CASE, THE EXPLANATION UNDER SECTION 80IB(10)(A) OF THE ACT IS TO BE APPLIED, THEN T HE ASSESSEE IS SUPPOSED TO COMPLETE THE SAID HOUSING PROJECT WITHIN FIVE YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE FIRST COMMENCEMENT CERTIFICATE WAS OBTAINED I.E. ON OR BEFORE 31.03.2011. THE ASSESSEE RECEIVED PART COMPLETION CERTIFICATE FOR THE BUILDING NOS.A, B AND C BEFORE THE DUE DATE I.E. 31.03.2011 ... 1 1 . THE FINDING OF TRIBUNAL IN RESPECT OF BUILDING NO.D I.E. DAFFODILS AVENUE WAS AS UNDER: - 13 HOWEVER, AS PER THE INFORMATION COLLECTED BY THE ASSESSING OFFICER IN RESPECT OF THE NEWLY COMMENCED BUILDING NO.D OF DAFFODIL AVENUE, THE CERTIFICATE OF ASSESSEES ARCHITECT SHRI A.N. WATVE, DATED 21.03.2011 AND ADDRESSED TO CITY ENGINEER, PUNE MUNICIPAL CORPORATION CERTIFIED THAT HE HAD VERIFIED THE FOUNDATION STARTA AVAILABLE ON SITE AND FOUND IT TO BE CONCURRENT TO THE DESIGN ASSUMPTIONS . IT WAS FURTHER CERTIFIED THE WORK OF RCC CONSTRUCTION UP TO PLINTH HAS BEEN DONE AS PER MY DRAWING AND DESIGN. ANOTHER CERTIFICATE WAS FROM MR. ZUBER RASHID SHAIKH OF SPACE DESIGNERS SYNDICATE DA TED 15.03.2011, WHO IN RESPECT OF BUILDING NO.D OF DAFFODIL AVENUE STATED THAT THE CONSTRUCTION UPTO PLINTH LEVEL HAD BEEN COMPLETED AT THE ABOVE MENTIONED SITE AS PER THE PERMIT COMMENCEMENT CERTIFICATE DATED 11.12.2009. IT FURTHER STATED THAT THE PLIN TH MAY BE CHECKED AND PERMISSION BE GIVEN TO PROCEED WITH FURTHER WORK. BOTH THESE COMMUNICATIONS WHICH ARE ISSUED IN THE MONTH OF MARCH, 2011 CONFIRM THAT THE BUILDING NO.D WAS STILL IN CONSTRUCTION AND IT WAS NOT COMPLETED TILL 31.03.2011. THE ASSESSIN G OFFICER RECEIVED INFORMATION FROM PMC VIDE LETTER DATED 26.12.2011, WHICH IS ANNEXED AS ANNEXURE E TO THE ASSESSMENT ORDER, IN WHICH IT WAS STATED THAT AS ON 31.03.2011, THE CONSTRUCTION OF THE BUILDING NO.D WAS NOT COMPLETED. THE ENGLISH TRANSLATION OF THE RELEVANT PORTION IS REPRODUCED BY THE ASSESSING OFFICER AT PAGE 7 OF THE ASSESSMENT ORDER. IN VIEW OF THE ABOVE SAID EVIDENCES AVAILABLE WITH THE ASSESSING OFFICER, COPIES OF WHICH ARE ANNEXED AS ANNEXURE B TO E TO THE ASSESSMENT ORDER, WE FIND NO MERIT IN THE PLEA OF THE ASSESSEE THAT THE BUILDING NO.D HAD BEEN COMPLETED MUCH BEFORE 31.03.2011, IN VIEW OF THE ARCHITECTS CERTIFICATE CONFIRMING THE COMPLETION BY 31.03.2011. THE ASSESSEE HAS FURTHER STATED THAT NO DEDUCTION UNDER SECTION 80IB(10) OF THE ACT HAS BEEN CLAIMED IN THE CURRENT YEAR AS INCOME FROM SALE OF UNITS IN BUILDING D HAS BEEN ACCOUNTED FOR IN SUBSEQUENT PERIODS. 8 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS 1 2 . THE TRIBUNAL VIDE PARA 14 HOWEVER, ALLOWED THE CLAIM OF PRORATA DEDUCTION OF ASSESSEE VIS - - VIS BUILDING NOS.A TO C, WHICH WERE CONSTRUCTED AND COMPLETED BY THE ASSESSEE, AGAINST WHICH THE COMPLETION CERTIFICATE HAD BEEN RECEIVED PRIOR TO 31.03.2011. THE TRIBUNAL ALSO HELD THAT MERELY BECAUSE THE ASSESSEE HAD NOT COMPLETED BUILDING NO.D WITHIN PRESCRIBED TIME UNDER THE PROVISIONS OF THE ACT, DEDUCTION UNDER SECTION 80IB(10) OF THE ACT COULD NOT BE DENIED IN ENTIRETY. 1 3 . THE YEAR UNDER APPEAL IS ASSESSMEN T YEAR 2011 - 12 IN WHICH THE ASSESSEE HA D CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF SAID BUILDING NO.D, WHICH WAS THE DISPUTE BEFORE THE TRIBUNAL WHILE ALLOWING THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF B UILDING NOS.A TO D IN ASSESSMENT YEAR 2009 - 10. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT THE TRIBUNAL IN EARLIER APPEAL HAD NOT GIVEN FINDING THAT BUILDING NO.D WAS NOT SEPARATE. THE TRIBUNAL WAS DEALING ONLY WITH PROFITS OF BUILDING NOS.A TO C. HE FURTHER STATED THAT BUILDING NO.D WAS SEPARATE BUILDING AND IF EXPLANATION TO (A) OF SECTION 80IB(10) OF THE ACT IS APPLIED, WHERE PLAN FOR BUILDING D WAS FIRST APPROVED IN MARCH, 2007 WHICH IS UNDISPUTED FACT THAT PERIOD OF FIVE YEARS WOULD END IN MARCH, 2012. THE ASSESSEE HAD COMPLETED THE BUILDING BEFORE MARCH, 2012 AND HENCE, WAS ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE OTHER HAND, POINTED OUT THAT WHEN THE ASSESSEE SAYS THAT BUILDING NO.D WAS AN INDEPENDENT PROJECT, THEN WE HAVE TO LOOK AT THE FSI STATEMENT WHICH IS PLACED AT PAGE 31 OF THE PAPER BOOK AND LAY OUT OF PROJECT WHERE 80% OF THE LAND WAS COVERED. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE POINTED OUT THAT SAME AMENITIES, SAME OPEN SPACE, SAME PARKING, SAME SEWAGE TREATMENT AND SAME WATER SUPPLY WERE PROVIDED IN THE 9 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS SAID REVISED PLAN, W HICH IS PLACED AT PAGE 33 OF THE PAPER BOOK. EVEN FSI STATEMENT WAS INCREASED BECAUSE OF AMENDMENT AND HENCE, THERE IS NO MERIT IN THE CLAIM OF ASSESSEE. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ALSO POINTED OUT THAT THE SAID BUILDING NO.D WAS NOT COMPLETED AS ON 31.03.2011 AND HENCE, NO MERIT IN THE SAID CLAIM. 14. WE HAVE IN THE PARAS HEREINABOVE AT LENGTH REFERRED TO THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2009 - 10. THE FINDING OF TRIBUNAL WAS THAT THE BUILDING NO.D IN DAFFODILS AVENUE WAS STILL UNDER CONSTRUCTION AND WAS NOT COMPLETED TILL 31.03.2011. THE TRIBUNAL HAD RELIED ON INFORMATION RECEIVED FROM THE PMC AND EVEN GONE THROUGH THE CERTIFICATES ISSUED BY THE ARCHITECT OF ASSESSEE, WHEREIN THEY HAD VERIFIE D THE DIVISION STRATA AVAILABLE AT SITE. BUT THE TRIBUNAL IN THE ENTIRETY OF THE EVIDENCES AVAILABLE, DID NOT FIND ANY MERIT IN THE PLEA OF ASSESSEE THAT BUILDING NO.D HAD BEEN COMPLETED MUCH BEFORE 31.03.2011, IN VIEW OF THE ARCHITECTS CERTIFICATE CONFI RMING THE COMPLETION OF BUILDING BY 31.03.2011. THE TRIBUNAL HAD ALSO TAKEN NOTE OF THE FACT THAT THE ASSESSEE CLAIMS THAT IT HAD TRANSFERRED THE FLATS UP TO 31.03.2011, AGAINST WHICH THE POSSESSION CERTIFICATE WAS ALSO GIVEN. IT IS NOT CLEAR HOW THE POS SESSION OF ANY PORTION OF BUILDING COULD BE HANDED OVER BEFORE EVEN THE BUILDING IS CONSTRUCTED. WHETHER IT IS COMPLETED OR NOT LET US NOT GO INTO THE SAME BUT AS PER THE FINDING OF TRIBUNAL BASED ON VARIOUS EVIDENCES AVAILABLE AGAINST THE ASSESSEE AND EV EN LOOKING AT THE ALLEGED ARCHITECTS CERTIFICATE OF COMPLETION OF BUILDING, THE TRIBUNAL HAS HELD THAT IT WAS COMPLETE D ONLY TILL THE PLINTH LEVEL AND WAS STILL IN CONSTRUCTION AND IT WAS NOT COMPLETED TILL 31.03.2011. IN VIEW OF THE FINDING OF TRIBUNAL IN THIS REGARD, WE ARE NOT ADDRESSING THE ISSUE WHETHER BUILDING NO.D IS SEPARATE BUILDING OR NOT. HOWEVER, WE HOLD THAT THE 10 ITA NO. 475 /PUN/20 16 M/S. SURANA MUTHA DEVELOPERS ASSESSEE IS NOT ENTITLED TO CLAIM THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FOR THE YEAR UNDER CONSIDERATION ON BUILDING NO. D AS THE SAME IS UNDER CONSTRUCTION AND ONLY UPTO PLINTH LEVEL COMPLETED . THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS THUS, DISMISSED. 1 5 . IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 1 2 T H DAY OF MARCH , 201 8 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 1 2 T H MARCH , 201 8 . G G C C V V S S R R / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - 4 , PUNE ; 4. THE PR. C IT - 3 , PUNE ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE. / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE