Grandeur Homes Pvt. Ltd., Secunderabad, Hyderabad V. ACIT, Circle-2(2), Hyderabad, Hyderabad

ITA 479/HYD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0086 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 18-04-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 14-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: S RAMA RAO
• Section: 143(3); 80IB; 80IA

Judgement Text

ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER ITA NO.479/HYD/2017 (ASSESSMENT YEAR: 2012-13) GRANDEUR HOMES P LTD SECUNDERABAD PAN: AACCG7612F VS ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 2(2) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI S. RAMA RAO FOR REVENUE : SHRI K.J. RAO, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. THIS IS ASSESSEES APPEAL FOR THE A.Y 2012-13 AGAIN ST THE ORDER OF THE CIT (A)-2 HYDERABAD, DATED 30/12 /2016. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE ORDER OF THE LEARNED CIT (A) IS ERRONEOUS BOTH ON FACTS AND IN LAW. 2. THE LEARNED CIT (A) ERRED IN DECIDING THE APPEAL WITHOUT PROVIDING PROPER OPPORTUNITY. THE LEARNED C IT (A) OUGHT TO HAVE PROVIDED OPPORTUNITY TO THE APPEL LANT TO PRESENT CASE. 3. THE LEARNED CIT (A) ERRED IN CONFIRMING THE ACTI ON OF THE AO IN NOT ALLOWING THE DEDUCTION U/S 80IB(10) O F THE I.T. ACT CLAIMED IN THE RETURN OF INCOME OF RS.30,54,002/-. 4. THE LEARNED CIT (A) OUGHT TO HAVE CONSIDERED THE FACT THAT THE HOUSING PROJECT IN RESPECT OF EMERALD HEIG HTS WAS APPROVED ON 24.3.2007 AND COMPLETION CERTIFICAT E DATE OF HEARING : 18.04.2019 DATE OF PRONOUNCEMENT : 29.05.2019 ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 2 OF 8 FOR BLOCK, A, D AND CLUB HOUSE WAS OBTAINED WITHIN A PERIOD OF 5 YEARS I.E. ON 10.6.2011. 5. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME O F HEARING. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE CO MPANY ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPERS/M ANAGERS, FILED ITS RETURN OF INCOME FOR THE A.Y 2012-13 ON 2 9.9.2012 ADMITTING TOTAL INCOME OF RS.19,14,700/- AFTER CLAI MING DEDUCTION U/S 80IB(10). DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT, THE AO OBSERVED THAT THE ASSESSEE HAS CLAI MED DEDUCTION U/S 80IB(10) OF THE ACT WITH RESPECT TO PROFITS OF RS.30,54,002/- AND RS.4,64,73,118/- DERIVED RESPECTIVELY FROM THE HOUSING PROJECTS SPLENDOUR (GAJULARAMAMARAM) AND EMERALD HE IGHTS (GHANAPUR). THE ASSESSEE WAS ASKED TO PRODUCE THE C OPY OF THE PROJECT LAY OUT AND COMPLETION CERTIFICATES ETC. IN RESPONSE TO THE SAME, THE ASSESSEE FURNISHED THE APPROVAL LETTERS A ND ON PERUSAL OF THE SAME, THE AO OBSERVED THAT THE HOUSING PROJE CT EMERALD HEIGHTS WAS APPROVED BY THE HUDA ON 23.03.2007 AND THE PROJECTS CONSIST OF FOUR BLOCKS VIZ., A, B, C AND D . OBSERVING THAT ALL THE BLOCKS AND CLUB HOUSE ARE PART OF ONE SINGL E PROJECT, THE AO OBSERVED THAT THE OCCUPANCY CERTIFICATE HAS BEEN ISSUED BY THE GRAMA PANCHAYAT ONLY FOR TWO BLOCKS I.E. A & D AS H AVING BEEN COMPLETED ON 5.1.2012 AND THAT FURTHER VERIFICATION BY THE INSPECTOR ALSO REVEALED THAT ONLY A, D BLOCKS AND C LUB HOUSE HAVE BEEN COMPLETED AND THAT THE BLOCK OF B IS UNDE R CONSTRUCTION AND THAT THE CONSTRUCTION OF BLOCK C H AS NOT YET BEEN STARTED. SINCE THE ENTIRE PROJECT WAS NOT COMP LETED, THE AO DISALLOWED THE CLAIM OF DEDUCTION U/S 80IB(10) IN R ESPECT OF EMERALD HEIGHTS. HOWEVER, THE DEDUCTION U/S 80IB( 10) WAS ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 3 OF 8 ALLOWED FOR THE PROJECT SPLENDOUR. AGGRIEVED BY T HE DISALLOWANCE OF DEDUCTION U/S 80IB(10) IN RESPECT OF EMERALD HEI GHTS, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A), WHO CO NFIRMED THE ORDER OF THE AO AND THE ASSESSEE IS IN SECOND APPEA L BEFORE US. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS COMPLETED THE PROJECTS A & D AND A LSO THE CLUB HOUSE AND HAS ACCORDINGLY FILED THE OCCUPANCY CERTI FICATE BEFORE THE AO WHICH IS PLACED AT PAGE NO.51 OF THE PAPER B OOK FILED BEFORE US. HE SUBMITTED THAT THE ENTIRE PROJECT WAS OF 10.02 ACRES AND THE BLOCKS A & D WERE IN AN AREA OF 4.2 ACRES. THUS, HE SUBMITTED THAT THE BLOCKS THEMSELVES ALSO SATISFIED THE CONDITIONS OF DEDUCTION U/S 80IB(10) AND THEREFORE, THE DEDUCT ION SHOULD BE ALLOWED. 4. THE LEARNED DR, HOWEVER, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT IN THE CASE OF MANJEERA PRO JECTS, THE COORDINATE BENCH OF THIS TRIBUNAL (TO WHICH BOTH OF US ARE SIGNATORIES) HAVE CONSIDERED VARIOUS JUDICIAL PRECE DENTS ON THE ISSUE AND HAVE HELD THAT IF THE BLOCKS OF THE HOUSI NG PROJECT WHICH ARE COMPLETED ALSO FULFILS THE CONDITIONS OF 80IB(10), THEN THE ASSESSEE SHALL BE ELIGIBLE FOR DEDUCTION U/S 80 IB(10) IN RESPECT OF SUCH COMPLETED BLOCKS ONLY. FOR THE SAKE OF READ Y REFERENCE, THE RELEVANT PARAGRAPHS OF THE ABOVE ORDER ARE REPR ODUCED HEREUNDER: ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 4 OF 8 24. AS FAR AS THE 4 BLOCKS ARE CONCERNED, ALL THE A BOVE, EXCEPT CONDITION NO.(IV) ARE FULFILLED AND AS FAR AS 3 BLOCKS ARE CO NCERNED, BOTH THE CONDITIONS (IV) AND (V) ARE NOT FULFILLED. IN RESPE CT OF SOME OF THE FLATS, THERE IS A VIOLATION OF CONDITION NO.(III) AS WELL. THERE FORE, IT IS TO BE EXAMINED, IF THE DEDUCTION IS NOT TO BE ALLOWED IN TOTO EVEN IF ONE OF THE ABOVE CONDITION IS NOT FULFILLED. 25. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CI T VS. VANDANA PROPERTIES REPORTED IN (2013) 355 ITR 36 (BOM.) HAS CONSIDERED SIMILAR SITUATION WHEREIN THE ASSESSEE THEREIN HAD OBTAINED APPROVAL TO CONSTRUCT FOUR BUILDINGS ON A PLOT OF LAND ADMEASURING 2.36 A CRES AND INTIMATION OF THE APPROVAL IN RESPECT OF THOSE BUILDINGS WAS GRAN TED DURING THE YEARS 1993-96 AND FOLLOWING THE PERCENTAGE COMPLETION MET HOD, THE ASSESSEE THEREIN HAD OFFERED TO TAX, THE INCOME EARNED FROM CONSTRUCTION OF BUILDINGS A, B, C & D FROM TIME TO TIME AND DEDUCTION U/S 80I B(10) OF THE ACT WAS ALSO CLAIMED AND ALLOWED. SUBSEQUENTLY, THE STATE G OVT. IN THE YEAR 2001, PERMITTED CONVERSION OF THE STATUS OF THE LAND AND THE ASSESSEE BECAME ENTITLED TO CONSTRUCT ADDITIONAL BUILDING 'E' ON TH E PLOT OF LAND AND ACCORDINGLY THE BUILDING PLAN WAS SUBMITTED BY THE ASSESSEE WHICH WAS APPROVED BY THE MUNICIPAL CORPORATION, SUBJECT TO V ARIOUS CONDITIONS SET OUT THEREIN. THEREAFTER, THE COMMENCEMENT CERTIFICA TE FOR CONSTRUCTION OF 'E' BUILDING WAS ISSUED ON MARCH 10,2003 AND IN THE RETURN OF INCOME FOR THE A.YS 2004-05 AND 2005-06, THE ASSESSEE ESTIMATE D THE PROFIT FROM E BUILDING AND CLAIMED DEDUCTION U/S 80IB(10) OF THE ACT. THE AO DISALLOWED THE CLAIM ON THE GROUND THAT THE APPROVAL FOR 'E' B UILDING WAS GRANTED ON 11TH OF OCTOBER, 2002, AS AN EXTENSION OF THE APPRO VAL GRANTED FOR THE BUILDINGS IN A TO D AND THEREFORE, THE E BLOCK, BEI NG CONTINUATION OF A, B, C & D BUILDINGS, THE PROJECT MUST BE HELD TO HAVE COM MENCED PRIOR TO OCTOBER 1, 1998, AND HENCE IS NOT ELIGIBLE FOR DEDU CTION U/S 80IB(10) OF THE ACT. THE AO ALSO HELD THAT THE BUILDINGS WERE CONST RUCTED IN A PLOT OF LAND ADMEASURING 2.36 ACRES OF THE LAND AND IF IT WAS PR OPORTIONATELY DIVIDED BETWEEN ALL THE BUILDINGS, THEN THE LAND PERTAINING TO E BUILDING WOULD BE LESS THAN ONE ACRE AND HENCE, DEDUCTION U/S 80IB(10 ) COULD NOT BE ALLOWED. THE HON'BLE BOMBAY HIGH COURT HELD THAT THE BUILDIN G E WAS APPROVED BY THE LOCAL AUTHORITY ON OCTOBER 11, 2002 BY A SEPARA TE APPROVAL AND THEREFORE, IT CONSTITUTED AN INDEPENDENT HOUSING PR OJECT AND THAT SECTION 80IB(10) WHILE SPECIFYING THE SIZE OF THE PLOT OF L AND, DOES NOT SPECIFY THE SIZE OR THE NUMBER OF HOUSING PROJECTS THAT ARE REQ UIRED TO BE UNDERTAKEN ON A PLOT HAVING A MINIMUM AREA OF ONE ACRE. THUS, THE HON'BLE HIGH COURT HAS HELD THAT IF THE ASSESSEE HAS CONSTRUCTED A BUI LDING ON MINIMUM OF ONE ACRE, AS PER THE SANCTIONED PLAN AND OBTAINED THE C OMPLETION CERTIFICATE, THE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10). 26. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CI T VS. VOORA PROPERTY DEVELOPERS (P) LTD REPORTED IN (2015) 373 ITR 317 ( MAD) WAS CONSIDERING THE CASE OF AN ASSESSEE, WHO RECEIVED APPROVAL OF T HE LOCAL AUTHORITY IN RESPECT OF A COMPOSITE HOUSING SCHEME AND HAD OBTAI NED SEPARATE PLAN PERMITS FOR SIX BLOCKS ON ONE ACRE AND 6.5 CENTS OF LAND. THE AO THEREIN HAD DENIED THE DEDUCTION U/S 80IB(10) ON THE GROUND THA T THE ASSESSEE HAD DEVELOPED SIX SEPARATE PROJECTS IN ONE SINGLE PIECE OF LAND MEASURING 1.065 ACRES AND THEREFORE, THE ASSESSEE DID NOT FULFIL TH E ESSENTIAL CONDITIONS OF THE MINIMUM AREA OF ONE ACRE FOR A SINGLE PROJECT AS LA ID DOWN U/S 80IB(10). ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 5 OF 8 THE HON'BLE HIGH COURT HELD THAT IF THE CONDITIONS SPECIFIED U/S 80IB ARE SATISFIED, THEN THE DEDUCTION IS ALLOWABLE ON THE E NTIRE PROJECT AND SINCE THE ASSESSEE CONSTRUCTED SIX BLOCKS IN A LAND MEASURING 1 ACRE AND 6.5 CENTS, THE ASSESSEE WAS ENTITLED TO DEDUCTION. 27. THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CA SE OF M/S. SRIRAM CONSTRUCTIONS VS. DY.CIT IN ITA NO.1300/HYD/2011 VI DE ORDERS DATED29.04.2016 HAS ALSO CONSIDERED SIMILAR SITUATI ON AND HAS HELD THAT THE ASSESSEE WILL NOT AUTOMATICALLY LOOSE THE DEDUCTION U/S 80IB(10) FOR THE ENTIRE PROJECT BUT IS ELIGIBLE FOR PRO-RATA DEDUCTI ON AS ALLOWED BY THE CIT (A) IN THE SAID CASE. 28. THE COORDINATE BENCH OF THIS TRIBUNAL AT AHMEDA BAD IN THE CASE OF PUSHKAR CONSTRUCTION CO VS. ITO REPORTED IN (201 5) 43 ITR (TRIB.) 293 (ITAT AHM.) HAS FOLLOWED THE DECISION OF THE HON'BL E BOMBAY HIGH COURT IN THE CASE OF CIT VS. VANDANA PROPERTIES (SUPRA) AND ALSO THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. VOORA PROP ERTY DEVELOPERS (P) LTD (SUPRA) TO HOLD THAT THE ASSESSEE IS ENTITLED T O DEDUCTION U/S 80IB(10) OF THE ACT, IF THE ASSESSEE FULFILLS THE CONDITION OF CONSTRUCTING A HOUSING PROJECT ON A PLOT HAVING THE AREA OF MORE THAN ONE ACRE. IT WAS HELD THAT ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE, THERE COULD B E ANY NUMBER OF HOUSING PROJECTS AND SINCE THE HOUSING PROJECTS WER E APPROVED BY THE LOCAL AUTHORITY AND FULFILLED THE CONDITIONS SET OUT U/S 80IB(10), DEDUCTION COULD NOT BE DENIED TO ALL THE HOUSING PROJECTS. IT WAS A LSO HELD THAT SECTION 80IB(10) SPECIFIED THE SIZE OF THE PLOT OF LAND BUT NOT THE SIZE OR THE NUMBER OF HOUSING PROJECTS THAT WERE REQUIRED TO BE UNDERT AKEN ON A PLOT HAVING MINIMUM AREA OF ONE ACRE. 29. IN THE CASE OF M/S. VISWAS PROMOTERS PVT. LTD ( CITED SUPRA), THE HON'BLE MADRAS HIGH COURT HAS OBSERVED THAT THERE IS NO DEF INITION OF THE EXPRESSION 'HOUSING PROJECT' U/S 80IB OF THE ACT AN D THAT SAID EXPRESSION IS DEFINED UNDER EXPLANATION TO SECTION 80HHBA OF THE ACT. THE HON'BLE HIGH COURT, AFTER CONSIDERING THE SAID DEFINITION, HAS H ELD AS UNDER: '13. SECTION 80IA OF THE ACT IS A SPECIFIC PROVISIO N WHICH DEALS WITH DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM INDU STRIAL UNDERTAKINGS OR ENTERPRISES ENGAGED IN THE DEVELOPMENT OF INFRASTRU CTURAL FACILITIES SUCH AS ROADS, BRIDGES AND OTHER STRUCTURE AS REGARDS THE G RANT OF DEDUCTION IN RESPECT OF DEVELOPMENT AND CONSTRUCTION OF A HOUSIN G PROJECT. SECTION 80IB IS A SPECIFIC PROVISION IN RESPECT OF PROFITS AND GAINS FROM UNDERTAKINGS ENGAGED IN DEVELOPING AND CONSTRUCTING HOUSING PROJ ECTS OTHER THAN INFRASTRUCTURE DEVELOPMENT UNDERTAKINGS. THUS, HOUS ING PROJECTS CONSIDERED HEREIN UNDER SECTION 80IB REFERS TO ANY BUILDING OT HER THAN ROAD, BRIDGE OR OTHER STRUCTURE. THUS, GOING BY THE DEFINITION OF ' HOUSING PROJECT' TO MEAN THE CONSTRUCTION OF 'ANY BUILDING' AND THE DEDUCTIO N UNDER SECTION 80IB OF THE ACT IS HUNDRED PER CENT OF THE PROFITS DERIVED IN THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR FROM SUCH HOUSING P ROJECT COMPLYING WITH THE CONDITION, EACH BLOCK IN THE LARGER PROJECT BY NAME 'AGRINI' AND 'VAJRA', HAS TO BE TAKEN AS AN INDEPENDENT BUILDING AND HENCE A HOUSING PROJECT, FOR THE PURPOSE OF CONSIDERING A CLAIM OF DEDUCTION. SECTION 80IB(10) BEGINS BY STATING: ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 6 OF 8 THUS THE UNDERTAKING QUALIFYING FOR DEDUCTION UNDER SECTION 80IB OF THE ACT IS AN 'UNDERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS' AND THE DEDUCTION IS IN RESPECT OF 'PROFITS AND GAINS DERIV ED FROM' SUCH HOUSING PROJECT, SATISFYING THE CONDITIONS STIPULATED IN TH E CLAUSE THEREIN. THUS, WITHIN A COMPOSITE HOUSING PROJECT, WHERE THERE ARE ELIGIBLE AND INELIGIBLE UNITS, THE ASSESSEE CAN CLAIM DEDUCTION IN RESPECT OF ELIGIBLE UNITS IN THE PROJECT AND EVEN WITHIN THE BLOCK, THE ASSESSEE IS ENTITLED TO CLAIM PROPORTIONATE RELIEF IN THE UNITS SATISFYING THE EX TENT OF THE BUILT-UP AREA. 14. ON THE FACTS ADMITTED BY THE REVENUE, IN THE PR OJECTS 'AGRINI' AND 'VAJRA', THERE ARE NUMBER OF FLATS WHICH ARE BELOW 1500 SQ.FT., AND THE RELEVANT BUILT-UP AREA REQUIREMENT IS SPECIFIED UND ER SECTION 80IB(10)(C) OF THE INCOME TAX ACT. THUS, THE BUILT-UP AREA IN SOME OF THE FLATS IN BOTH THESE PROJECTS ARE IN EXCESS OF 1500 SQ.FT., I.E., 32 FLA TS IN AGRINI AND ONLY ONE FLAT IN VAJRA AND THAT THE ASSESSEE HAD NOT CLAIMED ANY DEDUCTION ON THIS. WE HOLD THAT THE TRIBUNAL IS NOT CORRECT IN ITS VIEW, THAT BY REASON OF THESE UNITS BEING IN EXCESS OF 1500 SQ.FT., THE ENTIRE CLAIM OF THE ASSESSEE IN RESPECT OF THESE TWO PROJECTS WOULD STAND REJECTED UNDER SECTI ON 80IB(10) OF THE INCOME TAX ACT. THUS, GOING BY THE DEFINITION OF 'H OUSING PROJECT' UNDER EXPLANATION TO SECTION 80HHBA OF THE ACT AS REFERRE D TO ABOVE AS THE CONSTRUCTION OF 'ANY BUILDING' AND THE WORDINGS IN SECTION 80IB(10) OF THE ACT, THE QUESTION OF REJECTION IN ENTIRETY OF THE P ROJECT ON ACCOUNT OF ANY ONE OF THE BLOCKS NOT COMPLYING WITH THE CONDITIONS, DO ES NOT ARISE. EVEN IN THE CASE OF EACH ONE OF THE BLOCKS, WHEREVER THERE ARE FLATS WHICH SATISFIED THE CONDITIONS PARTICULARLY OF THE NATURE STATED UNDER SECTION 80IB(10)(C) OF THE ACT, WE HAVE ALREADY UPHELD THE CASE OF THE ASSESSE E IN T.C.NOS.1348 AND 1349 OF 2007 DATED 10.10.2012 FOR GRANT OF RELIEF U NDER SECTION 80IB(10) OF THE ACT ON A PROPORTIONATE BASIS, BY FOLLOWING THE DECISION OF THE BOMBAY HIGH COURT REPORTED IN [2011] 333 ITR 289 (CIT VS. BRAHMA ASSOCIATES). THUS APPLYING THE DECISION OF THIS COURT IN T.C.NOS .1348 AND 1349 OF 2007 DATED 10.10.2012, WE HOLD THAT THE ASSESSEE IS ENTI TLED TO SUCCEED BOTH ON THE PRINCIPLE OF PROPORTIONALITY AS WELL AS BY REAS ON OF THE CONSTRUCTION ON THE MEANING OF THE EXPRESSION 'HOUSING PROJECT' AS REFERRING TO CONSTRUCTION OF ANY BUILDING AND THE WORDINGS IN SECTION 80IB(10 ) OF THE ACT. IN THE CIRCUMSTANCES, WE HOLD THAT THE MERE FACT THAT ONE OF THE BLOCKS HAVE UNITS EXCEEDING BUILT-UP AREA OF 1500 SQ.FT, PER SE, WOUL D NOT RESULT IN NULLIFYING THE CLAIM OF THE ASSESSEE FOR THE ENTIRE PROJECTS. CONSEQUENTLY, IN RESPECT OF EACH OF THE BLOCKS, THE ASSESSEE IS ENTITLED TO HAV E THE BENEFIT OF DEDUCTION IN RESPECT OF RESIDENTIAL UNITS SATISFYING THE REQUIRE MENT UNDER SECTION 80IB(10)(C) OF THE ACT. IN SO HOLDING, WE ALSO AGRE E WITH THE DECISION OF THE BOMBAY HIGH COURT REPORTED IN [2012] 206 TAXMAN 584 (CIT V. VANDANA PROPERTIES), WHICH WAS DECIDED BY THE BOMBAY HIGH C OURT ON SIMILAR LINES AS IN THE ASSESSEE'S CASE BEFORE US'. IN THE CASE BEFORE US, THE ASSESSEE HAD ADMITTEDLY COMPLETED FOUR BUILDINGS I.E. G, H, I & K AND HAS ALSO FURNISHED THE OCCUPAN CY CERTIFICATE DATED 29.3.2012. THEREFORE, THE ASSESSEE IS CLEARLY ELIGI BLE FOR DEDUCTION U/S 80IB(10) ON THE PROFITS EARNED FROM THESE BUILDINGS . 30. THE NEXT QUESTION TO BE CONSIDERED IS WHETHER T HE ASSESSEE IS ENTITLED TO DEDUCTION U/S 80IB(10) ON THE PROFITS FROM BLOCKS F , K & L FOR WHICH THE ASSESSEE HAS NOT OBTAINED THE OCCUPANCY CERTIFICATE FROM GHMC, ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 7 OF 8 HYDERABAD AS ON 30.03.2013 BUT HAS ALREADY SUBMITTE D AN APPLICATION FOR THE SAME. IT IS SEEN THAT ACCORDING TO THE ARCHITEC TS' CERTIFICATE, THE ASSESSEE HAS COMPLETED THE CONSTRUCTION IN ALL ASPECTS AND T HAT THE ASSESSEE HAS SUBMITTED THE APPLICATION FOR ISSUANCE OF OCCUPANCY CERTIFICATE AS ON 30.3.2013 BY PAYING THE REQUISITE FEES. THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SAMUH AWAS LTD REPORTED IN (2015) 377 ITR 150 (B OM.) WHEREIN UNDER SIMILAR CIRCUMSTANCES, IT WAS HELD THAT WHERE THE A SSESSEE HAS APPLIED FOR THE ISSUANCE OF COMPLETION CERTIFICATE BY PAYING TH E FEES WITHIN THE SPECIFIED TIME, THE DELAY BY THE MUNICIPAL CORPORATION IN ISS UANCE OF CERTIFICATE CANNOT BE ATTRIBUTED TO THE ASSESSEE AND THE ASSESS EE IS ENTITLED TO THE DEDUCTION U/S 80IB(10). IN THE SAID CASE, THE ASSES SEE WAS SUPPOSED TO GET THE CERTIFICATE BEFORE 31ST MARCH, 2008 WHEREAS THE ASSESSEE HAS SUBMITTED APPLICATION ON 26.03.2008 AND ALSO DEPOSITED THE FE E FOR SUCH CERTIFICATE ON 31.3.2008 AND THE CERTIFICATE WAS ISSUED IN OCTOBER , 2008. BASED ON THESE FACTS, THE HON'BLE HIGH COURT HELD THAT THE DELAY I N OBTAINING THE CERTIFICATE CANNOT BE ATTRIBUTED TO THE ASSESSEE. THE ASSESSEE BEFORE US, HAS ALSO RELIED UPON THE DECISION OF THE COORDINATE BENCH OF THIS T RIBUNAL IN THE CASE OF SHRI M. SRINIVASA RAO VS. ACIT IN ITA NO.1049/HY D/2014 DATED 29.2.2016 WHICH IN TURN HAS FOLLOWED THE DECISION O F THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. HINDUSTAN SAMUH A WAS LTD (SUPRA) TO HOLD THAT WHERE THE ASSESSEE HAS APPLIED FOR ISSUAN CE OF OCCUPANCY CERTIFICATE AND THE MUNICIPAL AUTHORITIES DO NOT RE FUSE TO ISSUE THE CERTIFICATE WITHIN 21 DAYS FROM THE DATE OF RECEIPT OF SUCH APPLICATION, THEN THE OCCUPANCY CERTIFICATE HAS TO BE PRESUMED TO HAV E BEEN ISSUED. IN THE CASE BEFORE US ALSO, THE ASSESSEE HAS MADE AN APPLI CATION ON 30.03.2008 AND WITHIN 21 DAYS THEREAFTER, THE MUNICIPAL AUTHOR ITIES DID NOT REFUSE THE OCCUPANCY CERTIFICATE AND THEREFORE, IT IS CLEAR TH AT THE ASSESSEE'S CLAIM HAS NOT BEEN DENIED AND HENCE HAS TO BE DEEMED TO HAVE BEEN ISSUED. IT IS ANOTHER FACT THAT THE ASSESSEE ITSELF MADE A FRESH APPLICATION AGAIN FOR ISSUANCE OF COMPLETION CERTIFICATE ON 28.05.2013, I N REPLY TO WHICH, THE MUNICIPAL CORPORATION VIDE LETTER DATED 13.06.2013 POINTED OUT CERTAIN DEFECTS, WHICH, IN OUR OPINION ARE NOT SUBSTANTIAL AND ESSENTIAL FOR CONSIDERING THE BLOCKS TO BE INCOMPLETE. THEY ARE O NLY PERIPHERAL WORKS, WHICH MAY BE PART OF THE HOUSING PROJECT BUT ARE NO T ESSENTIAL. THEREFORE, IN OUR OPINION, THE ASSESSEE IS ENTITLED TO THE DEDUCT ION U/S 80IB(10) EVEN FOR THE BLOCKS OF F, K AND L. THUS, ASSESSEE'S GROUNDS OF APPEAL NOS. 1 TO 5 ARE ALLOWED. 6. RESPECTFULLY FOLLOWING THE SAME, WE DEEM IT FIT AND PROPER TO REMAND THE ISSUE TO THE FILE OF THE AO WI TH THE DIRECTION TO EXAMINE WHETHER THE AREA OF BLOCKS A&D TOGETHER FULFILLS THE CONDITIONS OF 80IB(10) I.E. THE PROJECT SHOULD HAVE BEEN COMPLETED WITHIN THE STIPULATED PERIOD AND THE AREA SHOULD BE MORE THAN ONE ACRE AND NONE OF THE FLATS SHOULD EXCEED 1500 S Q. FT AND THE ITA NO 479 OF 2017 GRANDEUR HOMES P LTD SECUNDERABA D. PAGE 8 OF 8 OCCUPANCY CERTIFICATE HAS BEEN FURNISHED AND IF ALL THE ABOVE CONDITIONS ARE SATISFIED, THE DEDUCTION U/S 80IB(10 ) SHALL NOT BE DISALLOWED IN RESPECT OF THESE TWO BLOCKS. 7. IN THE RESULT, ASSESSEES APPEAL IS TREATED AS A LLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH MAY, 2019. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 29 TH MAY, 2019. VINODAN/SPS COPY TO: 1 M/S. GRANDEUR HOMES PVT. LTD, 4 TH FLOOR, ASHOK HITECH CHAMBER, 8-2-12-/76/1/B/16, 17, 18, ROAD NO.2 BANJARA HILLS, HYDERABAD 500034 2 ACIT, CIRCLE 2(2) SIGNATURE TOWERS, KONDAPUR, HYD ERABAD 3 CIT (A)-2 HYDERABAD 4 PR. CIT 2 HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER