ITO, Wd, 8(4), Pune, Pune V. M/s. Sarjan Construction, Talegaon Dabhade

ITA 505/PUN/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2007 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 21-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NITIN W KHARE
• Assessee Lawyers: ANN KAPTHUAMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS. 505/PN/2011 TO ITA NO.510/PN/2011 (ASSESSMENT YEARS 2002-03 TO 2007-08) INCOME TAX OFFICER, WARD 8(4), PUNE .. APPELLANT VS. M/S. SARJAN CONSTRUCTION, 158, KADOLKAR COLONY, TAL : MAVAL, TALEGAON DABHADE. PAN NO.AAFFS 5805E. .. RESPONDENT ASSESSEE BY : SRI NITIN W. KHARE RESPONDENT BY : MS. ANN KAPTHUAMA DATE OF HEARING : 04-03-2013 DATE OF PRONOUNCEMENT : 20-03-2013 ORDER PER G.S.PANNU, AM : THESE ARE GROUP OF 6 APPEALS, ALL PREFERRED BY THE REVENUE AND ARISE OUT OF SEPARATE ORDERS OF THE CIT(A) PERTAINING TO ASSE SSMENT YEARS 2002-03 TO 2007-08. THE PERTINENT ISSUE IN ALL THE APPEALS RE LATE TO ASSESSEES CLAIM FOR DEDUCTION U/S.80IB(10) OF THE INCOME TAX ACT (IN SH ORT THE ACT), THEREFORE, ALL THE APPEALS HAVE BEEN HEARD TOGETHER AND A CONSOLID ATED ORDER IS BEING PASSED FOR THE SAKE OF CONVENIENCE AND BREVITY. 2. IT WAS A COMMON POINT BETWEEN THE PARTIES THAT T HE DISCUSSION MADE BY THE ASSESSING OFFICER IN THE A.Y. 2004-05 IS THE LE AD DISCUSSION AND ACCORDINGLY THE APPEAL OF THE REVENUE VIDE ITA 507/ PN/2011 FOR A.Y. 2004- 05 IS TAKEN AS THE LEAD CASE. ITA NO.507/PN/2011 P ERTAINING TO A.Y. 2004-05 IS AN APPEAL PREFERRED BY THE REVENUE AGAINST THE O RDER OF THE CIT(A) DATED 12- 01-2011 WHICH IN TURN HAS ARISEN FROM AN ASSESSMENT ORDER DATED 27-12-2006 2 PASSED BY THE ASSESSING OFFICER U/S.143(3) OF THE A CT. THE GROUNDS OF APPEAL AS RAISED BY THE REVENUE READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S.80IB(10) AT RS.18,91, 485/- BY RECKONING THE ELIGIBLE PLOT AREA EXCEEDING 1 ACRE, I.E.6957.81 SQ.MTRS. (A S PER GOVT. VALUES REPORT) WHEREAS, AS PER THE FACTS THE ORIGINAL PURCHASE OF PLOT WAS 2684.25 SQ.MTRS AND AFTER ADDITION MADE THERETO OF AREA OF 4273.56 SQ.MTRS. A ND APPROVAL TO EACH OF THE LAYOUT PLAN WAS SANCTIONED SEPARATELY BY THE TALEGAON DABA DHE NAGAR PARISHAD VIDE NO.NN/BP/KV/2188/04 DT. 02/08/2004 AND NO. NN/BP/KV /1678 DT. 19/05/2005. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S.80IB(10) AT RS.18,91, 485/- TAKING INTO CONSIDERATION THAT THE PROJECT WAS COMPLETED WITHIN THE PRESCRIBE D LIMIT AS PER SEC.80IB(10)(A)(II) OF THE I.T. ACT WHEN THE PROJECT WAS COMMENCED AS P ER IST APPROVAL BY TALEGAON DABADHE NAGAR PARISHAD ON 31/01/2001 AND COMPLETED ON 06/06/2008 WHICH SHOULD HAVE BEEN COMPLETED UPTO 31/03/2008. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW THE LD. CIT(A) ERRED IN ALLOWING THE DEDUCTION U/S.80IB(10) AT RS.18,91, 485/- CONSIDERING THE AREA OF AMALGAMATED PLOT AS A SINGLE PLOT HAVING AN AREA OF 7265.53 SQ. MTRS. (AS PER BY LAY OUT PLAN) WHICH IS MORE THAN ONE ACRE WHEN THE ORIG INAL DEVELOPMENT AGREEMENT WAS EXECUTED BY SMT VATSALABAI RAVINDAR ARGADE AND APPR OVAL FOR DEVELOPMENT WAS PRIOR TO 01/04/1998 FOR AREA OF 2684.25 SQ. MTRS. A ND SUBSEQUENTLY ADDED PLOT AREA 4273.56 SQ.MTRS. 3. IN BRIEF, THE FACTS ARE THAT THE ASSESSEE IS A P ARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF PROMOTER, DEVELOPER AND BUILDERS CA RRYING ON CONSTRUCTION ACTIVITIES. FOR THE A.Y. 2004-05 THE ASSESSEE FILE D A RETURN OF INCOME DECLARING NIL INCOME WHICH INTERALIA INCLUDED A CLAIM OF DEDU CTION U/S.80IB(10) OF ` 18,91,785/- WITH RESPECT TO THE PROFITS AND GAINS F ROM THE HOUSING PROJECT NAMED AS SHREERANG VIHAR. THE ASSESSING OFFICER HAS DENIED THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80IB(10) OF THE ACT PRIMARILY ON THE GROUND THAT THE ASSESSEE FAILED TO SATISFY THE CONDITIONS PRESC RIBED IN THE RELEVANT SECTION. THE CIT(A) HAS SINCE ALLOWED THE CLAIM OF THE ASSES SEE, AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE US BY WAY OF STATED GRO UNDS OF APPEAL. 4. GROUND OF APPEAL NO.1 RAISED BY THE REVENUE IS W ITH REGARD TO THE CLAIM OF DEDUCTION WITH RESPECT TO SHREERANG VIHAR PROJ ECT. IN THE STATED GROUND OF APPEAL, THE LEARNED DEPARTMENTAL REPRESENTATIVE POI NTED OUT A TYPOGRAPHICAL ERROR TO THE EFFECT THAT INSTEAD OF 6957.81 SQ.MTRS . THE AREA IS TO BE READ AS 3 7265.63 SQ. MTRS. AS CORRECTLY NOTED BY THE ASSESSI NG OFFICER IN PARA 8(III) OF THE ASSESSMENT ORDER. SUBJECT TO THIS CORRECTION W E PROCEED FURTHER. ONE OF THE CONDITIONS CONTAINED IN CLAUSE (B) OF SECTION 80IB( 10) IS TO THE EFFECT THAT THE HOUSING PROJECT IS TO BE ON THE SIZE OF A PLOT OF L AND WHICH HAS A MINIMUM AREA OF 1 ACRE. AS PER THE DISCUSSION IN PARA 8(III) BY THE ASSESSING OFFICER, IT IS STATED THAT IN TERMS OF THE CONSTRUCTION PLAN OF TH E SHREERANG VIHAR PROJECT, THE PLOT HAS 4 PARTS, I.E. PART-A, PART-B, PART-C A ND A ROAD, AS PER THE AREA DETAILED BELOW : A. AREA OF PART A - 3287.840 SQ.MTRS B. AREA OF PART B - 2663.828 SQ.MTRS C. AREA OF PART C - 223.586 SQ.MTRS D. AREA OF ROAD - 560.376 SQ.MTRS 5. IN THIS BACKGROUND THE ASSESSING OFFICER CONCLUD ED THAT NONE OF THE SEPARATE PARTS WAS OF AN AREA EXCEEDING 1 ACRE AND THEREFORE THE ASSESSEE DOES NOT SATISFY THE CONDITION CONTAINED IN CLAUSE (B) T O SECTION 80IB(10) OF THE ACT. 6. ON THIS ASPECT THE CIT(A) HAS NEGATED THE STAND OF THE ASSESSING OFFICER BY RELYING ON HIS DISCUSSION IN PARA 8,9, & 10 OF HIS ORDER DATED 27-01-2011 FOR THE A.Y.2006-07, WHICH IS THE SUBJECT MATTER OF APPEAL VIDE ITA NO.509/PN/2011. THE PLEA OF ASSESSEE WAS THAT IT H AD ACQUIRED DEVELOPMENT RIGHTS IN RESPECT OF A SINGLE PLOT OF LAND ADMEASUR ING 7265.53 SQ.MTRS AND THAT ALL THE FOUR PARTS CONSTITUTED A SINGLE PLOT. IN S UPPORT ASSESSEE SUBMITTED COPIES OF 7/12 EXTRACT OF THE LAND TO SHOW THAT IT WAS A SINGLE PLOT WHICH COVERED THE 4 PARTS STATED BY THE ASSESSING OFFICER. IT WAS EXPL AINED BY THE ASSESSEE THAT ONLY FOR THE PURPOSES OF ARCHITECTURAL DRAWINGS AND FOR IDENTIFYING THE PHASES OF CONSTRUCTION ACTIVITY THAT THE PARTS WERE SHOWN SEP ARATELY IN THE CONSTRUCTION PLANS REFERRED BY THE ASSESSING OFFICER. SO, HOWEV ER, IT DID NOT AMOUNT TO A DIVISION OF PLOT SO AS TO EXAMINE THE CONDITION OF 1 ACRE FOR EACH PART 4 SEPARATELY. THE ASSESSEE ALSO CONTENDED THAT THE R OAD REFERRED TO BY THE ASSESSING OFFICER WAS AN INTERNAL ROAD AND THAT THE RE WAS NO BASIS FOR THE ASSESSING OFFICER TO SAY THAT SUCH ROAD BELONGED TO THE LOCAL AUTHORITY. IN THE BACKGROUND OF THE AFORESAID ASSERTIONS OF THE ASSES SEE, THE CIT(A) HAS CONCLUDED AS UNDER : 9. I HAVE GIVEN CAREFUL CONSIDERATION TO THE FACTS OF THE MATTER. I HAVE ALSO PERUSED COPIES OF THE 7/12 EXTRACT AND THE DEVELOPM ENT AGREEMENT ENTITLED AGREEMENT OF ASSIGNMENT DATED 16-02-194 WHEREIN T HE ASSESSEE FIRM IS THE ASSIGNEE OF THE PROPERTY ADMEASURING 7265.63 SQ.MT. WHICH HAS BEEN DESCRIBED IN THE SCHEDULE TO THE SAID AGREEMENT AS FOLLOWS : SCHEDULE B PORTION ADMEASURING 7265.63 SQ.MTRS OUT OF S.NO.53 SITUATED AT TALEGAON DABHE IN THE LIMITS OF TALEGAON DABHADE MUNICIPAL C OUNCIL AND IN SUB- REGISTRATION DISTRICT TALUK MAVAL DIST.PUNE AND WHI CH IS BOUNDED AS FOLLOWS: EAST : S.NO.43(OLD) WEST : S.NO.40 & 41 (OLD) SOUTH : C.T.S. NO.1544/1543/1542 NORTH : PART OF S.NO.42 10. THERE IS NO MENTION IN THE SAID AGREEMENT OF TH E ASSIGNED PROPERTY BEING DIVIDED INTO DIFFERENT PARTS WITH A PUBLIC ROAD DIV IDING THE TOTAL AREA INTO DIFFERENT PORTIONS. IN FACT, THE ENTIRE AREA ADMEASURING 726 5.63 SQ.MT. HAS BEEN DESCRIBED AS ONE PORTION BOUNDED BY CONSECUTIVE SERIAL NOS. 40 ,41,42, 43 & 44. ON THE OTHER HAND, THE NATURE OF EVIDENCE ON THE BASIS OF WHICH THE ASSESSING OFFICER HAS CONCLUDED THAT THE ROAD WAS A PUBLIC ROAD AND TH EL AND ON WHICH THE PROJECT STANDS CONSISTS OF DIFFERENT PORTIONS IS NOT CLEAR. A COP Y OF THE SANCTION PLAN DATED 31-01- 2001 HAS ALSO BEEN SUBMITTED BY THE APPELLANT, WHIC H TOO REVEALS THAT THE TOTAL PLOT AREA WAS 7265.630 SQ.MT. 7. BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATIV E HAS PRIMARILY REFERRED TO THE STAND OF THE ASSESSING OFFICER , WHICH WE HA VE ALREADY NOTED IN PARAS 4 & 5 ABOVE, AND THE SAME IS NOT BEING REPEATED FOR T HE SAKE OF BREVITY. 8. ON THE OTHER HAND THE LEARNED REPRESENTATIVE APP EARING FOR THE ASSESSEE SUBMITTED THAT ON THE BASIS OF THE MATERIAL ON RECO RD THE CIT(A) HAD FACTUALLY CONCLUDED THAT THE ENTIRE PROJECT WAS ON A PIECE OF LAND ADMEASURING 7265.63 SQ.MTRS AND THAT THERE WAS NO DIVISION OF PLOT AS M ADE OUT BY THE ASSESSING OFFICER. IN THIS CONNECTION, THE LEARNED COUNSEL HA S REFERRED TO THE DEED OF ASSIGNMENT IN TERMS OF WHICH ASSESSEE ACQUIRED THE DEVELOPMENT RIGHTS OF THE 5 LAND (A COPY OF WHICH IS PLACED AT PAGES 13 TO 22 O F THE PAPER BOOK). FURTHER, ATTENTION WAS ALSO INVITED TO PAGE 27 OF THE PAPER BOOK WHEREIN IS PLACED COPY OF THE APPROVED PLAN OF THE PROJECT WHICH SHOWS THE TOTAL AREA OF THE PLOT AT 7265.630 SQ.MTRS. THUS, THE ORDER OF THE CIT(A) IS OUGHT TO BE DEFENDED ON THIS POINT. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. SECTION 80IB(10) OF THE ACT PROVIDES FOR DEDUCTION IN THE CASE OF AN UN DERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS, SUBJECT TO THE CONDITION S THEREIN. THE CONDITION RELEVANT FOR THE PRESENT PURPOSES IS CONTAINED IN C LAUSE (B) TO SECTION 80IB(10) WHICH PRESCRIBES THAT THE PROJECT IS TO BE ON THE S IZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF 1 ACRE. THE ASSESSING OFFICER EX AMINED THE CONSTRUCTION PLAN OF THE ASSESSEE AND HAS NOTICED THAT THE ENTIR E PLOT WAS DIVIDED INTO 4 PARTS NAMELY, PART-A, PART-B, PART-C AND A ROAD. SINCE T HE AREA FOR EACH OF THE PART WAS LESS THAN 1 ACRE HE HAS CONSTRUED THAT ASSESSEE DOES NOT MEET WITH THE REQUIREMENTS OF THE CLAUSE (B) TO SECTION 80IB(10) OF THE ACT. 10. ON THE CONTRARY THE CIT(A) HAS NOTICED THAT THE ENTIRE AREA OF PLOT, I.E. 7265.63 SQ.MTRS. (WHICH IS MORE THAN 1 ACRE) HAS BE EN ACQUIRED BY THE ASSESSEE IN ONE GO VIDE AGREEMENT DATED 16-02-1994. THE CIT (A) HAS ALSO REFERRED TO COPIES OF 7/12 EXTRACT ALONG WITH THE DEVELOPMENT A GREEMENT DATED 16-02-1994 TO POINT OUT THAT IT WAS A SINGLE PLOT AND NOT A PL OT WHICH WAS RESULT OF ANY AMALGAMATION OF THE PARTS REFERRED BY THE ASSESSING OFFICER. THE DIFFERENT PARTS NOTED BY THE ASSESSING OFFICER WERE ALSO EXPL AINED BY THE ASSESSEE TO THE EFFECT THAT THE SAME WERE DRAWN UP ONLY FOR ARCHITE CTURAL DRAWINGS AND FOR IDENTIFYING THE PHASES OF CONSTRUCTION. NEVERTHELE SS, FACTUALLY SPEAKING, WE FIND THAT THERE IS NO MATERIAL TO SAY THAT ASSESSEE DIVIDED THE PLOT OF 7265.63 SQ.MTRS. SO AS TO CONSTRUE THE 4 PARTS AS SEPARATE PROJECTS. THE DEVELOPMENT 6 RIGHTS OF THE LAND OF 7265.630 SQ.MTRS HAVE BEEN AC QUIRED SINGULARLY; THE LAYOUT PLAN HAS ALSO BEEN APPROVED FOR THE TOTAL PLOT AREA BY THE LOCAL AUTHORITY ON 31- 01-2001 SINGULARLY, AS PER PAGE 27 OF THE PAPER BOO K; AND, THE 7/12 EXTRACT REFERRED BY THE CIT(A) IS ALSO FOR THE SINGULAR PLO T AREA OF 7265.63 SQ.MTRS. FOR ALL THE ABOVE REASONS WE DO NOT FIND ANY REASONS TO DEPART FROM THE FINDINGS OF THE CIT(A) WHICH ARE BASED ON MATERIAL ON RECORD. 11. IN FACT WITH REGARD TO THE DISCUSSION IN ASSESS MENT ORDER WE FIND THAT THERE IS NO MATERIAL TO SUPPORT THE FINDINGS OF THE ASSESSING OFFICER. IN PARA 9 OF THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS O BSERVED THAT THE CONDITION WAS PROVED AND ESTABLISHED BY THE ASPECT OF DIFFERENT OWNERSHIPS . OSTENSIBLY, THERE IS NOTHING TO SUPPORT THE AFORESA ID BALD ASSERTION OF THE ASSESSING OFFICER AND EVEN AT THE TIME OF HEARING N O COGENT MATERIAL HAS BEEN LED BY THE REVENUE IN SUPPORT OF THE STAND OF THE A SSESSING OFFICER. IN PARA 8 (III) THE ASSESSING OFFICER HAS NOTICED THAT THE OW NERSHIP OF THE ROAD IS WITH MUNICIPAL CORPORATION. THE CIT(A) HAS NOTED THE ST AND OF THE ASSESSEE THAT THE AREA UNDER THE ROAD WAS ASSESSEES OWN PROPERTY IN AS MUCH AS IT WAS AN INTERNAL ROAD AND THE SAME DID NOT BELONG TO THE LO CAL AUTHORITY AND THAT THERE WAS NO DEVELOPMENT PLAN (DP) ROAD RUNNING THROUGH T HE PLOT. THE ASSESSEE ALSO CONTENDED BEFORE THE CIT(A) THAT IT WAS ELIGIB LE TO USE THE FSI OF THE AREA UNDER THE ROAD ALSO AND DEMONSTRATED THAT THE OWNER SHIP OF THE ROAD WAS NOT OF THE MUNICIPAL CORPORATION. THE ASSESSEE HAS ALSO R EFERRED TO THE PLAN APPROVED BY THE LOCAL AUTHORITY DATED 31-01-2001, ( A COPY O F WHICH IS PLACED AT PAPER BOOK PAGE 27) TO SHOW THAT THE ROAD IN QUESTION WAS AN INTERNAL ROAD AND THAT IT FORMED A PART OF THE SANCTIONED PLAN AND THAT IT WA S NOT UNDER THE OWNERSHIP OF THE LOCAL AUTHORITY. EVIDENTLY, THE CIT(A) WAS JUS TIFIED IN ITS REJECTING THE ASSERTION OF THE ASSESSING OFFICER THAT THE OWNERSH IP OF THE ROAD WAS WITH THE 7 MUNICIPAL CORPORATION. EVEN IN THE COURSE OF HEARI NG BEFORE US IT WAS SPECIFICALLY ENQUIRED AS TO ON WHAT BASIS THE ASSES SING OFFICER OBSERVED THAT THE OWNERSHIP OF THE ROAD WAS WITH MUNICIPAL CORPOR ATION. NO MATERIAL HAS BEEN REFERRED TO IN THIS REGARD AND IN THIS VIEW OF THE MATTER WE ARE IN AGREEMENT WITH THE CONCLUSION DRAWN BY THE CIT(A). THEREFORE, IN VIEW OF THE AFORESAID DISCUSSION AND ON THE BASIS OF THE MATERI AL AND EVIDENCE ON RECORD WE FIND THAT THE CIT(A) WAS JUSTIFIED IN CONSIDERING T HE AREA OF THE PLOT AT 7265.63 SQ.MTRS FOR THE PURPOSE OF EXAMINING THE CONDITION OF 1 ACRE CONTAINED IN CLAUSE (B) TO SECTION 80IB(10) OF THE ACT. AS A RES ULT, THE STAND OF THE REVENUE IS HEREBY DISMISSED. 12. NOW WE MAY TAKE UP GROUND OF APPEAL NO.2. IN T HIS REGARD THE LEARNED DEPARTMENTAL REPRESENTATIVE POINTED OUT A TYPOGRAPH ICAL ERROR IN THE STATED GROUND OF APPEAL TO THE EFFECT THAT INSTEAD OF THE DATE 31-03-2001 THE SAME IS TO BE READ AS 31-01-2001. IT IS FURTHER POINTED OUT B Y THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT THE SAID GROUND OF APPEAL RELAT ES TO THE OBJECTION THAT CONSTRUCTION OF THE HOUSING PROJECT OF THE ASSESSEE WAS NOT COMPLETED BEFORE THE STIPULATED DATE. IT IS FURTHER POINTED OUT THA T IN SO FAR AS SHREERANG VIHAR PROJECT IS CONCERNED IN A.Y. 2004-05 THERE IS NO SU CH OBJECTION HAS BEEN DISCUSSED BY THE ASSESSING OFFICER, SO HOWEVER, IT IS ONLY IN PARA 3(F) OF THE ASSESSMENT ORDER PERTAINING TO A.Y. 2006-07 THAT SU CH AN OBJECTION HAS BEEN RAISED. 13. IN TERMS OF DISCUSSION IN THE ASSESSMENT ORDER FOR A.Y. 2006-07 IT IS SEEN THAT AS PER THE ASSESSING OFFICER THE DATE OF APPRO VAL OF THE PROJECT BY THE LOCAL AUTHORITY IS 31-01-2001 AND THEREFORE THE CERTIFICA TE FOR COMPLETION OF CONSTRUCTION WAS REQUIRED TO BE ISSUED BY THE LOCAL AUTHORITY ON OR BEFORE 8 31-03-2008 WHEREAS AS PER THE ASSESSING OFFICER IT WAS ACTUALLY OBTAINED ON 06-06-2008. 14. BEFORE THE CIT(A), IN THE COURSE OF APPEAL FOR A.Y. 2006-07, IT WAS CANVASSED THAT THE COMPLETION CERTIFICATE DATED 06- 06-2008 REFERRED TO BY THE ASSESSING OFFICER WAS IN RESPECT OF ANOTHER PROJECT OF THE ASSESSEE NAMELY VRUNDAVAN WHICH WAS APPROVED ON 02-08-2004. THE ASSESSEE REFERRED TO COPIES OF THE OCCUPANCY CERTIFICATE FOR THE VRUNDA VAN PROJECT AND ALSO THE COPY OF THE APPROVED PLAN DATED 02-08-2004 IN SUPPO RT OF SUBMISSIONS. THE CIT(A) HAS SINCE RELIED ON SUCH DOCUMENTS AND HELD THAT THE COMPLETION CERTIFICATE DATED 06-06-2008 REFERRED TO BY THE ASS ESSING OFFICER WAS WITH REGARD TO THE VRUNDAVAN PROJECT AND NOT SHREERAN G VIHAR PROJECT AND HAS ACCORDINGLY ALLOWED THE PLEAS OF THE ASSESSEE. 15. BEFORE US THERE IS NO CHANGE IN THE FACTUAL POS ITION BROUGHT OUT BY THE CIT(A) WHICH IS TO THE EFFECT THAT THE COMPLETION C ERTIFICATE DATED 06-06-2008 (A COPY OF WHICH HAS BEEN PLACED IN THE PAPER BOOK AT PAGE 12) IS WITH RESPECT TO THE VRUNDAVAN PROJECT. SO HOWEVER, WITH REGAR D TO THE SHREERANG VIHAR PROJECT ADMITTEDLY, THE FIRST APPROVAL OF THE LOCAL AUTHORITY IS DATED 31-01-2001 AND THE ASSESSEE WAS TO HAVE UNDERTAKEN COMPLETION OF THE CONSTRUCTION BY 31- 03-2008 IN TERMS OF 80IB(10)(A)(I) OF THE ACT. AT THE TIME OF HEARING THE LEARNED COUNSEL FOR THE ASSESSEE WAS ASKED TO SUBST ANTIATE THE ACTUAL DATE OF COMPLETION OF SHREERANG VIHAR PROJECT IN TERMS OF 80IB(10)(A)(I) OF THE ACT. IN THIS CONNECTION, ON BEHALF OF THE ASSESSEE, THE RELEVANT OCCUPANCY CERTIFICATES ISSUED BY THE TALEGAON DABHADE NAGAR PARISHAD, DIST . PUNE HAVE BEEN FURNISHED TO SUBSTANTIATE THAT CONSTRUCTION OF THE PROJECT WAS COMPLETE MUCH EARLIER THAN 31-03-2008. THE COPIES OF SUCH OCCUPA NCY CERTIFICATES ISSUED BY THE PRESCRIBED LOCAL AUTHORITY, I.E., TALEGAON DABH ADE NAGAR PARISHAD, DIST. 9 PUNE FURNISHED ON RECORD BEARS OUT THE STATEMENT OF THE ASSESSEE. THEREFORE, WE FIND THAT THE ASSESSEE IS JUSTIFIED IN CANVASSIN G THAT THE CONSTRUCTION OF SHREERANG VIHAR PROJECT WAS COMPLETED WITHIN THE TIME STIPULATED IN SECTION 80IB(10)(A)(I). ACCORDINGLY, GROUND OF APPEAL NO.2 IS DISMISSED. 16. IN SO FAR AS GROUND OF APPEAL NO. 3 IS CONCERNE D, THE LEARNED DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE SA ME RELATES TO THE VRUNDAVAN PROJECT AND SO FAR AS THE A.YS. 2002-03 TO 2005-06 IS CONCERNED THE ASSESSEE DID NOT MAKE ANY CLAIM FOR DEDUCTION U /S.80IB(10) WITH RESPECT TO THE SAID PROJECT AND THEREFORE SUCH GROUND OF APPE AL IS MISCONCEIVED FOR THE A.YS. 2002-03 TO 2005-06. 17. IN VIEW OF THE AFORESAID, GROUND OF APPEAL NO.3 FOR THE A.Y. 2004-05 IS DISMISSED. 18. IN SO FAR AS THE APPEALS FOR A.YS. 2002-03, 200 3-04 & 2005-06 ARE CONCERNED THE GROUNDS OF APPEAL RAISED BY THE REVEN UE ARE IDENTICAL TO THOSE CONSIDERED BY US IN THE EARLIER PARAGRAPHS FOR THE A.Y. 2004-05. ACCORDINGLY, OUR DECISION IN A.Y. 2004-05 APPLY MUTATIS MUTANDIS IN THE SAID APPEALS ALSO. 19. THE ONLY TWO APPEALS REMAINING ARE FOR A.YS. 20 06-07 AND 2007-08. IN A.Y. 2006-07, APART FROM THE UNDER MENTIONED GROUND , THE OTHER GROUNDS RAISED ARE ON SIMILAR LINES AS HAS BEEN NOTED IN TH E APPEAL FOR A.Y. 2004-05 EARLIER :- 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AN D IN LAW THE LD. CIT(A) HAS ERRED IN ALLOWING THE DEDUCTION U/S.80IB(10) AT RS. 2,86,904/- CONSIDERING THE AREA OF AMALGAMATED PLOT AS A SINGLE PLOT HAVING AN AREA OF 7265.53 SQ.MTRS.(AS PER THE LAY OUT PLAN) WHICH IS MORE THAN ONE ACRE WHEN THE ORIG INAL DEVELOPMENT AGREEMENT WAS EXECUTED BY SMT. VATSALABAI RAVINDRA ARGADE AND APP ROVAL FOR DEVELOPMENT WAS PRIOR TO 1/4/1998 FOR AREA OF 2684.25 SQ.MTRS AND S UBSEQUENTLY ADDED PLOT AREA 4273.56 SQ.MTRS. 10 20. AT THE OUTSET THE LEARNED DEPARTMENTAL REPRESEN TATIVE POINTED OUT THAT THERE IS A TYPOGRAPHICAL ERROR IN THE GROUND OF APP EAL IN AS MUCH AS THE AMOUNT OF DEDUCTION U/S.80IB(10) BE READ AS ` 28,69,904/- INSTEAD OF ` 2,86,904/- AND THAT THE AREA OF ` 7265.53 SQ. MTRS IS TO BE READ AS 6957.81 SQ.MTRS. IN THIS CONNECTION THE ASSESSING OFFICER NOTED IN PARA 3(C) OF THE ASSESSMENT ORDER THAT THE NEW PROJECT, I.E. VRUNDAVAN PROJECT WAS APPRO VED BY THE LOCAL AUTHORITY ON 02-08-2004 AND SUBSEQUENTLY A REVISED APPROVAL W AS GRANTED ON 19-05- 2005. THE ASSESSING OFFICER NOTICED THAT THE AREA AS PER THE ORIGINAL PLAN WAS 2684.25 SQ.MTRS WHICH WAS LESS THAN 1 ACRE AND THER EFORE THE ASSESSEE DID NOT QUALITY THE CONDITION OF HAVING AN AREA OF 1 ACRE I N 80IB(10)(B) OF THE ACT. THE CIT(A) HAS NOTICED THAT THE PLOT ON WHICH THE PROJE CT IS BUILT WAS MORE THAN 1 ACRE AND THAT MERELY BECAUSE THE AREA CONSTRUCTED W AS ONLY 2684.35 SQ.MTRS CANNOT BE CONSIDERED TO HOLD THAT THE ASSESSEE DID NOT SATISFY THE CONDITION CONTAINED IN 80IB(10)(B) OF THE ACT. THE CIT(A) HA S NOTED THAT THE REQUIREMENT OF CLAUSE(B) TO SECTION 80IB(10) IS TO THE EFFECT THAT THE PROJECT SHOULD BE ON THE SIZE OF A PLOT OF LAND WHICH HAS A MINIMUM AREA OF 1 ACRE AND THAT IT IS NOT NECESSARY THAT THE AREA PROPOSED TO BE BUILT SHOULD BE OF 1 ACRE OR MORE. IN THIS MANNER THE PLEA OF THE ASSESSEE W AS UPHELD BY THE CIT(A), AGAINST WHICH THE REVENUE IS IN APPEAL BEFORE US. 21. BEFORE US THE LEARNED REPRESENTATIVE FOR THE AS SESSEE REFERRED TO PAGE 93 OF THE PAPER BOOK WHEREIN HAS PLACED THE APPROVED L AYOUT PLAN OF THE VRUNDAVAN PROJECT DATED 02-08-2004 WHICH SUPPORTS THE STAND OF THE CIT (A). THE TOTAL AREA OF THE PLOT IS 4326.0 SQ.MTRS AND 2684.35 SQ.MTRS IS THE AREA OF THE LAND FOR THE PROPOSED CONSTRUCTION. IN THIS VIEW OF THE MATTER, WE THEREFORE FIND NO MISTAKE ON THE PART OF THE CIT(A) IN HOLDING THAT THE PROJECT VRUNDAVAN PROJECT SATISFIES THE CONDITION OF BEIN G ON THE SIZE OF A PLOT OF 11 LAND WHICH HAS A MINIMUM AREA OF 1 ACRE. THE ORDER OF THE CIT(A) IS HEREBY AFFIRMED AND ACCORDINGLY THE REVENUE HAS TO FAIL ON THIS ASPECT ALSO. 22. IN THE RESULT, THE APPEAL OF THE REVENUE FOR A. Y. 2006-07 IS DISMISSED. 23. GROUNDS OF APPEAL BY THE REVENUE IN A.Y. 2007-0 8 ARE IDENTICAL TO THAT OF ITA NO.509/PN/2011 FOR A.Y. 2006-07. FOLLOWING THE SAME REASONING THE SAID APPEAL OF THE REVENUE IS ALSO DISMISSED. 24. IN THE RESULT, ALL THE APPEALS FILED BY REVENUE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS, THE 20 TH DAY OF MARCH 2013. SD/- SD/- (R.S.PADVEKAR) (G.S.PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED THE 20 TH MARCH 2013 SATISH COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE 2. THE DEPARTMENT 3. THE CIT(A)-V, PUNE 4. CIT-V, PUNE 5. D.R. A BENCH, PUNE 6. GUARD FILE BY ORDER // TRUE COPY // SENI OR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, PUNE