M/s. D.S. Kulkarni Developers Ltd., Pune V. Addl. CIT, Range-1, Pune

ITA 725/PUN/2013

• Counselvise Citation: 72524514 RSA 2013
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUNIL PATHAK
• Keywords: Notional interest

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NOS.723 TO 725/PN/2013 (A.YS. 2007-08 TO 2009-10) M/S. D.S. KULKARNI DEVELOPERS LTD. 1187/60, JANGLI MAHARAJ ROAD, SHIVAJINAGAR, PUNE 411005 PAN: AAACD6413H APPELLANT VS. ADDL.CIT, RANGE-1, PUNE RESPONDENT ITA NOS.769 TO 771/PN/2013 (A.YS. 2007-08 TO 2009-10) ADDL.CIT, RANGE-1, PUNE APPELLANT VS. M/S. D.S. KULKARNI DEVELOPERS LTD. 1187/60, JANGLI MAHARAJ ROAD, SHIVAJINAGAR, PUNE 411005 PAN: AAACD6413H RESPONDENT ASSESSEE BY : S/SHRI SUNIL PATHAK AND NIKHIL PATHAK DEPARTMENT BY : SHRI RAJESH DAMOR DATE OF HEARING : 24.07.2014 DATE OF PRONOUNCEMENT : 31.07.2014 ORDER PER SHAILENDRA KUMAR YADAV : THESE CROSS APPEALS PERTAIN TO THE SAME ASSESSEE ON ALMOST SIMILAR ISSUES ARISING FROM THE CONSOLIDATED ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, PUNE, DATED 23.01.2013. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. FOR THE SAKE OF CONVENIENCE, ALL THESE APPEALS ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2. IN ITA NO.723/PN/2013 FOR A.Y.2007-08, THE ASSES SEE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS. 1] THE LEARNED CIT(A) ERRED IN DENYING THE DEDUCTI ON U/S 80 IB(10) IN RESPECT OF THE PROFITS DERIVED FROM HO USING PROJECTS - DSK SUNDARBAN AND DSK VISHWA PHASE-V MEGHMALHAR PHASE-I WITHOUT APPRECIATING THAT ALL TH E CONDITIONS LAID DOWN U/S 80IB(10) WERE COMPLIED BY THE ASSESSEE AND HENCE, THERE WAS NO REASON TO DENY THE DEDUCTION U/S 80IB(10) IN RESPECT OF PROFITS DERIVE D FROM THE ABOVE REFERRED PROJECTS. 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE APP ELLANT WAS NOT ENTITLED TO CLAIM DEDUCTION U/S 80IB(10) OF RS. 3,51,55,308/- IN RESPECT OF THE PROFITS DERIVED FRO M THE HOUSING PROJECT - DSK SUNDARBAN ON THE GROUND THAT THE COMMERCIAL AREA IN THE SAID PROJECT EXCEEDED TH E LIMIT PRESCRIBED IN SECTION 80IB(10) AND THEREFORE, THE DEDUCTION WAS NOT AVAILABLE TO THE APPELLANT. 2.1] THE LEARNED CIT(A) ERRED IN HOLDING THAT - A. AS THERE WAS A CONSOLIDATED APPROVAL AND COMMON LAY OUT PLAN IN RESPECT OF THE RESIDENTIAL AND AMENITY AREA , FOR THE PURPOSES OF SECTION 80IB(10), THE PROJECT INCLUDED BOTH RESIDENTIAL AND COMMERCIAL AREA AND HENCE, THE DEDU CTION WAS NOT AVAILABLE TO THE ASSESSEE. B. THE AREA OF COMMERCIAL ESTABLISHMENTS IN THE FORM O F AMENITY SPACE EXCEEDED THE MAXIMUM LIMIT FOR COMMER CIAL AREA PRESCRIBED UNDER THE PROVISIONS OF SECTION 80I B(10)(D) AND HENCE, THE DEDUCTION U/S 80IB(10) WAS NOT ALLOW ABLE IN RESPECT OF THE PROFITS DERIVED FROM THE SAID HOU SING PROJECT. 3] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT TH E AMENITY SPACE - I AND AMENITY SPACE - II WERE INDEPENDENT P ROJECTS AND NOT PART OF THE RESIDENTIAL PROJECT CONSTRUCTED BY THE ASSESSEE AND HENCE, THERE WAS NO REASON TO DENY THE DEDUCTION U/S 80IB(10). ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 3.1] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT THE ASSESSEE WAS UNDER AN OBLIGATION AS PER THE DEVELOP MENT CONTROL REGULATIONS TO DEVELOP AMENITY SPACE - I AN D AMENITY SPACE - II FOR THE PURPOSES OF GENERAL PUBL IC UTILITY AND HENCE, THE SAME WERE DEVELOPED INDEPENDENTLY OF THE HOUSING PROJECT- DSK SUNDARBAN AND THEREFORE, THERE WAS NO REASON TO DENY THE DEDUCTION U/S 80IB( 10) OF THE ACT IN RESPECT OF THE ABOVE PROJECT. 4] THE LEARNED CIT(A) ERRED IN DENYING THE DEDUCTI ON U/S 80IB(10) OF RS.5,29,73,817/- IN RESPECT OF THE PROF ITS DERIVED FROM THE HOUSING PROJECT - MEGHMALHAR PHASE -1. 5] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE PRO JECTS MEGHMALHAR PHASE - I AND MEGHMALHAR PHASE - II WERE ONE INTEGRATED HOUSING PROJECT AND HENCE, SINCE THE ASS ESSEE HAD NOT COMPLETED THE CONSTRUCTION OF MEGHMALHAR PH ASE - II PROJECT, THE DEDUCTION U/S 80IB(10) WAS NOT ALLO WABLE TO THE ASSESSEE. 6] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THA T MEGHMALHAR PHASE - I AND MEGHMALHAR PHASE - II CONS ISTED OF TWO SEPARATE PROJECTS AND SINCE ALL THE CONDITIO NS LAID DOWN U/S 80IB(10) WERE SATISFIED IN RESPECT OF THE PROJECT MEGHMALHAR PHASE I, THE DEDUCTION U/S 80IB(10) COUL D NOT BE DENIED IN RESPECT OF THE SAID PROJECT. 6.1] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE A SSESSE SUBMITS THAT THE BUILDING NOS. C,D,E,F,K,L,M,N,R,S, T,U,V AND W COMPRISING THE MEGHMALHAR PHASE - I WERE CONSTRUCTED ON A LAND AREA OF MORE THAN 1 ACRE AND SINCE, THESE BUILDINGS INDEPENDENTLY SATISFIED ALL THE CON DITIONS LAID DOWN U/S 80IB(10) OF THE ACT, THERE WAS NO REA SON TO DENY THE DEDUCTION U/S 80IB(10) IN RESPECT OF THE P ROFITS DERIVED FROM THE ABOVE BUILDINGS. 7] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, ASSUMING WITHOUT ADMITTING THAT THE ASSESSEE HAD NOT COMPLIED WITH T HE VARIOUS CONDITIONS LAID DOWN IN SECTION 80IB(10), T HE DEDUCTION SHOULD HAVE BEEN ALLOWED ON A PROPORTIONA TE BASIS IN RESPECT OF THE PART OF THE PROJECT COMPLYI NG WITH THE CONDITIONS LAID DOWN IN SECTION 80IB(10). 8] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 2. THE ASSESSEE D.S. KULKARNI DEVELOPERS LTD. IS A PUBLIC LIMITED COMPANY, ENGAGED IN THE BUSINESS OF DEVELOPMENT OF LANDS, CONSTRUCTIONS OF THE BUILDINGS / TENEMENTS AND SELL THEREOF. THE ISSUES BEFORE US ARE WITH REGARD TO DEDUCTION IN RE SPECT OF PROJECTS DSK SUNDERBAN, DSK VISHWA PHASE-V (MEGHMALLAR). 2.1 THE FIRST ISSUE IN ASSESSEES APPEALS IS WITH R EGARD TO THE CLAIM OF DEDUCTION U/S.80IB(10) OF THE I.T. ACT IN RESPECT OF PROFITS DERIVED FROM DSK SUNDERBAN. THIS PROJECT OF ASSESS EE LOCATED AT HADAPSAR, PUNE WAS DISALLOWED BY THE ASSESSING OFFI CER IN VIEW OF THE SPECIFIC PROVISIONS OF SECTION 80IB(10) OF THE ACT. THE ASSESSING OFFICER CONSIDERED THE VARIOUS SUBMISSION S MADE ON BEHALF OF ASSESSEE DURING THE ASSESSMENT PROCEEDING S FROM TIME TO TIME AND REJECTED THE CLAIM OF THE ASSESSEE FOR A.Y . 2007-08 AND THE SAME WAS FOLLOWED FOR A.YS.2008-09 AND 2009-10. IN APPEAL, THE CIT(A) CONFIRMED THE SAME. THE STAND OF THE AS SESSEE HAS BEEN THAT THE HOUSING PROJECT IS AN INDEPENDENT OF AMENI TY SPACE PROVIDED IN DSK SUNDARBAN IN ACCORDANCE WITH THE EX ISTING D.S. RULES. IN VIEW OF ABOVE, APPROVAL OF THE COLLECTOR , PUNE WHO IS THE APPROPRIATE AUTHORITY OF NA PERMISSION AS WELL AS B UILDING PERMISSION VIDE PMH/MASR 263/2005 DATED 06.03.2006 WAS EXAMINED BY THE CIT(A). THE APPROVAL SANCTIONED BY THE COLLECTOR, PUNE FOR NA AS WELL AS THE BUILDING IS BEING REFERR ED BELOW FOR READY REFERENCE WHICH IS PLACED ON PAGE 22 TO 28 OF PAPER BOOK FILED BY THE ASSESSEE ALONG WITH ENGLISH TRANSACTIO NS. SUBJECT: NON AGRICULTURE PERMISSION FOR RESIDENTIA L AND CONSTRUCTION PURPOSE. FOR GRANT OF NON AGRICULTURE PERMISSION FOR AREA OF 47323-09 SQ. MT. BEING PART OF TOTAL AREA OF 50525-00 SQ. MT . OF SURVEY NOS. 173, 174 & 175 AT VILLAGE HADAPSAR, TAL. HAVEL I. MRS. HEMANTI DEEPAK KULKARNI, POWER OF ATTORNEY HOL DER ON BEHALF OF SHRI GANPAT HARI TUPE AND OTHERS. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. ORDER MRS. HEMANTI DEEPAK KULKARNI, POWER OF ATTORNEY HOL DER, ON BEHALF OF SHRI GANPAT HARI TUPE AND OTHERS, HAS REQ UESTED, VIDE HER APPLICATION DATED 27/05/2005, TO GRANT NON - AGRICULTURAL PERMISSION FOR AREA OF 47323-09 SQ. MT . BEING PART OF TOTAL AREA OF 50525-00 SQ. MT. FROM SURVEY NOS. 173, 174, 175 AT VILLAGE HADAPSAR, TAL. HAVELI, FOR RESI DENTIAL USE. TOTAL AREA OF 50525.00 SQ. MTS. : DETAILED BELOW IS OWNED BY SHRI GANPAT HAN TUPE AND OTHERS :- SURVEY NO. AREA (IN SQ. MIS.) 173/5 4300.00 173/8B 1828.18 173/9 1555.76 174/1A 5000.00 174/1B 2970.00 174/2A 5900.00 174/2B 6100.00 174/2C 300.00 174/3A 6900.00 174/3B 6100.00 175/2/1 300.00 175/2/2 4500.00 173/10 1569.15 MRS HEMANTI DEEPAK KULKARNI HAS MADE A REQUEST APPLICATION AS POWER OF ATTORNEY HOLDER ON BEHALF O F SHRI GAN PAT HARI TUPE AND OTHERS TO GRANT NON AGRICULTURE P ERMISSION FOR AREA OF 47323.09 SQ. MTS. FOR RESIDENTIAL USE O UT OF THE TOTAL AREA OF 50525.00 SQ. MTS. AS THE AREA IS BEYO ND THE LIMITS OF PUNE MUNICIPAL CORPORATION, THE DRAWINGS AND CONSTRUCTION PLANS WERE SENT TO THE DY. DIRECTOR, T OWN PLANNING, PUNE FOR VERIFICATION. THE DY. DIRECTOR, TOWN PLANNING, VIDE HIS LETTER NO. DRWING/NABP/VILLAGE H ADAPSAR/ TAL. HAVEL/SURVEY NO.173, 174,175/SSP/173 DATED 19/01/2006, HAS ADVISED THAT USE OF THE AREA AS MEN TIONED BY THE APPLICANT IS ADMISSIBLE AND HAS RECOMMENDED FOR APPROVAL OF THE PROPOSED CONSTRUCTION PLANS. IN HI S RECOMMENDATIONS, HE HAS STATED THAT AREA UNDER REFE RENCE IS PART OF THE RESIDENTIAL ZONE AND IS AFFECTED PARTLY BY A ROAD OF WIDTH OF 18.00 MTS., UNDER REGIONAL PLANNING SCHEME . DRAWINGS OF THIS REGIONAL' PLANNING SCHEME ROAD HAV ING WIDTH OF 18.00 MTS., AS SHOWN IN THE MAP ARE NORMALLY APPROPRIATE AND, THEREFORE, USE OF THE UNAFFECTED A REA FOR RESIDENTIAL PURPOSE IS ADMISSIBLE. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. THE APPLICANT HAS SUBMITTED AFFIDAVIT AND INDEMNITY BOND IN THE PRESCRIBED FORMATS AS PROVIDED IN CIRCULAR NO. MH- 2/LAND/GENERAL RR/772/03 DATED 22/9/2003 OF HON. DIVISIONAL COMMISSIONER, PUNE. THE APPLICANT, IN TH E SAID AFFIDAVIT, HAS MENTIONED THAT PROVISIONS OF BELOW M ENTIONED ACTS ARE NOT THE VIOLATED WITH RESPECT TO THE AREA/ LAND UNDER REFERENCE. - 1) MUMBAI TENANCY & AGRICULTURAL LAND ACT, 1948 AND IT S RULES. 2) MAHARASHTRA LAND REVENUE CODE, 1996. 3) MAHARASHTRA AGRICULTURAL LANDS (CEILING ON HOLDINGS ) ACT, 1961, 4) VARIOUS ACTS RELATED TO ABOLITION OF INAMI LANDS/TE BYRES, 5)THE BOMBAY PREVENTION AND CONSOLIDATION OF HOLDIN GS ACT, 1947. 6) MAHARASHTRA RESTORATION OF LANDS TO SCHEDULED TR IBES ACT, 1974. 7) PRIVATE FORESTS ACQUISITION ACT, MAHARASHTRA 1975. 8) THE URBAN LAND (CEILING & REGULATIONS) ACT, 1976. PROJECT AFFECTED PERSONS REHABILITATION ACT MAHARAS HTRA, 1986. MENTION OF NON-VIOLATION OF PROVISIONS OF ANY OF TH E ABOVEMENTIONED ACTS AND THAT OF SAID LAND IS NOT UN DER CATEGORY OF OCCUPIERS CLASS-2 IN THE AFFIDAVIT. ACCORDINGLY, AS PER THE REQUEST APPLICATION OF THE APPLICANT AND RECOMMENDATIONS OF THE DY. DIRECTOR, TOWN PLANN ING, PUNE I, THE COLLECTOR OF PUNE, GRANT PERMISSION TO USE BELOW MENTIONED LAND FOR NON-AGRICULTURAL AND CONSTRUCTIO N PURPOSE SUBJECT TO FOLLOWING TERMS AND CONDITIONS : - DETAILS OF LAND:- SURVEY NO. AREA (IN SQ. MIS.) 173/5 4300.00 173/8B 1828.18 173/9 1555.76 174/1A 5000.00 174/1B 2970.00 174/2A 5900.00 174/2B 6100.00 174/2C 300.00 174/3A 6900.00 174/3B 6100.00 175/2/1 300.00 ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 175/2/2 4500.00 173/10 1569.15 AREA OF 47323.09 SQ. MTS. OUT OF TOTAL AREA OF 5052 5.00 SQ. MTS. 1) THE APPLICANT HAS DEPOSITED RS.9,02,356/- WITH S TATE BANK OF INDIA BY CHALLAN, A COPY OF WHICH IS SUBMITTED, TOWARDS NON-AGRI. TAX AND CESS AT THE RATE OF RS.1-362 FOR AREA OF 47323.09 SQ.MTS. OUT OF AREA OF 50525.00 SQ. MTS. T HIS ASSESSMENT IS OF TEMPORARY NATURE AND REASSESSMENT WILL BE MADE WHEN THE GOVT. FIXES REVISED RATES AND AMOUNT OF DIFFERENCE, IF ANY, WOULD BE RECOVERED AT THAT TIME , ALSO, IT IS BINDING UPON THE APPLICANT TO THE AMOUNT AS DECIDED BY THE GOVT. THE APPLICANT HAS DEPOSITED RS.3500/- WITH ST ATE BANK OF INDIA VIDE CHALLAN NO.102, DATED 28/2/2006 TOWAR DS FEES FOR MEASUREMENTS TO BE TAKEN AFTER RECEIPT OF NON-A GRI. PERMISSION AS PER RULES. 2) PLOT / BUILDINGS SHOWN IN LAYOUT SHOULD BE USED FOR RESIDENTIAL PURPOSE AS ALSO FOR REASONS APPLICABLE TO RESIDENTIAL ZONES MENTIONED IN REGULATIONS PRESENTL Y IN FORCE. 3) BEFORE STARTING ANY DEVELOPMENT WORK ON THE PLOT , THE LAYOUT SHOULD BE MARKED ON THE PLOT AND SHOULD BE G OT CERTIFIED FROM LAND RECORDS DEPT. MINIMUM AREA OF T HE PLOT AFTER MARKING OF LAYOUT SHOULD NOT BE LESS THAN THA T SHOWN IN THE MAP. ALSO WIDTH OF ROADS, AREAS OF PLACES OF AM ENITIES, VACANT PLOTS SHOULD NOT BE LESS THAN THAT SHOWN IN APPROVED LAYOUT. IF ANY ALTERATIONS ARE FOUND IN AREA THE L AYOUT SHOULD BE REAPPROVED. NO DEVELOPMENT WORK BE UNDERTAKEN BE FORE SUBMITTING COPY OF APPROVED LAYOUT AND OBTAINING FI NAL SANCTION. 4) THE APPLICANT SHOULD DEVELOP ROADS, GUTTERS, AME NITY PLACES AS SHOWN IN LAYOUT SATISFACTORILY AND BY INC URRING HIS OWN EXPENSES BEFORE DISTRIBUTION OF PLOTS. 5) MAINTENANCE OF ROADS, AMENITY PLACES AND OPEN PL OTS SHOULD BE DONE BY THE APPLICANT OR THESE SHOULD BE ENTRUSTED TO THE APPROPRIATE AUTHORITY. THESE PLACES AND ROAD S SHOULD BE FREE FOR USE OF MASSES AND ROADS SHOULD BE FREE FOR USE OF NEIGHBORING LAND OWNER. 6) WATER SUPPLY AND DRAINAGE SYSTEM SHOULD BE SATIS FACTORILY PROVIDED BY THE APPLICANT AT HIS OWN EXPENSES. 7) THE APPLICANT WILL BE RESPONSIBLE FOR ANY DISPUT E REGARDING OWNERSHIP, LIMITS, CUSTOMS. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 8) STRUCTURAL ENGINEER SHOULD BE APPOINTED FOR DEVE LOPMENT WORK OF THE AREA AND APPLICANT SHOULD OBTAIN CERTIF ICATE REGARDING STRUCTURAL STABILITY. 9) FULFILLMENT OF FACTORS AS MENTIONED IN RULE NO.6 .2.6.1. OF 'A' CLASS REGULATIONS AND IMPLEMENTATION OF MEASURE S FOR PREVENTION OF FIRE AS PER APPENDIX P WITH APPROVA L OF FIRE ADVISOR TO THE GOVT. OF MAHARASHTRA SHOULD BE DONE BY THE APPLICANT AT HIS OWN EXPENSES AND ON HIS OWN RESPON SIBILITY. 10) THE APPLICANT SHOULD PROVIDE LIFT FACILITY AS P ER RULE NO. 18.1 OF 'A'' CLASS REGULATIONS. 11) PROVISIONS LIKE NECESSARY WATER SUPPLY FOR SAID DEVELOPMENT (INCLUDING FOR FIRE PREVENTION SYSTEM I N ADDITION TO REGULAR USE), SYSTEM FOR WATER FLOW, (DRAINAGE S YSTEM, GARBAGE DISPOSAL ETC. SHOULD BE DONE BY THE APPLICA NT AT HIS OWN EXPENSES AND AT HIS OWN RESPONSIBILITY. 12) USE OF THE SAID AREA SHOULD BE DONE ONLY FOR RE SIDENCES AND SHOPS AND CONSTRUCTION SHOULD BE AS PER APPROVE D LAYOUT. 13) FRONT, BACK AND SIDE MARGINS FROM PROPOSED CONS TRUCTION SHOULD ACTUALLY BE IN EXISTENCE AS SHOWN IN MAP OF THE AREA AND THE SPACE FOR THESE MARGIN SHOULD ALWAYS BE KEP T OPEN. 14) AREA OF PROPOSED CONSTRUCTION INCLUDING EXISTIN G CONSTRUCTION ON THE PLOT SHOULD BE UP TO THE MAXIMU M AS SHOWN IN APPROVED LAYOUT. 15) NUMBER OF FLOORS IN PROPOSED CONSTRUCTION SHOUL D NOT EXCEED PARKING+7 AS SHOWN IN LAYOUT. 16) NECESSARY WATER SUPPLY, DRAINAGE AND SEWAGE SYS TEM FOR THE PROPOSED BUILDINGS SHOULD BE PROVIDED BY THE AP PLICANT BEFORE USE OF THESE BUILDINGS IF THESE ARE NOT PROV IDED EARLIER. 17) PRIOR APPROVAL SHOULD BE OBTAINED IF CHANGES AR E TO BE MADE IN APPROVED LAYOUT OR IN USE OF CONSTRUCTION. 18) AREA OF WINDOWS FOR LIGHT AND VENTILATION SHOUL D NOT BE LESS THAN 1/8 TH OF AREA OF THAT ROOM. 19) THE APPLICANT /OWNER WOULD BE RESPONSIBLE FOR A NY BREACH OF CUSTOMS OF ANY PERSON. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 20) SINCE BUILDINGS ON PLOTS NOS. C AND E ARE ON TH E PROPOSED ROAD UNDER REGIONAL PLAN, PROVISION, OF OFFICIAL AP PROACH ROAD FROM THE ABOVE ROAD UP TO THE SIGHT SHOULD BE MADE. 21) BUILDING BUILT ON PUBLIC UTILITY SPACE SHOULD U SED FOR PUBLIC UTILITIES ONLY. ALSO USE OF CLUB HOUSE IN VA CANT SPACE SHOULD BE MADE OPENLY FOR ALL RESIDENTS OF THE SOCI ETY. 22) THE PERMISSION UNDER REFERENCE WOULD BE TREATED AS CANCELLED IF ANY INFORMATION SUBMITTED BY THE APPLI CANT/ ANY FACT MENTIONED IN AFFIDAVIT/ ANY PAPERS, DOCUMENTS SUBMITTED BY THE APPLICANT IS/ARE FOUND WRONG OR MISLEADING OR BREACH OF ANY ONE OR MORE CONDITIONS STIPULATED ABOVE. 2.2 THUS, THE COLLECTOR HAS GRANTED PERMISSION TO T HE ASSESSEE TO CONVERT 47323 SQ.MTR. OUT OF TOTAL LAND ACQUIRED / PURCHASED BY THE ASSESSEE OF 50525 SQ.MTRS. FOR NON-AGRICULTURAL (NA) USE IN MAUJE HADAPSAR AREA. THE SANCTION OF THE COLLECTOR PUNE FOR THE NON AGRICULTURAL USE AND PERMISSION FOR CONSTRUCTIO N OF BUILDING WAS SUBJECT TO CERTAIN CONDITIONS AS STIPULATED ABO VE. ACCORDING TO THE CIT(A), AS PER CLAUSE 12 THE USE OF THE LAND HA S BEEN PERMITTED FOR RESIDENTIAL AS WELL AS FOR SHOPS. CLAUSE 13 PR OVIDES THAT THE DEVELOPER PROVIDES THE OPEN SPACES AT THE ADJOINING SIDES AND FRONT AND BACK AREA OF THE BUILDINGS TO BE CONSTRUCTED. CLAUSE 21 PROVIDES THAT A CLUB HOUSE SHOULD BE PROVIDED FOR T HE USE OF THE RESIDENTS OF THE HOUSING SOCIETY AS WELL AS THE GEN ERAL PUBLIC. IN PURSUANCE OF THE SAID APPROVAL, SEPARATE PLAN WAS A PPROVED BY THE TOWN PLANNING DEPARTMENT AND COLLECTOR PUNE FOR DEV ELOPMENT OF TWO AMENITY SPACES ADMEASURING 2053.24 SQ.MTR AND 2 850.77 SQ.MTRS., NAMED AMENITY SPACES 1 AND 2 RESPECTIVELY . SIMILARLY, OPEN SPACES 1 AND 2 ADMEASURING 1673.71 SQ.MTRS. AN D 1595.67 SQ.MTRS. RESPECTIVELY WERE ALSO APPROVED BY THE TOW N PLANNING DEPARTMENT AND COLLECTOR PUNE. THIS IS AS PER THE LAYOUT PLAN SUBMITTED AS DISCUSSED ABOVE. THE CLUB HOUSE WAS P ROVIDED IN BOTH THE OPEN SPACES. THE ASSESSEE HAS SUBMITTED T HAT THE ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. BALANCE AREA ADMEASURING 24520.05 SQ.MTRS. WAS UTIL IZED FOR THE CONSTRUCTION OF RESIDENTIAL PROJECT AND THAT THE AM ENITY SPACE WAS, LATER ON INDEPENDENTLY DEVELOPED. THE ASSESSING OF FICER HAS THUS TOUCHED UPON THIS ASPECT RELATING TO CONSTRUCTION O F SHOPS, GYM AND MULTI-PURPOSE HALL IN THE ASSESSMENT ORDER WHIC H IS MUCH IN EXCESS OF THE 2000 SQ. FT. BUILT UP AREA OF COMMERC IAL SPACE WHICH IS PROVIDED / ALLOWED U/S. 80IB(10)(D) OF THE ACT. THE ASSESSING OFFICER HAS NOTED THAT THE ASSESSEE ITSELF SHOWED T HE SHOPS AVAILABLE FOR SALE IN ITS WEBSITE WHICH GOES TO SHO W THAT THE ASSESSEE HIMSELF TREATED THE SAME AS PART OF THE HO USING PROJECT. 2.3 FROM THE PERMISSION GIVEN BY THE COLLECTOR FOR NA AND CONSTRUCTION IT WAS SEEN THAT THE SANCTION ITSELF I S FOR MIXED USE I.E. BOTH RESIDENTIAL AND COMMERCIAL. THEREFORE, T HE PERMISSION GIVEN FOR CONSTRUCTING THE HOUSES WAS SEEN TO BE IN TRINSICALLY LINKED TO THE SANCTION RECEIVED BY THE ASSESSEE FOR COMMERCIAL USE SHOPS, AMENITIES ETC. REGARDING CONTENTION OF THE ASSESSEE THAT THERE WAS A COMPOUND WALL SEPARATING THE HOUSING PR OJECT AND AMENITIES SPACES, AND THAT THERE WERE SEPARATE CONV EYANCE DEEDS FOR HOUSING SOCIETIES AND AMENITIES ARE SEEN TO HAV E NO BEARING ON ISSUE IN HAND AS OBSERVED BY THE CIT(A). SECTION 8 0IB(10)(D) TALKS OF THE RESTRICTION PLACED ON THE BUILT UP AREA OF S HOPS AND OTHER COMMERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING P ROJECTS. IN THE PRESENT CASE, SINCE IT WAS FOUND THAT THE SHOP AND OTHER COMMERCIAL ESTABLISHMENTS SANCTIONED BY THE COLLECT OR VIDE HIS APPROVAL DATED 06.03.2006 WAS A CONSOLIDATED APPROV AL AND THE LAYOUT PLANS HAD ACCORDINGLY, BEEN SANCTIONED FOR T HE OPEN AND AMENITY SPACES, THE PROJECT WAS FOUND TO BE HIT BY THE PROVISIONS OF SEC. 80IB(10)(D). ACCORDINGLY, THE ASSESSEES APPE AL ON THIS GROUND WAS DISMISSED BY THE CIT(A). ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 2.4 BEFORE US THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT THE CIT(A) ERRED IN HOLDING THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM DEDUCTION U/S 80IB(10) OF RS. 3,51,55,308/- IN RESPECT OF THE PROFITS DERIVED FROM THE HOUSING PROJECT - DSK SUNDARBAN ON THE GROUND THAT THE COMMERCIAL AREA IN THE SAID PROJECT EXCEEDED THE LIMIT PRESCRIBED IN SECTION 80 IB(10) AND THEREFORE, THE DEDUCTION WAS NOT AVAILABLE TO THE A SSESSEE. THE CIT(A) ERRED IN HOLDING THAT AS THERE WAS A CONSOLI DATED APPROVAL AND COMMON LAYOUT PLAN IN RESPECT OF THE RESIDENTIA L AND AMENITY AREA, FOR THE PURPOSES OF SECTION 80IB(10), THE PRO JECT INCLUDED BOTH RESIDENTIAL AND COMMERCIAL AREA AND HENCE, THE DEDUCTION WAS NOT AVAILABLE TO THE ASSESSEE. THE CIT(A) ERRE D IN HOLDING THAT AREA OF COMMERCIAL ESTABLISHMENTS IN THE FORM OF AM ENITY SPACE EXCEEDED THE MAXIMUM LIMIT FOR COMMERCIAL AREA PRES CRIBED UNDER THE PROVISIONS OF SECTION 80IB(10)(D) AND HENCE, TH E DEDUCTION U/S 80IB(10) WAS NOT ALLOWABLE IN RESPECT OF THE PROFIT S DERIVED FROM THE SAID HOUSING PROJECT. THE CIT(A) FAILED TO APP RECIATE THAT THE AMENITY SPACE-I AND AMENITY SPACE - II WERE INDEPEN DENT PROJECTS AND NOT PART OF THE RESIDENTIAL PROJECT CONSTRUCTED BY THE ASSESSEE AND HENCE, THERE WAS NO REASON TO DENY THE DEDUCTIO N U/S 80IB(10). THE CIT(A) ERRED IN NOT APPRECIATING THA T THE ASSESSEE WAS UNDER AN OBLIGATION AS PER THE DEVELOPMENT CONT ROL REGULATIONS TO DEVELOP AMENITY SPACE - I AND AMENIT Y SPACE - II FOR THE PURPOSES OF GENERAL PUBLIC UTILITY AND HENCE, T HE SAME WERE DEVELOPED INDEPENDENTLY OF THE HOUSING PROJECT - DS K SUNDARBAN. FOR THIS PROPOSITION HE DREW OUR ATTENTION TO THE V ARIOUS PAGES OF PAPER BOOK HAVING DIFFERENT SITE PLAN TO ESTABLISH THAT THE RESIDENTIAL PROJECT WAS INDEPENDENT OF AMENITY PROJ ECT AND IT WAS ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. FO R THIS PROPOSITION, HE ALSO DREW OUR ATTENTION WHICH IS BEING DEALT IN THE FOLLOWING PARAS. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT THE CIT(A) WAS JU STIFIED IN ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. DENYING DEDUCTION U/S.80IB(10) IN RESPECT OF PROFIT S DERIVED FROM DSK SUNDERBAN BECAUSE ALL CONDITIONS LAID DOWN IN T HE SAID SECTION WERE NOT COMPLIED WITH BY THE ASSESSEE. TH E CIT(A) HAD RIGHTLY HELD THAT THE ASSESSEE WAS NOT ENTITLED TO CLAIM DEDUCTION IN RESPECT OF PROFITS DERIVED FROM HOUSING PROJECT OF DSK SUNDERBAN ON THE GROUND THAT THE COMMERCIAL AREA IN THE SAID PROJECT EXCEEDED THE LIMIT PRESCRIBED U/S.80IB(10), THEREFORE, THE DEDUCTION WAS RIGHTLY REJECTED. AS THERE WAS A CON SOLIDATED APPROVAL AND COMMON LAYOUT PLAN IN RESPECT OF THE R ESIDENTIAL AND AMENITY AREA, FOR THE PURPOSES OF SECTION 80IB(10), THE PROJECT INCLUDED BOTH RESIDENTIAL AND COMMERCIAL AREA AND H ENCE, THE DEDUCTION WAS NOT AVAILABLE TO THE ASSESSEE AND THE SAME HAS RIGHTLY BEEN DENIED TO THE ASSESSEE. THE AREA OF C OMMERCIAL ESTABLISHMENTS IN THE FORM OF AMENITY SPACE EXCEEDE D THE MAXIMUM LIMIT FOR COMMERCIAL AREA PRESCRIBED UNDER THE PROVISIONS OF SECTION 80IB(10)(D) AND HENCE, THE DE DUCTION U/S 80IB(10) WAS NOT ALLOWABLE IN RESPECT OF THE PROFIT S DERIVED FROM THE SAID HOUSING PROJECT. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS ALSO SUBMITTED THAT THE AMENITY SPACE-I AND AME NITY SPACE - II WERE NOT INDEPENDENT PROJECTS AND PART OF THE RE SIDENTIAL PROJECT CONSTRUCTED BY THE ASSESSEE AND HENCE, THERE WAS JU STIFICATION TO DENY THE DEDUCTION U/S 80IB(10). EVEN IF THE ASSES SEE WAS UNDER AN OBLIGATION AS PER THE DEVELOPMENT CONTROL REGULA TIONS TO DEVELOP AMENITY SPACE - I AND AMENITY SPACE - II FO R THE PURPOSES OF GENERAL PUBLIC UTILITY AND HENCE, THE SAME WERE DEVELOPED TOGETHER AS PART OF THE HOUSING PROJECT - DSK SUNDA RBAN, THEREFORE, THE AUTHORITIES BELOW WERE JUSTIFIED IN DENYING THE DEDUCTION TO THE ASSESSEE. 2.5 AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND M ATERIAL ON RECORD, WE FIND THAT THE ISSUE BEFORE US IS WITH RE GARD TO THE CLAIM U/S.80IB(10) OF THE ACT IN RESPECT OF DSK SUNDERBAN . IN THIS YEAR, ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. THE ASSESSEE HAS CLAIMED DEDUCTION U/S.80IB(10) OF RS. 3,51,55,308/- IN RESPECT OF THE PROFITS DERIVED FRO M THE HOUSING PROJECT DSK SUNDARBAN. AS STATED ABOVE, THE SAID P ROJECT IS SITUATED IN THE REVENUE ESTATE OF HADAPSAR, PUNE. THE SAID LAND WAS BEYOND THE LIMITS OF PUNE MUNICIPAL CORPORATION . THE COLLECTOR HAD GIVEN SANCTION FOR THE SAID PROJECT A ND THE N.A. ORDER WAS PASSED ON 06.03.2006 AS DISCUSSED ABOVE. THE AS SESSEE HAS CONSTRUCTED A RESIDENTIAL PROJECT NAMED DSK SUNDARB AN COMPRISING OF BUILDINGS A TO H. THE TOTAL PLOT ARE A OF THE RESIDENTIAL PROJECT IS 24,520.05 SQ. MTRS. THE STA ND OF THE ASSESSEE HAS BEEN THAT IT HAS CONSTRUCTED A RESIDENTIAL PROJ ECT AND THE SAME IS ELIGIBLE FOR DEDUCTION U/S80IB(10) OF THE ACT. THE ASSESSING OFFICER HAS NOT ACCEPTED THE CONTENTION OF THE ASSE SSEE IN THIS REGARD. ACCORDING TO HIM, THE COLLECTOR HAD GIVEN SANCTION FOR DEVELOPMENT OF PLOT 'A' WHICH INCLUDES AMENITY SPAC E OF 4904.01 SQ. MTRS. ACCORDING TO REVENUE AUTHORITIES, THE AME NITY SPACE IS PART OF THE PROJECT CONSTRUCTED BY THE ASSESSEE AND THEREFORE, THE ASSESSING OFFICER HAS STATED THAT THE COMMERCIAL AR EA HAS EXCEEDED THE LIMIT SPECIFIED IN SECTION 80IB(10). THE ASSES SING OFFICER REFERS TO THE MASTER LAY OUT WHEREIN THE AMENITY SPACE WAS INCLUDED IN THE SAME LAY OUT. HE ALSO REFERS TO THE FACT THAT THE ASSESSEE HAS SHOWN SHOPS AVAILABLE IN THE PROJECT DSK SUNDARBAN. CONSIDERING THE ABOVE FACTS, THE ASSESSING OFFICER HAS HELD THA T THE COMMERCIAL AREA INCLUDED IN THE SAID PROJECT EXCEEDED MORE THA N 2000 SQ. FT. AND THEREFORE, THE ASSESSEE WAS NOT ENTITLED TO CLA IM DEDUCTION U/S 80IB(10). THE CIT(A) HAS CONFIRMED THE ORDER OF TH E ASSESSING OFFICER. THE CIT(A) REFERS TO THE ORDER OF THE COL LECTOR, PUNE GRANTING N.A. PERMISSION. ACCORDING TO THE CIT(A), THE COLLECTOR HAS GRANTED PERMISSION TO THE ASSESSEE TO CONVERT 47,32 3 SQ. MTRS. OUT OF THE TOTAL LAND OF 50525 SQ. MTRS FOR NON AGRICUL TURAL USE. THE CIT(A) HAS STATED THAT THE SANCTION OF THE COLLECTO R IS FOR NON AGRICULTURAL USE AND PERMISSION FOR CONSTRUCTION OF BUILDINGS WAS ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. SUBJECT TO CERTAIN CONDITIONS. THE CIT(A) REFERS T O CLAUSE 12 OF THE SANCTION GRANTED WHEREIN IT WAS MENTIONED THAT THE USE OF LAND IS PERMITTED FOR CONSTRUCTION OF RESIDENTIAL BUILDINGS AND SHOPS. THE CIT(A) HAS HELD THAT THE PERMISSION GIVEN BY COLLEC TOR IS FOR MIXED USE I.E. BOTH RESIDENTIAL AND COMMERCIAL CONSTRUCTI ON. ACCORDING TO THE CIT(A), THE PERMISSION FOR CONSTRUCTION OF R ESIDENTIAL HOUSES WAS INTRINSICALLY LINKED TO THE SANCTION RECEIVED B Y THE ASSESSEE FOR COMMERCIAL USE. THUS, THE CIT(A) HAS REJECTED THE C ONTENTION OF THE ASSESSEE AND HAS HELD THAT THE AMENITY AREA IS PART OF THE RESIDENTIAL PROJECT AND THEREFORE, THE ASSESSEE HAS VIOLATED THE CONDITION LAID DOWN IN SECTION 80IB(10). ACCORDING LY, THE CIT(A) HAS CONFIRMED THE DISALLOWANCE IN QUESTION. 2.5.1 WE FIND THAT THE STAND OF THE ASSESSEE HAS B EEN THAT IT OWNED TOTAL LAND OF 50,525 SQ. MTRS. OUT OF THE TOT AL LAND, THE COLLECTOR HAS GRANTED N.A. PERMISSION TO CONVERT LA ND ADMEASURING 47,323 SQ. MTRS. WHICH CONSISTS OF PLOTS A, B, C AN D E. A COPY OF THE N.A. PERMISSION DATED 06.03.2006 IS PLACED ON P AGES 22 - 28 OF THE PAPER BOOK FILED BY THE ASSESSEE. ON PERUSAL O F THE LAYOUT PLAN OF PLOT A, WE FIND THAT THE TOTAL AREA OF PLOT A IS 32,693.40 SQ. MTRS. THE COPY OF THE LAY OUT PLAN OF PLOT A IS P LACED ON PAGE 29. OUT OF THE TOTAL AREA, THE HOUSING PROJECT DSK SUND ARBAN COMPRISING OF BUILDINGS A TO H IS CONSTRUCTED ON AN AREA OF 24,520.05 SQ. MTRS. FURTHER, THE AMENITY SPACE I A ND II WAS CONSTRUCTED ON A TOTAL AREA OF 4914.01 SQ. MTS AS E VIDENT FROM THE LAY OUT. AS DISCUSSED ABOVE, THERE IS NO DISPUTE T HAT THE LAYOUT PLAN IS COMMON FOR BOTH. HOWEVER, THE BUILDING PLA NS OF THE RESIDENTIAL PROJECT I.E. BUILDINGS A TO H ARE SEPAR ATELY SANCTIONED. THE COPY OF THE SAID BUILDING PLAN IS PLACED ON PAG ES 30-31 OF THE PAPER BOOK FILED BY THE ASSESSEE. THE NET PLOT ARE A MENTIONED WHILE SANCTIONING THE PLAN IS 24,520.05 SQ. MTRS. A T WHICH BUILDINGS A TO H WERE CONCEIVED. THE BUILDING PLANS FOR THE ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. AMENITY SPACE WERE SANCTIONED SEPARATELY AND THE RE LEVANT PLANS ARE PLACED ON PAGES 32-35 OF THE PAPER BOOK FILED B Y THE ASSESSEE. IN THE SAID BUILDING PLAN OF THE AMENITY SPACE I, T HE PLOT AREA MENTIONED IS 2053.24 SQ. MTRS. AND IN THE BUILDING PLAN OF AMENITY SPACE II, THE PLOT AREA MENTIONED IS 2850.7 7 SQ. MTS. THUS, THE BUILDING PLANS OF THE RESIDENTIAL AND THE AMENITY SPACE ARE SANCTIONED SEPARATELY. THE CIT(A)S HARPINGS O N THE PERMISSION OF THE COLLECTOR IN ORDER TO JUSTIFY THAT, THE COLL ECTOR HAD GRANTED PERMISSION FOR USE OF LAND FOR RESIDENTIAL AND COMM ERCIAL PURPOSES. THIS IS NOT IN DISPUTE. THE ISSUE IS THAT THE PERM ISSION OF LAYOUT BY THE COLLECTOR IS FOR THE LAND ADMEASURING 47,323.09 SQ. MTRS AS STATED ABOVE. IT WAS A GENERAL PERMISSION GRANTING NON AGRICULTURAL USE FOR THE LAND AND THE SAME COULD NO T BE TERMED AS A SANCTION FOR CONSTRUCTING HOUSING PROJECT ON THE SAID LAND. THE BUILDING PLANS WERE SANCTIONED SEPARATELY FOR THE R ESIDENTIAL AND THE AMENITY SPACE. THE BUILDING PLAN FOR THE RESID ENTIAL PROJECT WING A SUNDERBAN IS PLACED ON PAGES 30 OF THE PAP ER BOOK. SIMILARLY FOR SANCTIONED PLANS IN RESPECT OF OTHER WINGS FOR EXAMPLE WING H ON PLOT A HAS BEEN PLACED ON PAGES 31 OF THE PAPER BOOK FILED BY THE ASSESSEE. THE AMENITY SPACE AND RESID ENTIAL PROJECT IN PLOT A WITH WINGS A TO H ARE SEPARATED BY COMPOUN D WALL. 2.5.2 CONSIDERING THE FACT THAT THE BUILDING PLANS WERE SEPARATELY SANCTIONED, THE ASSESSEE STATED THAT THE AMENITY SPACE CANNOT BE CONSIDERED AS PART OF THE RESIDENTIAL PRO JECT. THE PLOT AREA IN RESPECT OF THE BUILDING PLAN FOR THE AMENIT Y SPACE REFERS TO THE PLOT OF LAND ON WHICH THE AMENITY SPACE WAS CON STRUCTED AND NOT THE PLOT OF LAND ON WHICH THE RESIDENTIAL PROJE CT WAS CONSTRUCTED. CONSIDERING THE ABOVE FACTS, THE ASSES SEE STATED THAT THE AMENITY SPACE - I AND AMENITY SPACE - II ARE IN DEPENDENT PROJECTS AND NOT PART OF THE RESIDENTIAL PROJECT. THE ASSESSEE HAS CLAIMED THAT HE HAS PAID TAXES ON THE PROFITS ARISI NG ON SALE OF ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. AMENITY SPACE AND NO DEDUCTION U/S 80IB(10) HAS BEE N CLAIMED, WHICH IS NOT DISPUTED BY THE REVENUE AUTHORITIES. 2.5.3 THE FACTS EMERGED FROM THE ABOVE DISCUSSION THAT THERE IS NO DISPUTE WITH REGARD TO THE BUILDING PLANS FOR THE RESIDENTIAL AND AMENITY SPACE WERE SANCTIONED INDEPENDENTLY AS DISCUSSED ABOVE. THIS FACT HAS NOT BEEN DISPUTED BY THE LOWE R AUTHORITIES. HOWEVER, REVENUE AUTHORITIES HAVE DENIED THE DEDUCT ION ON THE GROUND THAT THERE WAS A COMMON LAYOUT PLAN. THERE IS A DIFFERENCE BETWEEN LAYOUT PLAN AND BUILDING PLAN. THE LAYOUT PLAN IS ONLY A CONCEPTUAL PLAN GIVING GENERAL IDEA OF THE DEVELOPM ENT OF THE LAND WHILE BUILDING PLANS ARE THE PLANS AS PER WHICH CON STRUCTION IS PERMITTED AS PER THE DETAILS SANCTIONED IN THE SAID PLAN. SINCE THE BUILDING PLAN WAS SANCTIONED INDEPENDENTLY FOR THE RESIDENTIAL AND AMENITY SPACE, SO THEY ARE INDEPENDENT OF EACH OTHE R. IF THERE IS A COMMON LAYOUT PLAN BUT INDEPENDENT BUILDING PLAN, T HE PROJECT APPROVED UNDER SEPARATE BUILDING PLAN IS TO BE CONS IDERED AS AN INDEPENDENT PROJECT AND NOT PART OF THE LARGER PROJ ECT. THIS VIEW IS FORTIFIED BY THE RATIO OF FOLLOWING DECISIONS: A. APPOORVA PROPERTIES AND ESTATES PVT. LTD. [ITA N O. 113/PN/07] B. ADITYA DEVELOPERS [ITA NO. 791 & 792/PN/08] C. ANKIT ENTERPRISES [ITA NO. 1146/PN/L0] D. BRIGADE ENTERPRISES PVT. LTD. [119 TTJ 269 (BANG )] E. P. V. MAHADKAR & ASSOCIATES [ITA NO. 1117/PN/L0] 2.5.4 WE ALSO FIND THAT PUNE BENCH IN THE CASE OF M/S. SHROFF DEVELOPERS VS. ITO IN ITA NO.754/PN/2010, WHEREIN B UILDING PLAN ON THE AMENITY SPACED HAS BEEN SANCTIONED SEPARATEL Y AS AN INDEPENDENT UNIT, HENCE OTHERWISE ALSO IT WAS TO BE TREATED AS INDEPENDENT PROJECT. THE ASSESSEE TOOK THE STAND T HAT HOUSING PROJECT DOES NOT MEAN THAT THERE SHOULD BE THE GROU P OF BUILDINGS ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. AND EVEN A SINGLE BUILDING MAY CONSTITUTE A HOUSING PROJECT. THE ASSESSING OFFICER DISALLOWED THE CLAIM ON THE GROUN D THAT THE COMMERCIAL AREA IN THE SAID PROJECT EXCEEDED 2000 S Q. FT. IN THAT CASE ALSO, THE COLLECTOR HAD SANCTIONED AMENITY SPA CE AND HAD CONTENDED THAT THE AMENITY SPACE WAS AN INDEPENDENT PROJECT. IN APPEAL, THE TRIBUNAL AFTER CONSIDERING THE FACTS HA S HELD THAT THE BUILDING PLAN FOR AMENITY SPACE WAS SANCTIONED SEPA RATELY AND THEREFORE, IT CONSTITUTES AN INDEPENDENT PROJECT AN D ACCORDINGLY, THE DEDUCTION WAS ALLOWED BY OBSERVING AS UNDER: 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PART IES AND PERUSED THE RECORD. THE MAIN PLANK OF THE ARGUMENT OF THE LD. COUNSEL IS THAT THE AMENITIES SPACE CANNOT BE EQUAT ED WITH COMMERCIAL SPACE AND EVEN IF ASSUMING IT IS A COMME RCIAL SPACE BUT STILL AS THE ASSESSEES PROJECT IS SANCTI ONED PRIOR TO 01-04-2005, THE LIMITATION PUT ON THE MAXIMUM COMME RCIAL AREA IN ANY HOUSING PROJECT IS NOT APPLICABLE TO TH E ASSESSEES PROJECT AS THE ORIGINAL LAY OUT AND BUILDINGS PLAN WERE FIRST SANCTIONED ON 14-06-2004. HE SUBMITS THAT AMENITIE S BUILDING WHICH IS SAID TO BE COMMERCIAL IS AN INDEP ENDENT BUILDING AND IS BUILT UP ON SPECIFIC MARKED AREA OF 1230 SQ. MTRS. WHICH IS AN INDEPENDENT PLOT CARVED OUT OF TH E TOTAL AREA OF 8200 SQ. MTRS. HE SUBMITS THAT INITIALLY THE PR OJECT WAS ON THE PLOT OF LAND OF 4300 SQ. MTRS. BUT SUBSEQUENTLY ADJOINING PLOT WAS ACQUIRED AND HENCE, THE SEPARATE DEMARCATI ON WAS MADE. HE RELIED ON THE DECISION OF THE HON'BLE HIG H COURT OF GUJARAT IN THE CASE OF MANAN CORPORATION VS. CIT 78 DTR 205 (GUJ) AND CIT VS. BRAHMA ASSOCIATES 333 ITR 289 (BO M). HE SUBMITS THAT ASSUMING WITHOUT GOING INTO CONTROVERS Y WHETHER IT IS A SINGLE PROJECT OR INDEPENDENT PROJECT OTHER WISE ALSO THE ASSESSEES PROJECT SANCTIONED PRIOR TO 01-04-2005, THE ASSESSEE IS NOT HIT BY THE DEFINITION OF THE BUILT UP ARE WH ICH IS APPLICABLE TO THE PROJECT WHICH HAVE BEEN APPROVED AFTER 01- 04-2005. ALTERNATIVELY WE PLEADED THAT THE PRORATA DEDUCTION MAY BE ALLOWED BY EXCLUDING THE AREA COVERED UNDER THE AMENITIES SPACE. FOR THAT PROPOSITION HE RELIED ON THE FOLLOWING DECISION: A) M/S. G K ASSOCIATES VS. ITO (ITA NO. 1137/PN/2010) (PARA 7) B) M/S. ADITYA DEVELOPERS VS. DCIT (PUNE) (ITA NO. 791/PN/2008) (PARA 6 & 7) ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. C) MAGARPATTA TOWNSHIP DEVELOPMENT & CONSTRUCTION CO. VS. DCIT (PUNE) (ITA NO. 822/PN/2011) (PARA 22 & 24 ) D) M/S. RAHUL CONSTRUCTION CO. VS. ITO (PUNE) (ITA NO. 1250 /PN/2009) (PARA 8 TO 10) E) RUNWAL MULTIHOUSING (P) LTD. VS. ACIT (PUNE) (ITA N O. 1015/PN/2011) (PARA 21.3) F) DEVI CONSTRUCTION CO. VS. ACIT (PUNE) (ITA NO. 1390/PN/2010) (PARA 8) G) JAYANT M LUNAVAT VS. ACIT (PUNE) (ITA NO. 229/PN/2010) (PARA 5.2,5.4 & 5.5) 9. PER CONTRA THE LD. DR SUPPORTED THE ORDERS OF TH E AUTHORITIES BELOW. WE FIND THAT THE ASSESSEES ORI GINAL LAY OUT AND BUILDING PLAN WAS SANCTIONED FOR FIRST TIME ON 14-06-2004 I.E. BEFORE 31-03-2005 (PAGE 12 OF THE PAPER BOOK). IT APPEARS THAT SUBSEQUENTLY THE ASSESSEE ACQUIRED SOME ADDITI ONAL LAND AND THE ORIGINAL PLAN WAS REVISED AND IN THE SANCT IONED LAY OUT 15% SPACE OF THE TOTAL AREA IS RESERVE FOR AMEN ITIES BUILDING. THE LD. COUNSEL POINTED OUT THAT TILL TO DAY NOT A SINGLE UNIT IN THE AMENITIES SPACE IS SOLD OUT. TH E FURTHER ARGUMENT OF THE LD. COUNSEL IS THAT HOUSING PROJECT IS VERY BROUGHT TERM AND AMENITIES BUILDING ITSELF IS THE I NDEPENDENT BUILDING. 10. LET US DEAL WITH THE ARGUMENT OF THE ASSESSEE G OING WITH THE CASE OF THE ASSESSING OFFICER THAT THE AMENITY BUILDING IS NOTHING BUT IT IS COMMERCIAL BUILDING ONLY AND PART OF THE ASSESSEES HOUSING PROJECT. IN THIS CASE THE ASSES SEES ORIGINAL LAYOUT AND THE BUILDING PLAN WERE SANCTION ED ON 14- 06-2004 EVEN IF THE N.A. ORDER OF THE PLOT IS DATED 16-09-2003 (COPY OF THE PLAN PLACED AT PAGE NOS. 13 AND 14 OF THE COMPILATION). AS PER THE LAYOUT PLAN SANCTIONED ON 14-06- 2004, THE TOTAL AREA OF THE PLOT IS SHOWN AT 4100 S Q. MTRS. AND AREA UNDER THE AMENITY SPACE 15% I.E. 615 SQ. M TRS. IT APPEARS THAT SUBSEQUENTLY THE ASSESSEE SOUGHT THE R EVISION IN THE SANCTIONED LAYOUT AND PLAN BUT THE AREA OF THE PLOT WAS 4100 SQ. MTRS. TILL 01-04-2005 THE ASSESSEE HAS NO T DONE ANYTHING ON THE PLOT. IT APPEARS THAT THE ASSESSEE ACQUIRED THE ADJOINING LAND AND FILED THE FURTHER REVISED PL AN AND LAYOUT FOR THE APPROVAL TO THE LOCAL AUTHORITY AND THE APPROVAL WAS GIVEN TO THE SAID PLAN ON 05-08-2006. IN THE S AID LAYOUT THE TOTAL AREA OF THE PLOT IS SHOWN AT 8400 SQ. FT. (COPY OF THE PLAN AND LAYOUT IS AT PAGE NOS. 28 AND 30 OF COMPIL ATION). ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. FROM THIS FACTUAL ASPECT, IT CAN SAFELY BE CONCLUDE D THAT IN FACT THE PLAN SANCTIONED ON 05-08-2006 IS ALMOST A NEW PLAN AND IT WAS NOT MERELY THE REVISION OF THE EXISTING PLAN, EVEN THOUGH IN THE APPLICATION TO THE LOCAL AUTHORITY TH E ASSESSEE HAS STATED REVISION OF THE PLAN AND LAYOUT. IN CON SEQUENCE OF ACQUISITION OF THE ADDITIONAL LAND, THE AREA OF THE AMENITIES SPACE WAS ALSO INCREASED SO IT CANNOT BE SAID THAT THE PLAN SANCTIONED ON 05-08-2006 IS ONLY THE REVISED PLAN. WE ARE UNABLE TO ACCEPT THE ARGUMENT OF THE LD. COUNSEL TH AT AS THE PROJECT WAS SANCTIONED ON 16-06-2004, HENCE THE DEF INITION OF THE BUILT UP AREA INTRODUCED IN SEC. 80IB(10) BY TH E FINANCE (NO. 2) ACT, 2004 W.E.F. 01-04-2005 IS NOT APPLICAB LE. AFTER ANXIOUSLY PERUSING THE DOCUMENTS ON RECORD, INCLUDI NG THE LAYOUT PLAN AND OTHER PERMISSIONS, IN OUR OPINION T HE EFFECTIVE SANCTIONED TO THE ASSESSEES HOUSING PROJECT IS ON 05-08-2006 AND HENCE, THE ASSESSEE WAS VERY MUCH AWARE REGARDI NG THE CHANGE IN LAW AND HE COULD HAVE ALSO ACCORDINGLY MA DE THE CHANGES IN THE PLAN AND LAYOUT. WE FIND NO MERIT O N THE FIRST ARGUMENT OF THE ASSESSEE IN RESPECT OF THE APPLICAB ILITY OF THE DEFINITION OF THE BUILT UP AREA INTRODUCED IN SEC. 80IB(10) W.E.F. 01-04-2005. WE HOLD THAT AMENDMENT INTRODUC ED TO SEC. 80IB(10), PUTTING, CEILING ON COMMERCIAL AREA IS APPLICABLE TO THE ASSESSEES PROJECT. 11. NOW WE ADDRESS THE NEXT LIMB OF THE ARGUMENT OF THE LD. COUNSEL I.E. AMENITIES SPACE ITSELF IS A SEPARATE P ROJECT. WE FIND FORCE IN THE SAID CONTENTION OF THE ASSESSEE. AS PER THE INFORMATION ON RECORD, WE FIND THAT THE ASSESSEE WA S REQUIRED TO RESERVE 15% AREA OF HIS PLOT FOR AMENITIES SPACE EVEN THOUGH THE LD. COUNSEL HAS TAKEN LOT OF EFFORTS TO CONVINCE THAT AMENITY BUILDING IS DIFFERENT THAN COMMERCIAL BUILDING BUT WE PREFER NOT TO GO INTO THE SAID CONTROVERSY. WE ARE EXAMINED THIS ISSUE ON THE DIFFERENT CONTENTION OF THE ASSESSEE THAT AMENITIES SPACE FOR AMENITY BUILDING IS A PROJECT ITSELF. ON THE PERUSAL OF THE LAYOUT AND P LAN, IT IS UNDISPUTED FACT ON RECORD THAT FROM THE FIRST APPRO VED LAYOUT, THE ASSESSEE HAS SHOWN 15% AREA RESERVE IN PLOT OF LAND AS AMENITIES SPACE. THE ARGUMENT OF THE LD. COUNSEL I S THAT THE LOCAL AUTHORITY IN TERMS OF DC RULES AND MAHARASHTR A REGIONAL TOWN PLANNING ACT, 1966 (IN SHORT MRTP AC T) MANDATES THAT IF THE PLOT AREA IS MORE THAN 1 ACRE IN THE RESIDENTIAL ZONE THEN AMENITIES SPACE TO THE EXTENT OF 15% OF THE PLOT AREA SHALL HAVE TO BE PROVIDED IN THE LAYO UT. THE LD. COUNSEL ALSO REFERRED TO SEC. 22 OF THE MRTP ACT, 1 966 TO IMPRESS HIS ARGUMENT ON THE POINT THAT THE RESERVAT ION OF THE AMENITY SPACE IS GOVERNED BY THE RELEVANT STATUTE A ND IS NOT THE MATTER OF CHOICE OF THE DEVELOPER. THE ASSESSE E HAS ALSO FILED THE COPY OF THE SANCTIONED PLAN OF THE AMENIT Y BUILDING ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. ON THE RESERVE SPACE OF 1230 SQ. MTRS. WHICH IS PLA CE AT PAGE NO. 40 OF THE COMPILATION. WE FURTHER FIND THAT FO R THE CONSTRUCTION OF THE BUILDING OF THE AMENITY SPACE S EPARATE PERMISSION HAS BEEN GRANTED BY THE DISTRICT COLLECT OR BEING COMPETENT LOCAL AUTHORITY VIDE ORDER DATED 07-06-20 08. IF THE BUILDING ON THE AMENITY SPACE HAS BEEN GRANTED SPEC IFIC PERMISSION SEPARATELY, IN OUR OPINION IT PARTAKE TH E CHARACTER OF INDEPENDENT PROJECT AND CANNOT BE TAGGED WITH TH E ASSESSEES OTHER PROJECTS. THE LD. COUNSEL ALSO SU BMITTED THAT NOT A SINGLE UNIT IN THE SAID BUILDING HAS BEE N SOLD TILL TODAY EVEN THOUGH GIVEN ON LEASE AND NO PROFIT FROM THE AMENITY BUILDING SPACE IS INCLUDED IN THE ELIGIBLE PROFIT ON WHICH THE DEDUCTION U/S. 80IB(10) HAS BEEN CLAIMED. THE LD. COUNSEL HAS RELIED ON THE PLETHORA OF THE DECISIONS ON THIS LIMB OF ARGUMENT BUT IN OUR OPINION THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T VS. VANDANA PROPERTY 353 ITR 36 (BOM) IS APPLICABLE TO THE FACTS OF THIS CASE. WE, ACCORDINGLY, HOLD THAT THE AMENI TY BUILDING IS AN INDEPENDENT PROJECT ITSELF AND IT CANNOT BE T AGGED WITH OTHER PROJECTS OF THE ASSESSEE. WE, FURTHER HOLD T HAT THE ASSESSEE HAS NOT VIOLATED ANY OF THE CONDITIONS OF SEC. 80IB(10) TO GAIN ELIGIBILITY FOR CLAIMING THE DEDUC TION AND HENCE BOTH THE AUTHORITIES BELOW ERRED BY DENYING T HE DEDUCTION TO THE ASSESSEE. WE, ACCORDINGLY, ALLOW THE ASSESSEES CLAIM OF DEDUCTION ON THE ABOVE REASON A ND DIRECT THE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S. 8 0IB(10). WE ALSO MAKE IT CLEAR THAT AS THE AMENITY BUILDING IS TREATED AS AN INDEPENDENT PROJECT, THE ASSESSEE IS NOT ENTI TLED TO INCLUDE THE PROFIT EARNED FROM THE SALE OF ANY OF T HE UNIT IN THE SAID BUILDING FOR CLAIMING THE DEDUCTION U/S. 8 0IB(10). 12. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED . 2.5.5 IN VIEW OF THE ABOVE DISCUSSION, THE FACTS O F SHROFF DEVELOPERS (SUPRA) ARE IDENTICAL TO THE FACTS OF TH E ASSESSEES CASE AND ACCORDINGLY, AMENITY SPACE 1 AND 2 SHOULD BE CO NSIDERED AS SEPARATE AND INDEPENDENT PROJECT. REGARDING THE OB JECTION OF THE ASSESSING OFFICER IN THE WEBSITE OF ASSESSEE COMPAN Y, THE ASSESSEE ITSELF HAS SHOWN SHOPS AVAILABLE IN DSK SUNDARBAN P ROJECT. THE ISSUE IS NOT RELEVANT TO DECIDE WHETHER THE RESIDEN TIAL AND AMENITY SPACE ARE SEPARATE PROJECTS OR ONE AND THE SAME. S O LONG AS THE BUILDING PLANS ARE INDEPENDENTLY SANCTIONED, TWO PR OJECTS ARE ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. SEPARATELY AND ACCORDINGLY, DISALLOWANCE WAS NOT RI GHTLY REJECTED ON THIS ACCOUNT. ACCORDINGLY, THE ASSESSING OFFICE R WAS NOT JUSTIFIED IN REJECTING CLAIM OF THE ASSESSEE UNDER THE PROVISIONS OF SECTION 80IB(10) OF THE ACT IN RESPECT OF DSK SUNDA RBAN. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY. SIMILAR ISSUE AROSE WITH REGARD TO DSK SUNDARBAN IN ASSESSEES APPEALS IN IT A NOS.724 & 725/PN/2013 FOR A.YS.2008-09 & 2009-10 RESPECTIVELY . FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONING, THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE ASSESSEES CLAIM O F DEDUCTION U/S.80IB(10) OF THE ACT WITH REGARD TO PROJECT DSK SUNDARBAN. 3. THE NEXT ISSUE IN ASSESSEES APPEAL IS WITH REGA RD TO THE CLAIM U/S. 80IB(10) OF THE ACT OF 5,29,73,817/- IN RESPEC T OF PROFITS DERIVED FROM THE HOUSING PROJECT MEGHMALHAR PHASE-I . THE ASSESSEE COMPANY HAS CLAIMED DEDUCTION IN RESPECT O F PROJECT DSK VISHWA PHASE - V (MEGHMALHAR PHASE-I PROJECT). THI S ISSUE HAS BEEN DISCUSSED BY THE ASSESSING OFFICER IN PARA 2.5 , PAGES 11 - 14 OF THE ASSESSMENT ORDER. THE SAID PROJECT WAS SANCT IONED ON 01.12.2005. LATER ON, THERE WAS REVISION IN THE PL AN. ACCORDING TO THE ASSESSING OFFICER, THE ASSESSEE GOT SANCTION OF BUILDINGS A TO W AND 22 ROW HOUSES. THE BUILDINGS WHICH WERE SANCTIO NED IN THE REVISED PLAN DATED 15.10.2008 ARE AS UNDER: 3.1 THE STAND OF THE ASSESSEE HAS BEEN THAT THE BUI LDINGS FOR WHICH THE SANCTION WAS RECEIVED FROM THE CORPORATIO N FOR PARKING + 7 FLOORS CONSTITUTED THE ELIGIBLE PROJECT. IT WAS SUBMITTED TO THE BUILDING DETAILS A,B,G TO J,O, P P + 1 FLOOR C TO F, K TO N, R TO W P + 7 FLOORS 22 ROW HOUSES G + 1 FLOOR ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. ASSESSING OFFICER THAT THE BUILDINGS FOR WHICH THE SANCTION WAS RECEIVED FOR PARKING + 1 FLOOR AND THE 22 ROW HOUSE S WERE NOT PART OF THE ELIGIBLE PROJECT. THE ASSESSING OFFICER HAS NOT APPRECIATED THE CONTENTION OF THE ASSESSEE. ACCORDING TO HIM, ALL THE BUILDINGS A TO W AND 22 RAW HOUSES ARE PART OF THE SAME PROJE CT AND THEREFORE, THE CLAIM OF THE ASSESSEE WAS NOT FOUND CORRECT. THE ASSESSING OFFICER FURTHER STATED THAT THE BUILT UP AREA OF THE PROPOSED ROW HOUSES EXCEEDED 1500 SQ. FT. AND THERE FORE, THE ASSESSEE HAD NOT COMPLIED WITH ONE OF THE ESSENTIAL CONDITIONS OF SECTION 80IB(10) OF THE ACT. THE CIT(A) HAS CONFIR MED THE ORDER OF THE ASSESSING OFFICER. THE RELEVANT OPERATIVE PORT ION IS IN PARA 6.3 OF ITS ORDER WHICH READS AS UNDER: 6.3 IT IS ALSO SEEN THAT BUILDINGS WHICH ARE UNDER DEVELOPMENT I.E. C, D, E, F, K, L, M, N, R, S, T, U , V, W AND THE BUILDINGS WHERE CONSTRUCTION HAS NOT COMMENCED I.E. A, B, G, H, I, J, O, P ARE INTERSPERSED. THEY FORM A CONTIGUOUS SEQUENCE FROM A TO W AS CAN BE SEEN FROM THE COPY O F RELEVANT PORTION OF SANCTION PLAN ANNEXED WITH THIS ORDER AS ANNEXURE-4. HENCE THE BUILDINGS CURRENTLY UNDER DEVELOPMENT CANNOT BE SEPARATED FROM THE REMAINING BUILDINGS AND CALLED AN INDEPENDENT PROJECT BY THEM SELVES, WHICH MAY BE COMPLETED BY MARCH, 2010. 3.2 ACCORDING TO THE CIT(A), THE CONTENTION OF THE ASSESSEE THAT THERE WERE 2 SEPARATE PROJECTS, NAMELY MEGHMALHAR P HASE -1 AND MEGHMALHAR PHASE - II IS NOT CORRECT. RELYING UPON THE PERMISSION OF THE COLLECTOR WHILE SANCTIONING THE LAYOUT PLAN, THE CIT(A) HAS STATED THAT SINCE THE ASSESSEE HAS NOT BEEN ABLE TO COMPLETE CONSTRUCTION OF ALL THE BUILDINGS, THE PROJECT WAS NOT COMPLETE AND THEREFORE, THE DEDUCTION U/S 80IB(10) IS NOT ALLOWA BLE TO THE ASSESSEE. 3.3 IN THIS REGARD, THE STAND OF THE ASSESSEE HAS B EEN THAT THERE WAS NO REASON TO DENY DEDUCTION IN RESPECT OF THE P ROJECT ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. MEGHMALHAR PHASE - I. THE ASSESSING OFFICER AND TH E CIT(A) HAVE HELD THAT THE BUILDINGS A TO W AND 22 ROW HOUSES CO NSTITUTE ONE SINGLE PROJECT. IN THIS REGARD, THE STAND OF THE A SSESSEE HAS BEEN THAT THE BUILDINGS FOR WHICH SANCTION WAS RECEIVED FOR PARKING + 7 FLOORS CONSTITUTED THE HOUSING PROJECT. THE SAID B UILDINGS OCCUPIED LAND AREA OF MORE THAN ONE ACRE. THE OTHER BUILDIN GS WHEREIN SANCTION WAS RECEIVED FOR PARKING + 1 FLOOR, THE CO NSTRUCTION HAD NOT STARTED SINCE IT WAS NOT FOUND ECONOMICALLY VIA BLE TO CONSTRUCT A BUILDING WITH ONLY ONE FLOOR. IN COMMERCIAL SENS E, THE ELIGIBLE HOUSING PROJECT CONSTITUTED ONLY THOSE BUILDINGS WH EREIN THE SANCTION WAS RECEIVED FOR PARKING + 7 FLOORS AND TH E CONSTRUCTION WAS CARRIED OUT AS PER SANCTIONED BUILDING PLAN WHI CH IS NOT IN DISPUTE. THE DISPUTE IS WITH REGARD TO COMPLETION AS PER SANCTIONED PLAN. IN THIS REGARD, WE FIND THAT THE TERM 'HOUSING PROJECT' IS NOT DEFINED IN THE INCOME TAX ACT BUT T HE HON'BLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES [(2013) 353 ITR 36 (BOM)] HAS HELD THAT HOUSING PROJECT WOULD M EAN A BUILDING OR A GROUP OF BUILDINGS. SECONDLY, HON'BLE HIGH COU RT HAS HELD AS UNDER: THE NEXT ARGUMENT OF THE REVENUE IS THAT TO AVAIL OF THE DEDUCTION UNDER SECTION 80-IB(10), THE HOUSING PRO JECT MUST BE ON THE SIZE OF A VACANT PLOT OF LAND WHICH HAS MINIMUM AREA OF ONE ACRE. IN THE PRESENT CASE, THERE ARE F IVE BUILDINGS (A, B, C, D AND E) ON A PLOT ADMEASURING 2.36 ACRES , HENCE, THE PROPORTIONATE AREA FOR EACH BUILDING WOULD BE L ESS THAN ONE ACRE AND, THEREFORE, THE BENEFIT OF SECTION 80 -IB(10) COULD NOT BE GRANTED IN RESPECT OF THE HOUSING PROJECT C ONSISTING THE 'E' BUILDING. AS RIGHTLY CONTENDED BY THE COUNSEL FOR THE ASSESSE E AND THE INTERVENORS, SECTION 80-IB(10)(B) SPECIFIES THE SI ZE OF THE PLOT OF LAND BUT NOT THE SIZE OF THE HOUSING PROJECT. T HE SIZE OF THE PLOT OF LAND, AS PER SECTION 80-IB(10), MUST HAVE MINIMUM AREA OF ONE ACRE. THE SECTION DOES NOT LAY DOWN THA T THE PLOT HAVING MINIMUM AREA OF ONE ACRE MUST BE A VACANT PL OT. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. THE QUESTION, THEREFORE, TO BE CONSIDERED IS, WHETH ER THE REVENUE IS JUSTIFIED IN READING THE EXPRESSION 'PL OT OF LAND' IN SECTION 80-IB(10)(B) AS 'VACANT PLOT OF LAND' ? THE OBJECT OF SECTION 80-IB(10) IN GRANTING DEDUCTI ON EQUAL TO ONE HUNDRED PER CENT. OF THE PROFITS OF AN UNDERTA KING ARISING FROM DEVELOPING AND CONSTRUCTING A HOUSING PROJECT IS WITH A VIEW TO BOOST THE STOCK OF HOUSES FOR LOWER AND MI DDLE INCOME GROUPS SUBJECT TO FULFILLING THE SPECIFIED C ONDITIONS. THE FACT THAT THE MAXIMUM SIZE OF THE RESIDENTIAL U NIT IN A HOUSING PROJECT SITUATED WITHIN THE CITY OF MUMBAI AND DELHI IS RESTRICTED TO 1000 SQUARE FEET CLEARLY SHOWS TH AT THE INTENTION OF THE LEGISLATURE IS TO MAKE AVAILABLE A LARGE NUMBER OF MEDIUM SIZE RESIDENTIAL UNITS FOR THE BE NEFIT OF THE COMMON MAN. HOWEVER, IN THE ABSENCE OF DEFINING THE EXPRESSION 'HOUSING PROJECT' AND IN THE ABSENCE OF SPECIFYING THE SIZE OR THE NUMBER OF HOUSING PROJECTS REQUIRE D TO BE CONSTRUCTED ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE, EVEN ONE HOUSING PROJECT CONTAINING MULTIPLE RESIDENTIAL UNITS OF A SIZE NOT EXCEEDING 1000 SQUARE FEET CONS TRUCTED ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE WOUL D BE ELIGIBLE FOR SECTION 80-IB(10) DEDUCTION. IF THE CO NSTRUCTION OF SECTION 80-IB(10) PUT FORTH BY THE REVENUE IS ACCE PTED, IT WOULD MEAN THAT IF ON A VACANT PLOT OF LAND, ONE HO USING PROJECT FULFILLING ALL CONDITIONS IS UNDERTAKEN, TH EN DEDUCTION WOULD BE AVAILABLE TO THAT HOUSING PROJECT AND IF T HEREAFTER SEVERAL OTHER HOUSING PROJECTS ARE UNDERTAKEN ON TH E VERY SAME PLOT OF LAND, THE DEDUCTION WOULD NOT BE AVAI LABLE TO THOSE HOUSING PROJECTS AS THE PLOT CEASES TO BE A VACANT PLOT AFTER THE CONSTRUCTION OF THE FIRST HOUSING PROJECT . SUCH A CONSTRUCTION IF ACCEPTED WOULD DEFEAT THE OBJECT WI TH WHICH SECTION 80-IB(10) WAS ENACTED. MOREOVER, PLAIN READING OF SECTION 80-IB(10) DOES N OT EVEN REMOTELY SUGGEST THAT THE PLOT OF LAND HAVING MINI MUM AREA OF ONE ACRE MUST BE VACANT. THE SAID SECTION ALLOW S DEDUCTION TO A HOUSING PROJECT (SUBJECT TO FULFILL ING ALL OTHER CONDITIONS) CONSTRUCTED ON A PLOT OF LAND HAVING MI NIMUM AREA OF ONE ACRE AND IT IS IMMATERIAL AS TO WHETHER ANY OTHER HOUSING PROJECTS ARE EXISTING ON THE SAID PLOT OF LAND OR NOT. IN THESE CIRCUMSTANCES, CONSTRUING THE PROVISIONS OF SECTION 80-IB(10) BY ADDING WORDS TO THE STATUTE IS WHOLLY UNWARRANTED AND SUCH A CONSTRUCTION WHICH DEFEATS T HE OBJECT WITH WHICH THE SECTION WAS ENACTED MUST BE R EJECTED. APART FROM THE ABOVE, THE CENTRAL BOARD OF DIRECT T AXES (CBDT) BY ITS LETTER DATED MAY 4, 2001, ADDRESSED TO THE MAHARASHTRA CHAMBER OF HOUSING INDUSTRY HAS STATED THUS : ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 'THE UNDERSIGNED IS DIRECTED TO REFER TO YOUR LETTE R NO. MCHI : RSA : M : 388/19799/3, DATED JANUARY 1, 200 1, AND TO STATE THAT THE ADDITIONAL HOUSING PROJECT O N EXISTING HOUSING PROJECT SITE CAN QUALIFY AS INFRASTRUCTURE FACILITY UNDER SECTIONS 10(23G) AND 80- IB(10) PROVIDED IT IS TAKEN UP BY A SEPARATE UNDERT AKING, HAVING SEPARATE BOOKS OF ACCOUNT, SO AS TO ENSURE THAT CORRECT PROFITS CAN BE ASCERTAINED FOR THE PURPOSE OF SECTION 80-IB AND ALSO TO IDENTIFY RECEIPTS AND REPAYMENTS OF LONG-TERM FINANCES UNDER THE PROVISIO NS OF SECTION 10(23G), SEPARATELY FINANCING ARRANGEME NTS AND ALSO, IF IT SEPARATELY FULFILS ALL OTHER STATU TORY CONDITIONS LISTED IN SECTIONS 10(23G) AND 80(B(10). WITH REGARD TO YOUR QUERY REGARDING THE DEFINITION OF HO USING PROJECT, IT IS CLARIFIED THAT ANY PROJECT WHICH HA S BEEN APPROVED BY A LOCAL AUTHORITY AS A HOUSING PROJECT SHOULD BE CONSIDERED ADEQUATE FOR THE PURPOSE OF SECTIONS 10(23G) AND 80-IB (10).' FROM THE AFORESAID LETTER OF THE CENTRAL BOARD OF D IRECT TAXES, IT IS CLEAR THAT FOR THE PURPOSES OF SECTION 80-IB (10) IT IS NOT THE MANDATE OF THE SECTION THAT THE HOUSING PROJECT MUST BE ON A VACANT PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE AND THAT WHERE A NEW HOUSING PROJECT IS CONSTRUCTED ON A PLOT OF LAND HAVING MINIMUM AREA OF ONE ACRE BUT WITH EXIST ING HOUSING PROJECTS WOULD QUALIFY FOR SECTION 80-IB(10 ) DEDUCTION. EVEN OTHERWISE, THE ARGUMENT OF THE REV ENUE DOES NOT STAND TO REASON BECAUSE, IN THE CITY OF MU MBAI WHERE THERE IS ACUTE SPACE CRUNCH, IT IS DIFFICULT TO FIND A VACANT PLOT HAVING MINIMUM AREA OF ONE ACRE AND E VEN IF FEW SUCH PLOTS ARE EXISTING IT CANNOT BE SAID THAT SECT ION 80-IB(10) DEDUCTION WAS INTENDED TO GIVE BENEFIT ONLY TO THE UNDERTAKINGS WHO CONSTRUCT HOUSING PROJECTS ON THOS E FEW PLOTS. THEREFORE, IT IS CLEAR THAT ON A PLOT OF LAN D HAVING MINIMUM AREA OF ONE ACRE, THERE CAN BE ANY NUMBER O F HOUSING PROJECTS AND SO LONG AS THOSE HOUSING PRO JECTS ARE APPROVED BY THE LOCAL AUTHORITY AND FULFILL THE CON DITIONS SET OUT UNDER SECTION 80-IB(10), THE DEDUCTION THEREUND ER CANNOT BE DENIED TO ALL THOSE HOUSING PROJECTS. SEC TION 80- IB(10) WHILE SPECIFYING THE SIZE OF THE PLOT OF L AND, DOES NOT SPECIFY THE SIZE OR THE NUMBER OF HOUSING PROJECT S THAT ARE REQUIRED TO BE UNDERTAKEN ON A PLOT HAVING MINIMU M AREA OF ONE ACRE. AS A RESULT, SIGNIFICANCE OF THE SIZE OF THE PLOT OF LAND IS LOST AND, THEREFORE, THE ASSESSEE SUBJECT T O FULFILLING THE OTHER CONDITIONS BECOMES ENTITLED TO SECTION 80-IB(10) DEDUCTION ON CONSTRUCTION OF A HOUSING PROJECT ON A PLOT HAVING AREA OF ONE ACRE, IRRESPECTIVE OF THE FACT THAT THERE EXIST OTHER HOUSING PROJECTS OR NOT. IN THESE CIRCU MSTANCES, ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. THE DECISION OF THE TRIBUNAL IN REJECTING THE CONTE NTION OF THE REVENUE REGARDING THE SIZE OF THE PLOT CANNOT BE FA ULTED. IN VIEW OF ABOVE, THE BUILDING FOR WHICH SANCTION WAS RECEIVED FOR PARKING + 7 FLOORS CONSTITUTE A HOUSING PROJECT ON STANDALONE BASIS AND ELIGIBLE FOR CLAIMING DEDUCTION U/S.80IB( 10) OF THE ACT AS CLAIMED BY THE ASSESSEE. 3.4 WE ALSO FIND THAT HON'BLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS PVT. LTD. VS. ACIT, (2013) 255 CTR 149 (MAD) HAS HELD THAT THE EXPRESSION 'HOUSING PROJECT' IS NOT D EFINED IN SECTION 80-IB(10) OF THE ACT, AND, BY REFERRING TO THE DEFI NITION OF 'HOUSING PROJECT' UNDER EXPLANATION TO SECTION 80HHBA OF THE ACT OBSERVED THAT THE EXPRESSION 'HOUSING PROJECT' UNDER SECTION 80-IB(10) OF THE ACT REFERS TO ANY 'BUILDING' OTHER THAN 'ROAD', 'BR IDGE' OR OTHER STRUCTURE. ACCORDING TO THE RATIO OF VISWAS PROMOTE RS PVT. LTD. (SUPRA) EACH BLOCK IN A LARGER PROJECT HAS TO BE TA KEN AS AN INDEPENDENT BUILDING AND HENCE A 'HOUSING PROJECT' FOR THE PURPOSE OF CONSIDERING THE CLAIM OF DEDUCTION U/S. 80-IB(10 ) OF THE ACT. THE RATIO OF VISWAS PROMOTERS PVT. LTD. (SUPRA) SUP PORTS THE FACTS OF THE ASSESSEE CASE, WHEREIN, THE PROFITS DERIVED FROM PARKING + 7 BUILDINGS SHOULD BE ALLOWED AS DEDUCTION U/S.80IB(1 0) OF THE ACT. WE ALSO FIND THAT THE ITAT PUNE IN THE CASE OF RUNW AL MULTIHOUSING PVT. LTD. [ITA NO. 1015 - 1017/PN/11] WHEREIN THE TRIBUNAL HAS HELD THAT WHATEVER PORTION COMPLETED B Y THE ASSESSEE WHICH SATISFIES THE CONDITIONS PRESCRIBED U/S.80IB( 10) IS ELIGIBLE FOR DEDUCTION. SIMILAR VIEW HAS BEEN TAKEN BY ITAT MUMB AI IN THE CASE OF MUDHIT GUPTA [51 DTR 217]. IN VIEW OF ABO VE IN THE ABSENCE OF ANY DEFINITION OF HOUSING PROJECT, THE A SSESSING OFFICER AND THE CIT(A) WERE NOT JUSTIFIED IN HOLDING THAT A LL THE BUILDINGS SANCTIONED IN THE REVISED PLAN DATED 15.10.2008 CON STITUTE THE HOUSING PROJECT AS DISCUSSED ABOVE. IN VIEW OF AB OVE DISCUSSION, THE CHOICE IS FOR THE ASSESSEE TO DETERMINE WHICH B UILDINGS WOULD ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. FORM PART OF THE HOUSING PROJECT AND THE CONDITIONS LAID DOWN IN SECTION 80IB(10) OF THE ACT SHOULD BE CHECKED VIS-A -VIS THOSE BUILDINGS WITH RESPECT TO WHICH THE DEDUCTION IS CL AIMED. SINCE THE ASSESSEE HAS COMPLETED ALL THE BUILDINGS FOR WH ICH SANCTION IS RECEIVED FOR PARKING + 7 FLOORS AND ALL THE CONDITI ONS LAID DOWN IN SECTION 80IB(10) OF THE ACT WERE COMPLIED WITH, THE ASSESSEE IS ENTITLED FOR CLAIMING DEDUCTION U/S.80IB(10) OF THE ACT. IT IS SETTLED LEGAL POSITION THAT BENEFICIAL PROVISIONS HAVE TO B E INTERPRETED LIBERALLY IN FAVOUR OF ASSESSEE. REGARDING THE CON TENTION OF THE ASSESSING OFFICER THAT THE BUILT UP AREA OF THE ROW HOUSES EXCEEDED 1500 SQ. FT. IS NOT RELEVANT SINCE THE ROW HOUSES D O NOT FORM PART OF THE ELIGIBLE HOUSING PROJECT. IN VIEW OF ABOVE DIS CUSSION, THE ASSESSING OFFICER IS DIRECTED TO ALLOW THE ASSESSEE S CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT IN RESPECT OF PAR KING + 7 FLOORS OF DSK VISHWA PHASE-V, MEGHMALHAR PHASE-I PROJECT AS I NDEPENDENT PROJECT. THIS VIEW IS FORTIFIED BY THE DECISION OF VANDANA PROPRTIES (SUPRA). THIS TAKES CARE OF ASSESSEES APPEAL IN I TA NOS.724 AND 725/PN/2013 FOR A.Y. 2008-09 AND 2009-10 ON THE ISS UE. 4. IN ITA NO.769/PN/2013, THE REVENUE HAS FILED THE APPEAL ON THE FOLLOWING GROUNDS. 1. THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX(APP EALS) IS CONTRARY TO LAW AND TO THE FACTS AND CIRCUMSTANC ES OF THE CASE. 2. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN DELETING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER OF THE ASSESSEE'S CLAIM OF DEDUCTION OF RS.25,28,71 5/- IN RESPECT OF THE HOUSING PROJECT 'DSK VISHWA-III' INS TEAD OF CONFIRMING THE SAID DISALLOWANCE. 3. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN HOLDING THAT THE AMENDED SECTION 80IB(10)(D) WOU LD ONLY APPLY TO PROJECTS STARTED AFTER 01.04.2005 AND NOT TO PROJECTS STARTED BEFORE 01.04.2005. ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. 4. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN INTERPRETING SECTION 80IB(10), IN THE CONTEXT OF APPLICABILITY OF CLAUSE (D), IN A MANNER NEITHER CONTEMPLATED NOR PROVIDED FOR UNDER THE ACT. 5. THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) GROSSLY ERRED IN HOLDING THE ASSESSEE AS ELIGIBLE FOR DEDUCTION U/S.80IB(10) WHEN 6132 SQ.FT. OF THE AGGREGATE BUIL T-UP AREA OF THE DSK VISHWA-III PROJECT CONSTITUTED COMM ERCIAL SPACE. 6. THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) GROSSL Y ERRED IN DELETING THE INTEREST DISALLOWANCE OF RS.12,44,921/- WITHOUT GIVING ANY DEFINITE FINDINGS THAT THE ASSESSEE HAD NOT MADE THE DEPOSIT OF RS.1,27,32 ,288/- WITH SEBI FROM OUT OF INTEREST BEARING FUNDS & DEPO SITS. 7. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, THE ORDER OF THE LD. COMMISSIONER OF INCOME-TAX(APPEALS) MAY BE VACATED AND THAT OF THE ASSESSING OFFICER, BE RESTORED. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND A NY OR ALL THE GROUNDS OF APPEAL 5. THE FIRST ISSUE IS WITH REGARD TO DISALLOWANCE O F CLAIM OF THE ASSESSEE OF RS.25,28,715/- IN RESPECT OF THE HOUSIN G PROJECT DSK VISHWA-III. IN APPEAL, THE CIT(A) OBSERVED THAT TH E ASSESSING OFFICER HAD FOLLOWED HIS PREDECESSOR ORDER IN RESPE CT OF ELIGIBILITY OF HOUSING PROJECT AS WAS HELD IN A.Y. 2004-05, 2005-0 6 AND 2006- 07. THE MATTER WAS TRAVELLED TO ITAT AND THE TRIBU NAL IN ITA NO.219/PN/2009 AND ITA NO.17/PN/2009 HAS DECIDED TH E ISSUE RELATING TO APPLICATION OF AMENDED PROVISIONS OF SE CTION 80IB(10) W.E.F. 01.04.2005 TO THE HOUSING PROJECT ALREADY AP PROVED AND STARTED IN EARLIER YEARS AS PER THE THEN PREVAILING LAW HAS TO BE DECIDED AS PER RATIO LAID DOWN BY THE MUMBAI BENCH OF ITAT IN THE CASE OF HIRANANDANI AKRUTI JV AND ALSO THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF BRAHMA ASSOCIATES WHEREIN, IT HAS BEEN HELD THAT THE ASSESSEE IS ENTITLED TO DEDU CTION U/S.80IB(10) OF THE ACT IN RESPECT OF THE HOUSING P ROJECT. THIS ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. REASONED FINDING OF CIT(A) NEEDS NO INTERFERENCE FR OM OUR SIDE BECAUSE THE SAME IS COVERED BY THE JURISDICTIONAL H IGH COURT IN THE CASE OF BRAHMA ASSOCIATES (SUPRA). WE UPHOLD T HE SAME. ACCORDINGLY, THE REVENUES APPEAL ON THIS ACCOUNT F AILS. 6. THE OTHER ISSUE IN REVENUES APPEAL IS WITH REGA RD TO NOTIONAL INTEREST DISALLOWANCE OF RS.12,44,921/-. THE ASSES SING OFFICER FOUND THAT DURING THE IMPUGNED ASSESSMENT YEAR THE ASSESSEE HAS DEPOSITED RS.1,27,32,288/- WITH THE DESIGNATED STOC K EXCHANGE I.E. BSE IN ACCORDANCE WITH THE GUIDELINES OF SEBI FOR D EPOSIT OF 1% OF AMOUNT OF THE SHARE ISSUE COMPRISING OF RIGHT ISSUE AND PUBLIC ISSUE BY THE ASSESSEE DURING THE YEAR. HE HELD THA T THIS INTEREST RELATING TO THE ISSUE OF SHARE CAPITAL NEEDED TO BE CAPITALIZED ACCORDINGLY A SUM OF RS.12,44,921/- WAS DISALLOWED FROM THE INTEREST EXPENSES AND CAPITALIZED 1/5 TH OF THE SAME WAS ALLOWED U/S.35B AT RS.2,48,984/-. 6.1 THE MATTER WAS CARRIED BEFORE FIRST APPELLATE AUTHORITY, WHEREIN THE VARIOUS CONTENTIONS WERE RAISED ON BEHA LF OF ASSESSEE. CONSIDERING THE SAME, THE CIT(A) OBSERVED THAT THE ASSESSING OFFICER HAS ARRIVED AT A NOTIONAL FIGURE OF INTERES T ON THE DEPOSIT MADE BY THE ASSESSEE UNDER SEBI GUIDELINES. SECTIO N 35D PERMITS SPECIFIC EXPENDITURE INCURRED BY THE ASSESSEE IN CO NNECTION WITH EXTENSION OF HIS UNDERTAKING OR SETTING UP OF A NEW UNIT WHICH WAS PROVIDED SPECIFICALLY UNDER SUB-SECTION (2) OF SECT ION 35D. THE NOTIONAL INTEREST CALCULATED BY THE ASSESSING OFFIC ER WAS NOT A SPECIFIC EXPENDITURE U/S.35D(2). WHAT IS NOT PROVI DED IN THE ACT CANNOT BE IMPORTED INTO THE PLAIN AND SIMPLE WORDS OF THE STATUTE. THE HONBLE HIGH COURT OF GAUWAHATI IN THE CASE OF HIGHWAYS CONSTRUCTION CO. PVT. LTD. VS. CIT (1993) 199 ITR 7 02 (GAH) HAS HELD THAT THERE IS NO PROVISION IN THE INCOME TAX A CT EMPOWERING THE I.T. AUTHORITY TO INCLUDE THE INCOME, INTEREST WHICH WAS NOT DUE ITA NOS.723 TO 725 OF 13 769 TO 771 OF 2013 D.S. KULKARNI DEVELOPERS LTD. NOR COLLECTED. IN THE PRESENT CASE ALSO, IT IS SEE N THAT THE NOTIONAL DISALLOWANCE OF INTEREST EXPENSES WAS NOT JUSTIFIED SINCE THE ASSESSING OFFICER HAS NOT ARRIVED AT ANY FINDING DE POSIT IN ACCORDANCE WITH SEBI GUIDELINES IS NOT FOR BUSINESS PURPOSES NEITHER IS THE AMORTIZATION OF SUCH INTEREST EXPEND ITURE SPECIFIED UNDER THE SPECIFIC PROVISIONS OF SECTION 35D(2) OF THE ACT. ACCORDINGLY, THE ASSESSING OFFICER WAS RIGHTLY DIRE CTED TO DELETE THE DISALLOWANCE IN QUESTION BECAUSE THE EXPENDITURE WA S FOR BUSINESS PURPOSE AS CONTENDED BY THE ASSESSEE. ACCORDINGLY, ALL THE REVENUE APPEALS ARE DISMISSED. 7. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED AND THE APPEALS FILED BY THE REVENUE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY OF 31 ST JULY, 2014. SD/- SD/- (R.K. PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED THE 31 ST JULY, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) THE DEPARTMENT 3) THE CIT(A)-I, PUNE 4) THE CIT-I, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, ITAT, PUNE.