Late Shri Kishanchand Vaswani L/H Vijay Vaswani, Pune V. ITO, Ward 4(5), Pune

ITA 805/PUN/2013

• Counselvise Citation: 80524514 RSA 2013
• Duration Of Justice: 1 year(s) 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence
• Section: 143(3); 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.805/PN/2013 (ASSESSMENT YEAR: 2009-10) LATE SHRI KISHANCHAND VASWANI REPRESENTED BY LEGAL HEIR VIJAY VASWANI, 1737 R.S. KEDARI ROAD, CAMP, PUNE 411004 PAN: ABYPV4994M . APPELLANT VS. THE INCOME TAX OFFICER, WARD 4(5), PUNE . RESPONDENT APPELLANT BY : S/SHRI SUNIL PATHAK NIKHIL PATHAK ASSESSEE BY : SHRI RAJESH DAMOR DATE OF HEARING : 10-11-2014 DATE OF PRONOUNCEMENT : 31-12-2014 ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT(A)-II, PUNE DATED 16.11.2012 RELATING TO ASSESSMENT YEAR 2009- 10 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1] THE LEARNED CIT(A) ERRED IN DENYING THE DEDUCTION U/S 80IB(10) OF RS.2,31,16,226/- CLAIMED BY THE ASSESSEE IN RESPECT OF THE PROFITS DERIVED FROM THE HOUSING PRO JECT 'VED VIHAR' WITHOUT APPRECIATING THAT THE ASSESSEE HAD FU LFILLED ALL THE CONDITIONS LAID DOWN IN SECTION 80IB(10) OF THE ACT AND HENCE, THE DEDUCTION WAS ALLOWABLE TO THE ASSESSEE. 2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE AREA OF THE PLOT ON WHICH THE SAID PROJECT WAS CONSTRUCTED WAS LESS T HAN 1 ACRE AND HENCE, THE DEDUCTION U/S 80IB(10) WAS NOT ALLOWABLE TO THE ASSESSEE IN RESPECT OF THE SAID PROJECT. ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 2 2.1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE AREA OF PLOT MENTIONED IN THE 7/12 EXTRACT AND THE AUDIT REPORT O F THE ASSESSEE WAS LESS THAN 1 ACRE AND THEREFORE, THE DEDU CTION U/S 80IB(10) WAS NOT ALLOWABLE TO THE ASSESSEE. 3] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT THE AR EA OF PLOT COMPUTED BY APPLYING THE TRIANGULATION METHOD AS ST ATED IN PMC'S SANCTIONED PLAN WAS MORE THAN 1 ACRE AND HENC E, THE DEDUCTION U/S 80IB(10) WAS ALLOWABLE TO THE ASSESSE E IN RESPECT OF THE PROJECT 'VED VIHAR'. 3.1] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THA T THE TRIANGULATION METHOD WAS A MORE APPROPRIATE METHOD A ND HENCE, THE AREA COMPUTED BY APPLYING THE SAME COULD N OT BE REJECTED BY RELYING ON THE AREA STATED ON 7/12 E XTRACTS AND HENCE, THE DEDUCTION U/S 80IB(10) WAS ALLOWABLE TO THE ASSESSEE. 3.2] THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THA T THE PMC'S SANCTIONED PLAN WAS ALSO PRODUCED BEFORE THE LEARNED A.O. AND HENCE, THERE WAS NO REASON TO DOUBT TH E GENUINENESS OF THE SAME AND THEREFORE, THE DEDUCTIO N U/S 80IB(10) SHOULD HAVE BEEN ALLOWED TO THE ASSESSEE. 4] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE CONST RUCTION OF THE PROJECT 'VED VIHAR' WAS NOT COMPLETED BEFORE THE STIPULATED TIME LIMIT OF 31 ST MARCH, 2009 AND HENCE, THE DEDUCTION U/S 80IB(10) WAS NOT ALLOWABLE TO THE ASSESS EE IN RESPECT OF THE PROFITS DERIVED FROM THE SAID PROJECT. 4.1] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE 12 A DDITIONAL FLATS CONSTRUCTED BY THE ASSESSEE ON THE TOP OF BUILD INGS A AND B WERE A PART OF THE PROJECT 'VED VIHAR' AND SIN CE THE SAME WERE NOT COMPLETED BEFORE 31 ST MARCH, 2009, THE DEDUCTION U/S 80IB(10) WOULD NOT BE ALLOWABLE TO THE ASSESSEE IN RESPECT OF THE PROFITS DERIVED FROM THE PROJECT 'VED VIHAR. 4.2] THE LEARNED CIT(A) ERRED IN HOLDING THAT THE PERM ISSION IN RESPECT OF THE ADDITIONAL UNITS WAS OBTAINED BY WAY OF REVISION OF THE ORIGINAL BUILDING PLAN AND HENCE, IT C ANNOT BE CONSIDERED AS A SEPARATE HOUSING PROJECT FOR THE PU RPOSES OF SECTION 80IB(10) AND THEREFORE, THE DEDUCTION U/S 80IB(10) WAS NOT ALLOWABLE TO THE ASSESSEE. 5] THE LEARNED CIT(A) FAILED TO APPRECIATE THAT FOR TH E PURPOSES OF SECTION 80IB(10), THE 12 ADDITIONAL UNITS CONSTRUCTED BY PROCURING TDK WERE TO BE CONSIDERED AS A SEPARATE H OUSING PROJECT AND HENCE, THERE WAS NO REASON TO DENY THE DEDUCTION U/S 80IB(10) CLAIMED BY THE ASSESSEE. 5.1] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING TH AT THE CONSTRUCTION OF THE 80 UNITS SANCTIONED AS PER THE ORIGINAL PLAN WAS COMPLETE IN ALL RESPECT BEFORE OBTAINING THE COMMENCEMENT CERTIFICATE IN RESPECT OF THE ADDITIONA L UNITS AND HENCE, THE ADDITIONAL FLOORS COULD NOT BE CONSIDERED AS ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 3 A PART OF THE SAME HOUSING PROJECT FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. 5.2] THE LEARNED CIT(A) ERRED IN NOT APPRECIATING THAT AS PER THE CBDT LETTER DATED 04.05.2001 ISSUED TO THE MAHARASHTRA CHAMBER OF HOUSING SOCIETY, THE ADDITIONAL FLOORS CONSTRUCTED ON EXISTING BUILDINGS BY PROCURING TDR IS TO BE CONSIDERED AS A SEPARATE HOUSING PROJECT FOR THE PU RPOSES OF SECTION 80IB(10) AND HENCE, THERE WAS NO REASON TO DENY THE DEDUCTION U/S 80IB(10) CLAIMED BY THE ASSESSEE. 6] WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE ASSE SSEE SUBMITS THAT ASSUMING WITHOUT ADMITTING THAT THE SAID HOUSING PROJECT WAS NOT COMPLETED BEFORE 31 ST MARCH, 2009, THE DEDUCTION U/S 80IB(10) SHOULD HAVE BEEN ALLOWED ON A PROPORTIONATE BASIS IN RESPECT OF THE 80 UNITS DULY COMPLETED BEFORE THE STIPULATED TIME PERIOD. 7] THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR D ELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 3. THE ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 4. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESSEE WA S ENGAGED IN CONSTRUCTION ACTIVITY AND HAD CONSTRUCTED A HOUSING PRO JECT NAMED VED VIHAR IN PUNE. THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE PROFITS FROM THE SAID PROJECT AT RS.2,31,16,226/-. HOWEVER, THE ASSESSING OFFICER HAD DENIED THE SAID DEDUCTION CLAIMED UNDER SECTION 80IB(10) O F THE ACT FOR THE VIOLATION OF CONDITIONS PRESCRIBED IN SUB-CLAUSES (A) A ND (B) OF SECTION 80IB(10) OF THE ACT. THE FIRST OBJECTION RAISED B Y THE ASSESSING OFFICER WAS THAT THE PROJECT CONSTRUCTED WAS ON LAND AR EA WHICH WAS NOT MORE THAN 1 ACRE AND SECONDLY, THE SAID PROJECT WAS NOT CONSTRUCTED WITHIN THE TIME LIMIT SINCE ALL THE FLATS WERE NOT FULLY COMPLETED WITHIN 4 YEARS. IT HAS BEEN NOTED BY THE ASS ESSING OFFICER THAT THE PROJECT WAS FIRST SANCTIONED ON 21.05.2004 FOR T HE CONSTRUCTION OF 80 FLATS. SUBSEQUENTLY, THE SANCTIONED PLA NS WERE REVISED IN THE YEAR 2009 UNDER WHICH, THE ASSESSEE GOT THE SANCTION ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 4 FOR THE CONSTRUCTION OF 92 FLATS. THE ASSESSING OFFICER FURT HER NOTED THAT THE ASSESSEE HAD RECEIVED PART COMPLETION CERTIFICAT E DATED 30.03.2009 FOR 80 FLATS IN BUILDING NOS.A AND B. THE AREA OF T HE LAND ON WHICH THE CONSTRUCTION WAS MADE FOR THE PROJECT WAS 4000 SQ. MTRS., WHICH WAS LESS THAN 1 ACRE I.E. 4046.85 SQ. MTRS. AND FURTHER, THE ASSESSEE HAVING NOT COMPLETED THE CONSTRUCTION OF ALL THE FLATS, W AS NOT ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(1 0) OF THE ACT, AS PER THE ASSESSING OFFICER. 5. BEFORE THE CIT(A), THE CONTENTION OF THE ASSESSEE WAS THAT AS PER THE APPROVED PLAN, THE PLOT AREA AS PER 7/12 EXTRACTS WAS 4000 SQ. MTRS. HOWEVER, IN THE SAID PLAN ITSELF, THE AREA OF THE PLOT AS PER TRIANGULATION METHOD WAS 4048.46 SQ. MTRS., WHICH WAS MORE THAN 1 ACRE. FURTHER, THE PLEA OF THE ASSESSEE BEFORE CIT(A) WAS THAT THE AREA MENTIONED IN 7/12 EXTRACT WAS NOT EXACT BUT APPROXIMAT E AREA AND THEREFORE, THE SAME SHOULD NOT HAVE BEEN CONSIDERED AS FINAL. THE CIT(A) REJECTED THE PLEA OF THE ASSESSEE AS DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAD FAILED TO FILE ANY EXPLANATION EVEN THOUGH QUERY WAS RAISED BY THE ASSESS ING OFFICER IN THIS REGARD. THE CIT(A) OBSERVED THAT THE APPELLANT HAS NEVER RAISED THE ISSUE OF TRIANGULATION METHOD EARLIER THOUGH THE APPROVED PLAN OF THE PMC WAS AVAILABLE SO AS TO JUSTIFY THE CLAIM BEFORE T HE ASSESSING OFFICER DESPITE OPPORTUNITY PROVIDED BY THE ASSESSIN G OFFICER. THE CIT(A) DOUBTED THE VERACITY OF THE CLAIM BEING MADE BY TH E ASSESSEE AND IN REJECTING THE SAME, IT WAS HELD BY THE CIT(A) THAT BECAUSE OF THE NON-FULFILLMENT OF THE CONDITIONS STIPULATED UNDER SECTION 80IB (10)(B) OF THE ACT, THE ASSESSEE WAS NOT ENTITLED TO THE CLAIM OF DEDUCTION. ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 5 6. IN RESPECT OF THE SECOND CLAIM OF THE ASSESSEE OF CO MPLETION OF THE PROJECT WITHIN THE STIPULATED TIME FRAME UNDER SECTION 80IB(10) OF THE ACT I.E. BEFORE 31.03.2009, THE CIT(A) NOTED THAT THE AS SESSEE HAD RECEIVED THE COMMENCEMENT CERTIFICATE DATED 21.05.2004 IN RESPECT OF 80 FLATS. SUBSEQUENTLY, THE SANCTIONED PLANS WERE REVISED IN THE YEAR 2009 VIDE CERTIFICATE DATED 16.03.2009 WHERE THE ASSESSEE GOT SA NCTION FOR A TOTAL OF 92 FLATS I.E. 12 ADDITIONAL FLATS. THE ASSESSEE H AD RECEIVED THE OCCUPANCY CERTIFICATE FOR 80 FLATS AS ON 30.03.2009. H OWEVER, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD ONLY RECE IVED PART OCCUPANCY CERTIFICATE DATED 30.03.2009 FOR 80 FLATS ONLY AS AGAINST 92 FLATS IN BUILDING NOS.A AND B AND THUS, THE ASSESSEE WAS HE LD TO HAVE NOT COMPLETED THE PROJECT WITHIN THE STIPULATED PERIOD AN D AS SUCH, HAD VIOLATED THE PROVISIONS OF SECTION 80IB(10)(A) OF THE AC T. THE CIT(A) OBSERVED THAT THE LOCAL AUTHORITY HAD SANCTIONED A DDITIONAL 12 UNITS IN BUILDING NOS.A AND B AS PART OF THE EXISTING PROJEC T AND THE ASSESSEE WAS NOT CLAIMING THE DEDUCTION UNDER SECTION 80 IB(10) OF THE ACT, AS THE SAME HAD NOT BEEN COMPLETED WITHIN THE STIPU LATED TIME PERIOD, WHERE THE SANCTION WAS RECEIVED ONLY ON 16.03.200 9. WHERE THE LOCAL AUTHORITY I.E. PMC HAD ISSUED THE COMMENCEMENT C ERTIFICATE FOR 12 FLATS AS PART OF THE SAME PROJECT, THE ASSESSEE W AS FOUND NOT TO HAVE FULFILLED THE CONDITIONS LAID DOWN IN SECTION 80IB(10) OF TH E ACT AND THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE AC T WAS DENIED TO THE ASSESSEE. THE ALTERNATE PLEA OF THE ASSE SSEE FOR ALLOWING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON PROPO RTIONATE BASIS IN RESPECT OF 80 FLATS FOR WHICH, THE COMPLETION CERTIFICATE HA D BEEN RECEIVED, WAS ALSO REJECTED FOR THE YEAR UNDER CONSIDERATION. 7. THE ASSESSEE IS IN APPEAL AGAINST THE ORDER OF CIT(A) O N BOTH THE ISSUES. ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 6 8. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESS EE POINTED OUT THAT THE PERUSAL OF THE LAYOUT PLAN PLACED AT PAGE 1 OF THE PAPER BOOK WOULD REFLECT THAT THE AREA OF THE PLOT AS PER 7/12 EXTRACT WAS 4000 SQ. MTRS. HOWEVER, IN THE SAID PLAN ITSELF, THE PLOT ARE A OF THE SAID PLOT WAS CALCULATED BY THE TRIANGULATION METHOD AND T HE AREA WAS 4048.46 SQ. MTRS., WHICH WAS MORE THAN 1 ACRE. OUR ATTEN TION WAS DRAWN TO THE COPY OF SALE AGREEMENT PLACED AT PAGES 5 7 TO 60 OF THE PAPER BOOK, IN WHICH IT IS STATED THAT AS PER 7/12 EXTRA CT, THE PLOT OF LAND WAS 4000 SQ. MTRS. THE CONTENTION OF THE LEARNED A UTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT WHEN THE LAYO UT PLAN ITSELF SPECIFIES ACTUAL TRIANGULATION METHOD AND THE AREA OF THE P LOT BEING 4048.46 SQ. MTRS., AS PER THE TRIANGULATION METHOD WAS B EYOND THE LIMIT PRESCRIBED UNDER SECTION 80IB(10)(A) OF THE ACT AND THE CLAIM OF DEDUCTION WAS ALLOWABLE TO THE ASSESSEE. THE SECOND PLE A RAISED BY THE ASSESSEE IN THIS REGARD WAS THAT, IN CASE THE AUDITO R HAD PICKED UP THE FIGURES OF 4000 SQ. MTRS. IN THE AUDIT REPORT DOES NOT MEAN THAT, THE ACTUAL AREA WAS LESS THAN 1 ACRE. RELIANCE IN THIS RE GARD, WAS PLACED UPON THE DECISION OF PUNE BENCH OF THE TRIBUNAL IN TAURUS ENTERPRISES VS. DCIT IN ITA NO.85/PN/2011 FOR ASSESSMENT YEAR 2007-08. 9. IN RESPECT OF THE SECOND ISSUE OF THE COMPLETION CERT IFICATE BEING OBTAINED BY THE ASSESSEE, IT WAS POINTED OUT BY THE LEAR NED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THAT ON 21.05.2004 ORIGIN AL PLANS WERE SANCTIONED FOR THE COMMENCEMENT OF THE CONSTRUCTION OF 8 0 FLATS IN BUILDING NOS.A AND B. ON 30.03.2009, THE COMPLETION CERTIFICAT E IN RESPECT OF BOTH THE BUILDINGS WAS RECEIVED. THE COPY OF T HE COMPLETION CERTIFICATE IS PLACED AT PAGES 23 AND 23(A) OF THE PAPER BOOK. ON PAG ES 25 TO 49 OF THE PAPER BOOK, THE ASSESSEE HAS PLACED TH E AGREEMENT FOR ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 7 PURCHASE OF TDR RIGHTS ON 18.12.2008, PURSUANT TO WHICH, A N APPLICATION WAS MOVED FOR SANCTION OF THE CONSTRUCTION OF A DDITIONAL FLATS IN THE EXISTING BUILDING ON 16.03.2009. THE REVISED COMMENCEMENT CERTIFICATE WAS RECEIVED AND IT WAS DISPUTED THAT EXISTING BUILDING WAS DIFFERENT FROM THE ADDITIONAL BUILDING. FURT HER, HE POINTED OUT THAT THE ADDITIONAL 12 FLATS WERE NOT PART OF 80 FLATS AND WERE SEPARATE HOUSING PROJECT AND THERE WAS NO CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE SAID 12 FLATS. O UR ATTENTION WAS DRAWN TO THE COPY OF LETTER PLACED AT PAGE 50 OF TH E PAPER BOOK, UNDER WHICH CLARIFICATION WAS SOUGHT UNDER THE PROVISIONS OF SECTION 10(23G) OF THE ACT I.E. IN RESPECT OF THE TDR RIGHTS. IT W AS THE PLEA OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE THE CONSTRUCTION ON THE BASIS OF TDR PURCHASE ON EXISTING BU ILDING ENTITLES THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IB(10 ) OF THE ACT. FURTHER, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE A SSESSEE REFERRED TO THE CLARIFICATION GIVEN BY THE CBDT VIDE LETTER DATED 04.05.2001 IN WHICH, IT WAS CLARIFIED THAT WHERE THERE IS AN A DDITIONAL HOUSING PROJECT ON EXISTING HOUSING PROJECT SOUGHT, THEN THE SAME WOULD QUALIFY AS INFRASTRUCTURE FACILITY UNDER SECTION 10(23G ) AND SECTION 80IB(10) OF THE ACT, PROVIDED IT IS TAKEN UP BY A SEPARATE UNDERTAKING HAVING SEPARATE BOOKS OF ACCOUNT IN ORDER T O ENSURE THE CORRECT PROFITS OF THE BUSINESS CAN BE ASCERTAINED FOR TH E PURPOSES OF SECTION 80IB(10) OF THE ACT. THE LEARNED AUTHORIZED REPR ESENTATIVE FOR THE ASSESSEE HAS PLACED RELIANCE ON THE RATIO LAID DOWN B Y PUNE BENCH OF THE TRIBUNAL IN PARADISE CONSTRUCTION VS. ADDL.CIT IN ITA NO.233/PN/2011 & 346/PN/2012 RELATING TO ASSESSMENT Y EARS 2007- 08 AND 2008-09, WHEREIN VIDE ORDER DATED 26.06.2013, IT WAS HELD THA T THE ADDITIONAL FLATS WERE TO BE CONSIDERED SEPARATELY WHILE DECIDING THE ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 8 ISSUE OF ALLOWABILITY OF CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE EARLIER SANCTIONED PROJECT. 10. WITHOUT PREJUDICE TO SUBMISSIONS MADE HEREINABOVE, THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINT ED OUT THAT PROPORTIONATE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT MAY BE ALLOWED ON THE COMPLETED 80 FLATS. RELIANCE IN THIS REGARD, W AS PLACED UPON THE RATIO LAID DOWN BY THE THIRD MEMBER DECISION OF T HE TRIBUNAL IN SANGHVI & DOSHI ENTERPRISES VS. ITO (131 ITD 151 (CHEN NAI) AND MUMBAI BENCH OF THE TRIBUNAL IN M/S. ELCTA HOUSING PVT. LTD. VS. DCIT (3649/MUM/2009) AND OTHER DECISIONS, IN THIS REGARD. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINT ED OUT THAT BASED ON 7/12 EXTRACT AND THE LAYOUT PLAN AND ALSO THE AUDITORS CERTIFICATE, THE ASSESSING OFFICER CONSIDERED THE AREA OF THE PLOT AS LESS THAN 1 ACRE THOUGH THE ARCHITECT OF THE BUILDING HAD GIVE N TRIANGULATION METHOD AS BASIS TO BE ADOPTED FOR WORKING O UT THE AREA OF THE PLOT OF LAND. 11. IT WAS POINTED OUT BY THE LEARNED DEPARTMENTAL REPR ESENTATIVE FOR THE REVENUE THAT IT IS NOT UNDERSTOOD AS TO WHY AR CHITECT CERTIFICATE SHOULD BE TREATED AS SACROSANCT. ANOTHER PLE A OF THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS THAT THE MATTER BE SENT BACK TO DO THE MEASUREMENT AND TO DE TERMINE THE AREA OF THE PLOT. IN RESPECT OF THE SECOND ISSUE, THE CONTENT ION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS THAT CBDT HAD DIRECTED THAT ONLY PARTIAL DEDUCTION IS TO BE ALLOWED, BUT THE RIDER WAS THAT THE PROJECT SHOULD BE COMPLETED WITHIN THE STIP ULATED TIME. IN RESPECT OF THE CLAIM OF PROPORTIONATE DEDUCTION, THE LEA RNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE HAS PLACED RELIANCE ON ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 9 THE ORDER OF CIT(A) AND THE DECISION IN CIT VS. BRAHMA AS SOCIATES (2011) 333 ITR 289 (BOM). 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE RAISED IN THE PRESENT APPEAL IS IN RELATION TO TH E ALLOWABILITY OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. UNDER TH E PROVISIONS OF SAID SECTION, CERTAIN CONDITIONS ARE PROVIDED WHICH OUGH T TO BE FULFILLED ENTITLING THE CLAIMANT TO THE CLAIM OF DEDUCTION. FIRST CONDITION UNDER CLAUSE (A) OF SECTION 80IB(10) OF THE ACT IS THE DATE OF START OF COMMENCEMENT OF THE CONSTRUCTION OF THE HOUSIN G PROJECT AND ITS COMPLETION WITHIN THE STIPULATED PERIOD FOR THE PROJECTS WHICH HAVE BEEN APPROVED BY THE LOCAL AUTHORITY ON OR BEFORE 01.04.2 005 AND ON OR AFTER 01.04.2005. THE PROJECT NEEDS TO BE COMPLETED WITHIN 5 YEARS FROM THE END OF FINANCIAL YEAR IN WHICH THE HOUSING PROJEC T WAS APPROVED BY THE LOCAL AUTHORITY AFTER 01.04.2005 AND IF AP PROVED ON OR AFTER 01.04.2004 BUT NOT LATER THAN 31.03.2005, THEN PROJE CT TO BE COMPLETED WITHIN 4 YEARS. AS PER EXPLANATION UNDER THE SAID CLAUS E (A) TO SECTION 80IB(10) OF THE ACT WHERE THE APPROVAL IN RESP ECT OF THE HOUSING PROJECT WAS OBTAINED MORE THAN ONCE, THEN IT IS PROVIDED THAT SUCH HOUSING PROJECT SHALL BE DEEMED TO HAVE BEEN APPR OVED ON THE DATE ON WHICH THE BUILDING PLAN OF SUCH HOUSING PROJECT WA S FIRST APPROVED BY THE LOCAL AUTHORITY. FURTHER, THE DATE OF CO MPLETION OF THE CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT HAS BEEN ISSUED BY THE LOCAL AUTHORITY. 13. UNDER CLAUSE (B) TO SECTION 80IB(10) OF THE ACT, IT IS PROVIDED THAT THE SIZE OF PLOT ON WHICH THE SAID PROJECT IS CONSTRUCTED SHOULD BE MINIMUM AREA OF 1 ACRE. THE ABOVE SAID CONDITIONS WOULD NOT APPLY TO THE HOUSING PROJECT CARRIED ON IN ACCORDANCE WITH THE S CHEME FRAMED ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 10 BY THE CENTRAL GOVERNMENT OR STATE GOVERNMENT FOR RE- CONSTRUCTION OR RE-DEVELOPMENT OF THE EXISTING BUILDING IN AREAS DECLARED TO BE SLUM AREAS UNDER ANY LAW. 14. FURTHER, UNDER CLAUSE (C) TO SECTION 80IB(10) OF THE ACT , IT IS PROVIDED THAT THE MAXIMUM BUILT UP AREA OF EACH RESIDENTIA L UNIT SHALL NOT EXCEED 1500 SQ. FT. UNDER CLAUSE (D) TO SECTION 80IB (10) OF THE ACT, IT IS ENTAIL THAT THE BUILT UP AREA OF THE ESTABLISHMENTS AN D COMMERCIAL SHOPS INCLUDED IN THE HOUSING PROJECT SHOULD NOT BE EXCE EDED 5% OF AGGREGATE AREA OF THE HOUSING PROJECT OR 5000 SQ. FT., WH ICHEVER IS HIGHER. UNDER CLAUSE (E) TO SECTION 80IB(10) OF THE ACT, NO T MORE THAN 1 RESIDENTIAL UNIT IN THE HOUSING PROJECT SHOULD BE ALLOTTE D TO ANY PERSON NOT BEING AN INDIVIDUAL. UNDER CLAUSE (F) TO SECTION 80IB(10) OF THE ACT, CERTAIN CONDITIONS ARE LAID DOWN FOR NOT ALLOTTING T HE FLATS TO THE FAMILY MEMBERS OF AN INDIVIDUAL. 15. IN THE FACTS OF THE PRESENT CASE, THE FIRST OBJECTION RAISED BY THE ASSESSING OFFICER TO DENY THE DEDUCTION UNDER SECTION 80I B(10) OF THE ACT IS THAT THE AREA OF THE PLOT WAS LESS THAN 1 ACRE A ND AS SUCH, THE ASSESSEE HAD NOT FULFILLED THE PROVISIONS LAID DOWN IN CLAUSE (B) TO SECTION 80IB(10) OF THE ACT. THE ASSESSEE DURING THE YE AR UNDER CONSIDERATION, HAD CLAIMED THAT IT HAD COMPLETED THE HOUSIN G PROJECT NAMED VED VIHAR ON A PLOT OF LAND WHICH WAS ADMEASURIN G 4048.46 SQ. MTRS. AS PER TRIANGULATION METHOD, WHICH ADMITTEDLY, WA S MORE THAN 1 ACRE AND HENCE, THE ASSESSEE WAS ENTITLED TO TH E BENEFIT OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 16. ON THE OTHER HAND, THE AREA MENTIONED IN 7/12 EXTR ACT WAS 4000 SQ. MTRS., WHICH AS PER THE ASSESSEE WAS NOT THE E XACT AREA, BUT APPROXIMATE AREA. THE PERUSAL OF THE SANCTIONED PLAN PLACED AT PAG E 1 ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 11 OF THE PAPER BOOK REFLECTS THAT UNDER THE LOCATION PLAN, T HE AREA OF PLOT AS PER 7/12 EXTRACT HAS BEEN NOTED TO BE 4000 SQ. MT RS. ON THE SAID SANCTIONED PLAN ITSELF, THE PLOT AREA AS PER THE TRIANGULA TION METHOD IS 4048.46 SQ. MTRS. IT IS ALSO REPORTED UNDER THE HEADING PLOT AREA CALCULATION THAT THE AREA OF PLOT AS PER 7/12 EXTRACT IS 4000 SQ. MTRS., WHEREAS THE AREA OF PLOT BY CALCULATION WAS 4048.46 SQ. M TRS. THE SAID TABULATION IS CLEARLY AVAILABLE ON THE SANCTIONED PLAN IT SELF WHICH READS AS UNDER:- PLOT AREA CALCULATION AS PER D.C. BY TRIANGULATION METHOD A) 0.5 X 99.30 X 40.77 = 2024.23 SQ.M B) 0.5 X 99.30 X 40.77 = 2024.23 SQ.M _____________________________________________ AREA OF THE PLOT = 4048.46 SQ.M AREA OF PLOT AS PER 7/12 = 4000.00 SQ.M AREA OF PLOT BY CALCULATION = 4048.46 SQ.M 17. THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEPTED BY THE CIT(A) SINCE THE SAID EVIDENCE WAS NOT FILED BEFORE THE ASSESSING OFFICER. THE CIT(A) ACCEPTS THE FACT THAT AS PER 7/12 EXTRACT, THE AREA OF PLOT WAS 4000 SQ. MTRS. AND ON THE SANCTIONED PLAN AS PER THE TR IANGULATION METHOD, THE AREA OF THE PLOT WAS 4048.46 SQ. MTRS. 18. WE FIND THAT WHILE DECIDING SIMILAR ISSUE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT WHERE IT WAS ALLEGED THAT THE AREA ON WHICH THE PROJECT WAS CONSTRUCTED WAS LES S THAN ONE ACRE, THE TRIBUNAL IN TAURUS ENTERPRISES VS. DCIT IN ITA NO.85/ PN/2011 RELATING TO ASSESSMENT YEAR 2007-08, VIDE ORDER DATED 12.04.2012, IT WAS OBSERVED AS UNDER:- 11. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT (A) A ND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CON SIDERED THE ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 12 VARIOUS DECISIONS CITED BY BOTH THE SIDES. THE ONLY DI SPUTE IN THE IMPUGNED APPEAL IS REGARDING THE ALLOWABILITY OF DEDUCTI ON U/S 80-IB(10) SINCE THE AREA ON WHICH THE PROJECT HAS BE EN CONSTRUCTED IS LESS THAN ONE ACRE ACCORDING TO THE R EVENUE AND MORE THAN ONE ACRE AS ARGUED BY THE LEARNED COUNSEL FOR THE ASSESSEE. FROM THE COPY OF THE ASSESSMENT ORDER AS WELL AS THE ORDER OF THE CIT (A) WE FIND THE AREA OF THE PLOT AS PER 7/12 EXTRACT IS 4000 SQ. MTRS., AREA AS PER DEMARCATION BY MUNICIPAL CORPORATION IS 3945 SQ. MTRS., AND AREA OF PLOT BY TRIANGU LATION IS 3945 SQ. MTRS. IT IS THE SUBMISSION OF THE LEARNED COU NSEL FOR THE ASSESSEE THAT AS PER THE FRESH MEASUREMENT DONE BY THE CONCERNED REVENUE AUTHORITIES, AREA OF THE PLOT IS 4123 SQ. M TRS. 11.1. AS PER PROVISIONS U/S. 80 IB(10) AMONG OTHER CO NDITIONS, PROJECT HAS TO BE ON THE SIZE OF PLOT OF LAND WHICH HAS MINIMUM AREA OF ONE ACRE. ACCORDING TO THE AUDIT REPORT FILE D IN FORM NO. 10 CCB, ASSESSEE HAS SHOWN SIZE OF PLOT AT 4125 SQ.M TRS. AS PER COMMENCEMENT CERTIFICATE NO. CC/1136/05 DATED 20 TH JUNE 2005, AREA OF THE PLOT HAS BEEN MENTIONED AS 3945 SQ. MTRS. ACCORDING TO THE CIT(A), AREA OF THE PLOT AS PER 7/12 EXTRACT IS 4000 SQ. MTRS. HOWEVER, ASSESSEE HAS FILED CERTAIN DOCUMEN TS AS ADDITIONAL EVIDENCE AT PAGE NOS. 87 TO 91 OF THE PAPER BOOK, ACCORDING TO WHICH, THE CONCERNED REVENUE AUTHORITIES HAVE PHYSICALLY MEASURED THE SIZE OF THE PLOT ON ACTUAL B ASIS AND FOUND THE ACTUAL SIZE OF PLOT AS 4123 SQ.MTRS. IN OUR OPINION, COMMENCEMENT CERTIFICATE IS NOT THE BASIS FOR ACTUA L MEASUREMENT OF THE PLOT. ACTUAL MEASUREMENT OF THE P LOT CAN BE DECIDED BY DEMARCATION BY RELEVANT COMPETENT REVENUE AUTHORITIES. IN THE CASE OF THE ASSESSEE, THE SAME HAS BEEN CLAIMED TO BE DONE AS MENTIONED ABOVE VIDE DEMARCATI ON APPLICATION DATED 27/12/2011, AND DEMARCATION REPORT PREPARED IN JANUARY 2012 WHEREIN THE SIZE OF THE PLOT HAS BE EN MENTIONED AT 4123 SQ.MTRS. EVEN CBDT CIRCULAR NO. 5 OF 2005 DT . 15.7.2005 (276 ITR 151 AT P 171) SAYS THAT THE AREA LIMIT OF THE PLOT HAS TO BE CONSTRUED WITH REFERENCE TO THE AREA OF THE SITE ON WHICH THE HOUSING PROJECT IS CONSTRUCTED AND NOT WITH REFERENC E TO THE DEMARCATION OF LAND DONE BY THE LAND DEVELOPMENT AUTH ORITY. WE FIND THE A.O AND CIT(A) WERE NOT HAVING ADVANTAGE OF THE DEMARCATION REPORT ABOUT THE AREA OF THE SITE BECA USE THE SAME WAS NOT AVAILABLE WITH THEM AT THE RELEVANT POINT OF TIME. IN ANY CASE, IT GOES TO THE ROOT OF THE ISSUE I.E. SIZE OF THE PLOT. THEREFORE, WE, IN THE INTEREST OF JUSTICE, ADMIT THE ADDITIONAL EVIDENCE AND RESTORE THIS ISSUE TO THE FILE OF THE A.O WITH THE DI RECTION TO DECIDE THE ACTUAL MEASUREMENT OF THE PLOT FOR THE PURPOSE OF ALLOWABILITY OF DEDUCTION U/S. 80 IB (10) AND DECIDE THE ISSUE A FRESH AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. REVENUE AUTHORITIES ARE AT LIBERTY T O VERIFY THE MEASUREMENT DONE BY LAND REVENUE AUTHORITIES AFTER P ROVIDING DUE OPPORTUNITY OF BEING HEARD TO ALL THE CONCERNED PA RTIES. SINCE WE HAVE RESTORED THIS ISSUE ON THE PRELIMINARY ISSUE OF THE MEASUREMENT OF THE PLOT IN QUESTION, WE ARE REFRAINI NG FROM COMMENTING ON THE MERIT OF THE ISSUE. 19. THE TRIBUNAL WHILE DECIDING THE ISSUE HAD ADMITTED TH E ADDITIONAL EVIDENCE I.E. FRESH MEASUREMENT DONE BY THE CONC ERNED ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 13 REVENUE AUTHORITY AND RESTORED THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO DECIDE ACTUAL MEASUREMENT OF T HE PLOT FOR THE PURPOSE OF ALLOWABILITY OF DEDUCTION UNDER SECTION 80IB(1 0) OF THE ACT AND DECIDE THE ISSUE AFRESH. IT WAS ALSO OBSERVED BY THE TRIBUNAL THAT THE REVENUE AUTHORITIES WERE AT LIBERTY TO VERIFY THE MEASUREMENT DONE BY THE LAND REVENUE AUTHORITY AFTER PROVIDING THE DUE OPPORTUNITY OF HEARING TO ALL THE CONCERNED PARTIES. 20. NOW, COMING TO THE FACTS OF THE PRESENT CASE, 7/12 EXTRACT IN THE CASE OF ASSESSEE IS THE RECORD OF THE REVENUE AUTHORITIE S IN WHICH, THE AREA OF PLOT NOTED TO BE 4000 SQ. MTRS. HOWEVER, THE AS SESSEE CLAIMS THAT AS PER THE PHYSICAL MEASUREMENTS, THE PLOT AREA WA S 4048.46 SQ. MTRS. ACCORDINGLY, WE RESTORE THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE ACTUAL MEASUREMENT OF THE PLOT FOR THE PURPOSE OF ALLOWING CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND DECIDE THE ISSUE AFRESH AFTER GIVING REASO NABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS AT LIBERTY TO FURNISH THE CERTIFICATE FROM THE REVENUE AUTHORITIES IN RESP ECT OF ITS CLAIM OF AREA OF THE PLOT OF LAND. THE ASSESSING OFFICER IS ALSO AT LIBERTY TO VERIFY THE MEASUREMENT DONE BY THE REVENUE AUTHOR ITIES AND DECIDE THE ISSUE AFTER AFFORDING REASONABLE OPPORTUNITY TO THE PARTIES. 21. NEXT OBJECTION RAISED BY THE ASSESSING OFFICER WAS WIT H REGARD TO THE NON-COMPLETION OF THE PROJECT WITHIN STIPULATED PERIOD. THE BUILDING PLANS OF THE SAID PROJECT WERE SANCTIONED ON 21.05 .2004 AS PER THE COMMENCEMENT CERTIFICATE NO.CC/0726/04 FOR THE CONSTRUCTION OF 80 FLATS. SUBSEQUENTLY, THE ASSESSEE AG AINST THE TDR RIGHTS BOUGHT REVISED ITS SANCTIONED PLAN IN THE YEAR 200 9 VIDE COMMENCEMENT CERTIFICATE NO.CC/3611/08, DATED 16.03.2009 U NDER WHICH, 12 MORE FLATS OVER ORIGINALLY SANCTIONED 80 FLATS WERE ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 14 SANCTIONED TO BE CONSTRUCTED IN THE EXISTING BUILDING NOS. A AND B. THE ASSESSEE CLAIMS TO HAVE COMPLETED THE CONSTRUCTION OF 80 FLATS, AGAINST WHICH, IT HAD RECEIVED THE OCCUPANCY CERTIFICATE DA TED 30.03.2009 IN BUILDING NOS.A AND B. HOWEVER, THE CONSTRUCTIO N OF THE ADDITIONAL 12 FLATS WAS NOT COMPLETED BY 30.03.2009. WHERE THE REVISED COMMENCEMENT CERTIFICATE RELATED TO THE SAME EXIS TING PROJECT BEING CONSTRUCTED BY THE ASSESSEE, THE ASSESSING OFFICER DENIED THE DEDUCTION CLAIMED UNDER SECTION 80IB(10) OF THE ACT. IN V IEW OF THE EXPLANATION (1) TO SECTION 80IB(10) OF THE ACT, IN CASES WHER E THE APPROVAL OF THE CONSTRUCTION OF THE HOUSING PROJECT IS OB TAINED MORE THAN ONCE, THEN THERE IS A DEEMING PROVISION THAT THE AP PROVAL OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE DEEMED TO BE ON THE DATE ON WHICH THE BUILDING PLANS OF THE PROJECT WERE FIRST APPR OVED BY THE LOCAL AUTHORITY. IN THE FACTS OF THE PRESENT CASE BEFORE US, THE FIRST APPROVAL FOR THE CONSTRUCTION OF 80 FLATS WAS GIVEN BY THE PMC ON 21.05.2004. THEREAFTER, THE ASSESSEE RECEIVED ANOTHER CO MMENCEMENT CERTIFICATE DATED 16.03.2009 FOR THE CONSTRUCTION OF 12 MOR E FLATS AGAINST THE TDR RIGHTS. ADMITTEDLY, IN RESPECT OF THE SAID HOUSING PROJECT, THE FIRST APPROVAL WAS GRANTED ON 21.05.2004. TH EN AS PER CLAUSE (2) TO SECTION 80IB(10)(A) OF THE ACT, WHERE THE HOUSI NG PROJECT HAS BEEN APPROVED BY THE LOCAL AUTHORITY ON OR AFTER 0 1.04.2004 BUT BEFORE 31.03.2005, THEN SUCH PROJECT SHALL BE COMPLETED WIT HIN 4 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH, THE HOUSI NG PROJECT WAS APPROVED BY THE LOCAL AUTHORITY. THE PMC HAD APPRO VED ON 21.05.2004 FOR 80 FLATS AND CONSEQUENTLY, THE HOUSING PRO JECT WAS TO BE COMPLETED BY 31.03.2009 UNDER THE PROVISIONS OF THE AC T. THE ASSESSEE CLAIMS THAT IT HAS COMPLETED THE PROJECT WITHIN THE STIPULATED PERIOD I.E. BEFORE 31.03.2009 AS IT HAD RECEIVED THE OCCUPAN CY CERTIFICATE PART-I, DATED 30.03.2009 FOR 80 FLATS. IN RESP ECT OF THE ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 15 ADDITIONAL 12 FLATS, THE ASSESSEE CLAIMS THAT IT WAS NOT ENT ITLED TO THE CLAIM OF DEDUCTION ALLOWABLE UNDER SECTION 80IB(10) OF THE ACT AND IT HAD NOT SO CLAIMED DEDUCTION AGAINST THE SAID 12 FLATS IN B UILDING NOS.A AND B SINCE THE SAME WERE NOT COMPLETED WITHIN THE STIPULATED TIME. THE SAID ADDITIONAL 12 FLATS WERE CONSTRUCTED BY THE ASSESSEE PURSUANT TO PURCHASE OF TDR RIGHTS AS PER THE AGREEME NT DATED 18.12.2008, COPY OF WHICH IS PLACED AT PAGES 25 TO 49 OF TH E PAPER BOOK. THE MAHARASHTRA CHAMBER OF HOUSING INDUSTRY HAD SOUGHT A CLARIFICATION FROM THE GOVT. OF INDIA IN RESPECT OF THE DEVELO PER UTILIZING TDR RIGHTS ON EXISTING PROJECTS AND IT WAS REQUESTED TH AT EVEN THE UTILIZATION OF TDR RIGHTS ON THE EXISTING HOUSING PROJECT OR ANY ADDITIONAL CONSTRUCTION ON THE EXISTING PROJECTS SUBJECT TO FULFILLME NT OF OTHER STIPULATIONS BE MADE ELIGIBLE FOR EXEMPTION UNDER SEC TIONS 10(23)(C) AND 80IB(10) OF THE ACT. THE CBDT VIDE LETTER DAT ED 04.05.2001 HAD CLARIFIED THAT THE ADDITIONAL HOUSING PROJECT ON EXISTING HOUSING PROJECT SITE COULD QUALIFY AS INFRASTRUCTU RE FACILITY UNDER SECTIONS 10(23)(C) AND 80IB(10) OF THE ACT, PROVIDED IT WAS TAKEN UP AS SEPARATE UNDERTAKING HAVING SEPARATE BOOKS OF AC COUNT SO AS TO ENSURE THE CORRECT PROFITS, COULD BE ENTERTAINED FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. 22. THE ISSUE ARISING BEFORE US IS THAT ANY SCENARIO, WHERE THE ASSESSEE HAD BOUGHT THE TDR RIGHTS AND HAD BEEN SANC TIONED TO CONSTRUCT 12 ADDITIONAL FLATS IN THE EXISTING BUILDING NOS.A AN D B OF THE SAID PROJECT AND WHERE IT HAD ALREADY COMPLETED THE ORIGINALLY SANCTIONED 80 FLATS WITHIN THE STIPULATED PERIOD, THE ASSESS EE WAS ELIGIBLE TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF TH E ACT. THE ASSESSEE HAD CONSTRUCTED 80 FLATS ORIGINALLY SANCTION ED BY THE COMMENCEMENT CERTIFICATE DATED 21.05.2004 BEFORE 31.03.20 09 AND ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 16 THE PMC HAD ISSUED OCCUPANCY CERTIFICATE ON 30.03.2009 FOR THE SAID 80 FLATS IN BUILDING NOS.A AND B. THE ASSESSEE THUS, WAS EN TITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RESPECT OF THE SAID 80 FLATS IN BUILDING NOS.A AND B WHICH WERE COMPLET ED WITHIN THE STIPULATED PERIOD AS PROVIDED UNDER SECTION 80IB(10)(B ) OF THE ACT, FOR WHICH AN OCCUPANCY CERTIFICATE WAS ALSO ISSUED BY THE LOCAL AUTHORITY. MERELY BECAUSE THE ASSESSEE HAD RECEIVED T HE SANCTION FOR THE CONSTRUCTION OF 12 ADDITIONAL FLATS IN THE SAME BUILDING IT SELF AGAINST THE PURCHASE OF TDR RIGHTS, WHICH ADMITTEDLY, WA S NOT CONSTRUCTED BEFORE 31.03.2009 DOES NOT DIS-ENTITLE THE AS SESSEE TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT IN RES PECT OF THE ORIGINALLY SANCTIONED 80 FLATS. THE PROVISIONS OF SECTION 80IB(10) OF THE ACT ARE BENEVOLENT AND HAVE TO BE INTERPRETED IN THE M ANNER WHICH IS BENEFICIAL TO THE ASSESSEE. FURTHER, THE ASSESSEE ADMITTE DLY, HAS NOT CLAIMED ANY DEDUCTION IN RESPECT OF BALANCE 12 FLATS WH ICH WERE NOT CONSTRUCTED BEFORE 31.03.2009. IN THE ENTIRETY OF THE AB OVE FACTS AND CIRCUMSTANCES, WE HOLD THAT THE ASSESSEE IS ENTITLED TO T HE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT ON THE COMP LETION OF THE PROJECT WHICH COMPRISED OF CONSTRUCTION OF 80 FLATS, WHICH W AS ORIGINALLY SANCTIONED VIDE COMMENCEMENT CERTIFICATE DATED 2 1.05.2004 AGAINST WHICH, THE OCCUPANCY CERTIFICATE DATED 30.03.2009 H AS BEEN ISSUED. UNDER THE PROVISIONS OF SECTION 80IB(10)(A) OF THE AC T, THE ASSESSEE HAD TO COMPLETE THE CONSTRUCTION ON OR BEFORE 31.03.2009 AND THE ASSESSEE HAVING BEEN ISSUED THE OCCUPANCY CER TIFICATE DATED 30.03.2009 HAD ALSO COMPLIED WITH THE SAID PROVISIONS OF THE SAID ACT AND WAS ENTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, SUBJECT TO FULFILLMENT OF THE BASIC CONDITION THAT T HE PLOT AREA OF THE PROJECT WAS ONE ACRE OR MORE. WE HAVE ALSO REM ITTED THE SAID ISSUE OF MEASUREMENT OF THE PLOT BACK TO THE FILE OF ASSES SING OFFICER ITA NO.805/PN/2013 LATE SHRI KISHANCHAND VASWANI 17 AND IN CASE, IT IS ESTABLISHED THAT THE ASSESSEE HAS FULFILLED THE SAID CONDITION, WHEREIN AREA OF THE PLOT ON WHICH THE PROJECT H AS BEEN CONSTRUCTED IS ONE ACRE OR MORE, THEN THE ASSESSEE WOULD BE E NTITLED TO THE CLAIM OF DEDUCTION UNDER SECTION 80IB(10) OF THE ACT. 23. THE ASSESSEE HAS RAISED AN ALTERNATE PLEA AS TO ALLO WANCE OF PROPORTIONATE DEDUCTION ON ACCOUNT OF THE FLATS CONSTRUC TED, IS NOT MAINTAINABLE IN EITHER CASE, WHERE THE CLAIM OF THE ASSESSEE UNDER SECTION 80IB(10) OF THE ACT HAS BEEN FOUND TO BE MAINTA INABLE. HOWEVER, IF THE ASSESSEE FAILS TO JUSTIFY THE BASIC CONDITION OF THE AREA OF PLOT BEING ONE ACRE OR MORE, EVEN THE ALTERNATE PLEA O F THE ASSESSEE IS NOT MAINTAINABLE. GROUNDS OF APPEAL RAISED BY THE ASSE SSEE ARE THUS, ALLOWED AS INDICATED ABOVE. 24. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF DECEMBER, 2014. SD/- SD/- (R.K. PANDA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 31 ST DECEMBER, 2014. GCVSR COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE