ITO, Wd.1(3), Pune V. Rajendra Construction, Pune

ITA 980/PUN/2012

• Counselvise Citation: 98024514 RSA 2012
• Duration Of Justice: 2 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-10-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 16-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: VIPIN GUJARATHI
• Keywords: Revised return
• Section: 143(3); 133A; 80IB; 139(5); 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NOS.979 & 980/PN/2012 (ASSESSMENT YEARS : 2007-08 & 2008-09) INCOME TAX OFFICER, WARD 1 (3), PUNE. . APPELLANT VS. RAJENDRA CONSTRUCTION, L.P. CLASSIC BUILDING, OFFICE NO.405, 4 TH FLOOR, PUNE SOLAPUR ROAD, HADAPSAR, PUNE 28. PAN : AAGFR8347B . RESPONDENT DEPARTMENT BY : MR. S. P. WALIMBE ASSESSEE BY : MR. VIPIN GUJARATHI ORDER PER G. S. PANNU, AM BOTH THE CAPTIONED APPEALS BY THE REVENUE ARE DIREC TED AGAINST TWO SEPARATE BUT SIMILARLY WORDED ORDERS OF THE COMMISS IONER OF INCOME TAX (APPEALS)-I, PUNE DATED 09.11.2011 WHICH, IN TURN, HAVE ARISEN FROM THE RESPECTIVE ASSESSMENT ORDERS DATED 21.12.2009 AND 2 0.12.2010 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEARS 2007-08 AND 2008 -09. 2. IN BOTH THE APPEALS, THE SUBSTANTIVE DISPUTE REL ATES TO ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT IN RESPECT OF THE PROFITS DERIVED BINAWAT TOWNSHIP PROJECT. FOR BOTH THE ASSESSMENT YEARS, T HE FACTS AND CIRCUMSTANCES AS WELL AS THE OBJECTIONS RAISED BY T HE ASSESSING OFFICER TO DENY THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT ARE SIMILAR AND THEREFORE APPEAL FOR ASSESSMENT YEAR 2007-08 IS TAKEN-UP AS T HE LEAD CASE. ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 3. IN BRIEF, THE RELEVANT FACTS ARE THAT ASSESSEE I S A PARTNERSHIP FIRM WHICH IS ENGAGED IN THE BUSINESS OF CONSTRUCTION ACTIVITY . DURING THE YEAR UNDER CONSIDERATION, ASSESSEE WAS ENGAGED IN CONSTRUCTION OF TWO PROJECTS, NAMELY, BINAWAT COMPLEX AT HADAPSAR AND BINAWAT TOWNSHIP ALSO AT HADAPSAR, PUNE. THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE A CT WHICH IS THE SUBJECT- MATTER OF CONTROVERSY BEFORE US RELATES TO THE PROF ITS DERIVED FROM THE HOUSING PROJECT BINAWAT TOWNSHIP. THE SALIENT FEATURES OF THE PROJECT ARE AS FOLLOWS. THE LOCAL AUTHORITY I.E. PUNE MUNICIPAL CORPORATION (IN SHORT PMC) APPROVED THE LAYOUT PLAN OF THE PROJECT ON 19.10.2004 WHEREB Y THE GROSS AREA OF THE PLOT WAS 8488 SQ.MTRS.. THEREAFTER, THE BUILDING PLAN F OR THE PROJECT WAS FIRST APPROVED ON 05.11.2004 WHICH ENVISAGED CONSTRUCTION OF FIVE BUILDINGS, NAMELY, A, C, D, E-1, AND E-2 COMPRISING OF 36, 36, 36, 14 AND 14 FLATS RESPECTIVELY TOTALING TO 136, ON A PLOT SIZE OF 848 8 SQ.MTRS. THE SAID PROJECT WAS REVISED FROM TIME TO TIME AND ULTIMATELY ON 22. 12.2006, SIX BUILDINGS WERE APPROVED, NAMELY, A, C, D, E-1, E-2 AND E-3 COMPRIS ING OF 38, 27, 35, 14, 14 AND 14 FLATS RESPECTIVELY TOTALING TO 142, ON A PLO T SIZE OF 8488 SQ.MTRS. THE FIRST BUILDING PLAN APPROVAL DATED 05.11.2004 COMPR ISING OF 136 FLATS WAS ON A PLOT SIZE OF 8488 SQ.MTRS. AND SO ALSO THE BUILDING PLAN APPROVAL DATED 22.12.2006, WHICH COMPRISED OF 142 FLATS. THE ASSE SSEE HAS CLAIMED THE DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO TH E AFORESAID PROJECT COMPRISING OF CONSTRUCTION OF 142 RESIDENTIAL UNITS. THE DEDU CTION FOR ASSESSMENT YEAR 2007-08 AMOUNTED TO RS.65,41,626/- 4. SUBSEQUENT TO THE BUILDING PLAN APPROVAL DATED 2 2.12.2006 ON A PLOT AREA OF 8488 SQ.MTRS., ASSESSEE ACQUIRED THREE ADDI TIONAL PLOTS ADMEASURING 1130.14 SQ.MTRS. ADJOINING THE EXISTING PLOT. THE ADJOINING PLOTS WERE AMALGAMATED AND A REVISED LAYOUT PLAN WAS APPROVED ON 20.12.2007 ON THE TOTAL AMALGAMATED PLOT AREA OF 9618.14 SQ.MTRS. ON SUCH ADDITIONAL AREA OF PLOT, PMC APPROVED FURTHER BUILDING PLANS COMPRISIN G OF THREE NEW WINGS, NAMELY, F, G, & H COMPRISING OF 15 UNITS ON 23.06.2 008. THE SAID APPROVAL ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 WAS IN ADDITION TO CONSTRUCTION OF 142 RESIDENTIAL UNITS APPROVED ON 22.12.2006. THE SUBSEQUENT THREE BUILDINGS, NAMELY , F, G & H COMPRISING OF 15 UNITS, WHOSE BUILDING PLAN WAS APPROVED ON 23.06 .2008 HAS NOT BEEN CONSIDERED BY THE ASSESSEE FOR THE PURPOSE OF AVAIL ING DEDUCTION U/S 80IB(10) OF THE ACT AS ACCORDING TO THE ASSESSEE, IT WAS SEC OND PHASE OF THE PROJECT AND WAS INDEPENDENT OF THE FIRST PHASE OF THE PROJE CT COMPRISING OF CONSTRUCTION OF 142 RESIDENTIAL UNITS WHICH WAS APP ROVED ON 22.12.2006. THE ASSESSING OFFICER, HOWEVER, WAS OF THE OPINION THAT THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT HAS TO BE EXAMINED WITH REFEREN CE TO THE PROJECT CONSISTING OF NINE BUILDINGS, NAMELY, A, C, D, E-1, E-2, E-3, F, G & H COMPRISING OF 157 FLATS, BECAUSE ACCORDING TO HIM, THE TWO WERE NOT I NDEPENDENT PROJECTS. AS PER THE ASSESSING OFFICER, ASSESSEE WAS REQUIRED TO COMPLETE THE CONSTRUCTION OF 157 FLATS WITHIN THE PERIOD PRESCRIBED IN SECTIO N 80IB(10)(A) OF THE ACT INSTEAD OF 142 FLATS FOR WHICH THE COMPLETION CERTI FICATE WAS OBTAINED BY THE ASSESSEE. THE ASSESSING OFFICER REFERRED TO CLAUSE (A) OF SECTION 80IB(10) OF THE ACT AND CONCLUDED THAT THE HOUSING PROJECT COMP RISING OF 157 FLATS OUGHT TO HAVE BEEN COMPLETED BY 31.03.2009. THE ASSESSING O FFICER NOTED THAT AS PER THE COMPLETION CERTIFICATES ISSUED BY PMC, ONLY 142 FLATS WERE COMPLETED BY 31.03.2009 WHEREAS THE PROJECT OF THE ASSESSEE CONS ISTED OF CONSTRUCTION OF 157 FLATS. THEREFORE, ACCORDING TO HIM, ASSESSEES PROJECT VIOLATED THE CONDITION PRESCRIBED IN CLAUSE (A) OF SECTION 80IB( 10) OF THE ACT AND ACCORDINGLY, THE CLAIM OF DEDUCTION HAS BEEN DENIED . 5. THE AFORESAID OBJECTION OF THE ASSESSING OFFICER HAS NOT FOUND FAVOUR WITH THE CIT(A) WHO HAS UPHELD THE PLEA OF THE ASSE SSEE THAT THE PROJECT INVOLVING CONSTRUCTION OF BUILDINGS A, C, D, E-1, E -2 & E-3 CONSISTING OF 142 FLATS ON A PLOT OF LAND ADMEASURING 8488 SQ.MTRS. W AS A SEPARATE AND INDEPENDENT PROJECT WHICH FULFILLED ALL THE REQUIRE MENTS OF SECTION 80IB(10) OF THE ACT. THE CIT(A) ACCEPTED THE PLEA OF THE ASSES SEE THAT THE THREE ADDITIONAL BUILDINGS COMPRISING OF F, G & H CONSTRU CTED ON THE AMALGAMATED ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 PLOT WAS A SEPARATE PROJECT, INDEPENDENT OF THE EAR LIER APPROVED BUILDING PLANS. ACCORDINGLY, THE CIT(A) UPHELD THE PLEA OF THE ASSESSEE FOR DEDUCTION U/S.80IB(10) OF THE ACT, AGAINST WHICH REVENUE IS I N APPEAL BEFORE US. 6. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATI VE APPEARING FOR THE REVENUE HAS POINTED OUT THAT THE ASSESSEE WAS NOT C ORRECT IN CARVING OUT THE CONSTRUCTION OF 142 FLATS IN BUILDINGS A, C, D, E-1 , E-2 & E-3 AS A SEPARATE PROJECT WHEREAS THE PLAN OF DEVELOPMENT AND CONSTRU CTION OF 157 FLATS COMPRISING OF NINE BUILDINGS, NAMELY, A, C, D, E-1, E-2, E-3, F, G & H HAS TO BE UNDERSTOOD AS A SINGLE PROJECT. ACCORDING TO TH E LEARNED DEPARTMENTAL REPRESENTATIVE, ASSESSEE HAS CONSIDERED 142 FLATS C OMPRISING OF SIX BUILDINGS AS A PROJECT MERELY FOR THE PURPOSES OF CLAIMING DE DUCTION U/S 80IB(10) OF THE ACT BECAUSE IF THE PROJECT CONSISTING OF NINE BUILD INGS IS TO BE CONSIDERED, THE SAME WOULD NOT FULFILL THE CONDITION OF TIMELY COM PLETION OF CONSTRUCTION PRESCRIBED IN CLAUSE (A) OF SECTION 80IB(10) OF THE ACT. 7. ON THE OTHER HAND, THE LEARNED REPRESENTATIVE FO R THE RESPONDENT- ASSESSEE HAS POINTED OUT THAT THE CIT(A) MADE NO MI STAKE IN HOLDING THAT THE BUILDING PLANS APPROVED ON THE ORIGINAL LAYOUT SIZE OF 8488 SQ.MTRS. COMPRISING OF CONSTRUCTION OF SIX BUILDINGS OF 142 FLATS WAS A SEPARATE PROJECT AND THE SAME QUALIFIES FOR THE CLAIM OF DEDUCTION U/S 80IB( 10) OF THE ACT. ACCORDING TO THE LEARNED REPRESENTATIVE, THE BUILDING PLAN APPRO VAL DATED 23.06.2008 WHICH RELATED TO ADDITIONAL THREE BUILDINGS, NAMELY , F, G & H WAS A SEPARATE PROJECT AND ASSESSEE HAS NOT CLAIMED ANY DEDUCTION IN RESPECT OF THE SAME. IT WAS POINTED OUT THAT BOTH THE PROJECTS ARE ON DIFFE RENT AREAS OF PLOT AND THE BUILDINGS ARE ALSO SEPARATED BY SPACE. IT IS ALSO SOUGHT TO BE POINTED OUT THAT EVEN THE BUILDING PLANS ARE QUITE DIFFERENT INASMUC H AS BUILDINGS A, C, D, E-1, E-2 & E-3 CONTAINED IN THE BUILDING PLAN APPROVAL D ATED 22.11.2006 CONSIST OF GROUND FLOOR PLUS 3 FLOORS COMPRISING OF FLATS ONLY . THE GROUND FLOOR INCLUDES FLATS AS WELL AS PARKING AREA. WHEREAS THE THREE A DDITIONAL BUILDING, NAMELY, ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 F, G & H APPROVED ON 23.06.2008 ARE DIFFERENT. BUI LDING F HAS GROUND FLOOR ONLY AND INCLUDES 6 SHOPS. BUILDING G IS PARKING P LUS 2 FLOORS AND THE GROUND FLOOR DOES NOT INCLUDE ANY FLAT. BUILD H IS A SING LE ROW HOUSE AND IS A STAND ALONE UNIT. THEREFORE, IN THIS MANNER, IT IS SOUGH T TO BE POINTED OUT THAT THE THREE BUILDINGS, NAMELY, F, G & H APPROVED ON 23.06 .2008, ARE ARCHITECTURALLY DIFFERENT AND DISTINCT FROM THE EARLIER APPROVED SI X BUILDINGS, WHICH HAS BEEN CONSIDERED AS A SEPARATE HOUSING PROJECT FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. THE LEARNED REPRESENTATIVE FU RTHER EMPHASIZED THAT THE PROJECT CONSISTING OF THE SAID SIX BUILDINGS COMPLI ES WITH ALL THE CONDITIONS PRESCRIBED IN SECTION 80IB(10) OF THE ACT, AND THER EFORE, THE CIT(A) CORRECTLY HELD THE ISSUE IN FAVOUR OF THE ASSESSEE. THE LEAR NED REPRESENTATIVE POINTED OUT THAT THE CIT(A) HAS RELIED UPON THE FOLLOWING D ECISIONS OF THE TRIBUNAL IN HOLDING THE ISSUE IN FAVOUR OF THE ASSESSEE :- (I) SUBHASH S. BAFNA VS. ITO (ITA NO.533/PN/07 DAT ED 21.08.2009 ; (II) APPORVA PROPERTIES & ESTATES PVT. LTD. VS. DCI T (ITA NO.113/PN/07) DATED 21.08.2008; (III) SAROJ SALES CORPORATION 115 TTJ 485 (MUM); AN D, (IV) DCIT VS. BRIGADE ENTERPRISES 119 TTJ 269 (BANG ). APART THEREFROM, IT IS POINTED OUT THAT THE JUDGEME NT OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. VANDANA PROPERTIE S, 353 ITR 36 (BOM) AS WELL AS THE JUDGEMENT OF THE HONBLE MADRAS HIGH CO URT IN THE CASE OF VISWAS PROMOTER PRIVATE LIMITED VS. ACIT, 255 CTR 149 (MAD ) ALSO SUPPORT THE ULTIMATE CONCLUSION DRAWN BY THE CIT(A). IN THIS R EGARD, IT HAS ALSO BEEN SUBMITTED THAT PUNE BENCH OF THE TRIBUNAL IN THE CA SE OF RUNWAL MULTIHOUSING PRIVATE LIMITED VS. ACIT VIDE ITA NO.1015, 1016 & 1 017/PN/2011 ORDER DATED 21.11.2012 AND THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MUDHIT MADANLAL GUPTA VS. ACIT, (2011) 51 DTR 217 (MUM) AL SO SUPPORT THE PROPOSITION RELIED UPON BY THE CIT(A) IN ALLOWING R ELIEF TO THE ASSESSEE. ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE POINT TO BE CONSIDERED BY US IS AS TO WHETHER THE SIX BUILDINGS COMPRISING OF 142 FLATS CONSTRUCTED ON A PLOT OF LAND ADMEASURING 8488 SQ.M TRS. IS A SEPARATE PROJECT OR THE ENTIRE NINE BUILDINGS, INCLUDING THE BALANCE THREE BUILDINGS COMPRISING OF 15 UNITS ON A CONSOLIDATED PLOT SIZE OF 9618.14 SQ .MTRS. IS TO BE CONSIDERED AS A SINGULAR PROJECT. IF WE UPHOLD THE LATTER, IT WO ULD MEAN THAT THE HOUSING PROJECT OF THE ASSESSEE IS COMPRISING OF NINE BUILD INGS INVOLVING CONSTRUCTION OF 157 UNITS, AND THE COMPLIANCE TO SECTION 80IB(10 )(A) OF THE ACT WOULD HAVE TO BE SEEN ACCORDINGLY. THE AFORESAID EXERCISE IS REQUIRED TO BE CARRIED OUT FOR THE PURPOSES OF EXAMINING ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT WHICH IS CONFINED TO THE PROFITS DERIVED FR OM THE DEVELOPMENT AND CONSTRUCTION OF SIX BUILDINGS CONSISTING OF 142 UNI TS. NOTABLY, SECTION 80IB(10) OF THE ACT ALLOWS EXEMPTION OF PROFITS DERIVED FROM DEVELOPMENT AND CONSTRUCTION OF BUILDING OF A HOUSING PROJECT, SU BJECT OF COURSE TO FULFILLMENT OF THE CONDITIONS PRESCRIBED THEREIN. SO HOWEVER, THE EXPRESSION HOUSING PROJECT, IS NOT DEFINED IN SECTION 80IB(10) OF THE ACT, A SITUATION WHICH HAS ALSO BEEN NOTED BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VANDANA PROPERTIES (SUPRA). THE FOLLOWING DISCUSSION IN TH E ORDER OF THE HONBLE BOMBAY HIGH COURT IS WORTHY OF NOTICE :- 18. THE EXPRESSION HOUSING PROJECT IS NEITHER DE FINED UNDER SECTION 2 OF THE ACT NOR UNDER SECTION 80IB(10) OF THE ACT. EVEN UNDER THE MUMBAI MUNICIPAL CORPORATION ACT, 1988 AS ALSO UNDE R THE DEVELOPMENT CONTROL REGULATIONS FOR GREATER MUMBAI, 1991, THE E XPRESSION HOUSING PROJECT IS NOT DEFINED. THEREFORE, THE EXPRESSION HOUSING PROJECT IN SECTION 80IB(10) WOULD HAVE TO BE CONSTRUED AS COMMONLY UND ERSTOOD. 19. AS RIGHTLY CONTENDED BY MR. INAMDAR, LEARNED SE NIOR ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE AND MR. MISTRI, LEARNED SENIOR ADVOCATE AND MR. JOSHI, LEARNED ADVOCATE APPEARING ON BEHALF OF THE INTERVENORS, THE EXPRESSION HOUSING PROJECT IN COMMON PARLANCE WOU LD MEAN CONSTRUCTING A BUILDING OR A GROUP OF BUILDINGS CONSISTING OF SEVE RAL RESIDENTIAL UNITS. IN FACT, THE EXPLANATION IN SECTION 80IB(10) SUPPORTS THE CO NTENTION OF THE ASSESSEE THAT THE APPROVAL GRANTED TO A BUILDING PLAN CONSTI TUTES APPROVAL GRANTED TO A HOUSING PROJECT. THEREFORE, IT IS CLEAR THAT CONSTR UCTION OF EVEN ONE BUILDING WITH SEVERAL RESIDENTIAL UNITS OF THE SIZE NOT EXCE EDING 1000 SQURE FEET (E BUILDING IN THE PRESENT CASE) WOULD CONSTITUTE A H OUSING PROJECT UNDER SECTION 80IB(10) OF THE ACT. 20. THE QUESTION, THEN, TO BE CONSIDERED IS, WHETHE R CONSTRUCTION OF E BUILDING IS AN INDEPENDENT HOUSING PROJECT OR E XTENSION OF THE HOUSING ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 PROJECT ALREADY EXISTING ON THE PLOT IN QUESTION. I T IS THE CONTENTION OF THE REVENUE THAT SINCE THE APPROVAL FOR CONSTRUCTION OF E BUILDING WAS GRANTED BY THE LOCAL AUTHORITY SUBJECT TO THE CONDITIONS SE T OUT IN THE FIRST APPROVAL GRANTED ON 12 TH MAY 1993 FOR CONSTRUCTION OF A AND B BUILDING, CON STRUCTION OF E BUILDING MUST BE CONSIDERED TO BE THE EXTENSION OF THE EARLIER HOUSING PROJECT FOR WHICH APPROVAL WAS GRANTED PRIOR TO 1 ST OCTOBER 1998 AND, THEREFORE, THE BENEFIT OF SECTION 80IB(10) CANNOT B E GRANTED. THERE IS NO MERIT IN THE ABOVE ARGUMENT, BECAUSE, WHEN THE PLANS FOR A, B, C AND D BUILDINGS WERE APPROVED DURING THE PERIOD FROM 1993 TO 1996, CONSTRUCTION OF E BUILDING WAS NOT EVEN CONTEMPLATED ON THE PLOT IN Q UESTION. IT IS ONLY IN THE YEAR 2001 WHEN THE STATUS OF THE LAND WAS CONVERTED FROM SURPLUS VACANT LAND INTO WITHIN THE CEILING LIMIT LAND BY THE STATE GOV ERNMENT, AN ADDITIONAL BUILDING COULD BE CONSTRUCTED ON THE PLOT IN QUESTI ON AND ACCORDINGLY BUILDING PLAN FOR CONSTRUCTION OF E BUILDING WAS SUBMITTED AND THE SAME WAS APPROVED BY THE LOCAL AUTHORITY ON 11 TH OCTOBER 2002. 9. IN TERMS OF THE AFORESAID, IT WOULD BE SEEN THA T AS PER THE HONBLE BOMBAY HIGH COURT, THE EXPRESSION HOUSING PROJECT IN SECTION 80IB(10) OF THE ACT HAS TO BE CONSTRUED AS COMMONLY UNDERSTOOD. IN-FACT, AS PER THE HONBLE BOMBAY HIGH COURT, CONSTRUCTION OF EVEN ONE BUILDING WITH SEVERAL RESIDENTIAL UNITS OF THE PRESCRIBED SIZE WOULD CONS TITUTE A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80IB(10) OF THE ACT. SIMIL ARLY, THE HONBLE MADRAS HIGH COURT IN THE CASE OF VISWAS PROMOTERS PVT. LTD . VS. ACIT, (2013) 255 CTR 149 (MAD) ALSO NOTED THAT THE EXPRESSION HOUSI NG PROJECT IS NOT DEFINED IN SECTION 80-IB(10) OF THE ACT, AND, BY REFERRING TO THE DEFINITION OF HOUSING PROJECT IN THE EXPLANATION TO SECTION 80HHBA OF TH E ACT, OBSERVED THAT THE EXPRESSION HOUSING PROJECT UNDER SECTION 80-IB(10 ) OF THE ACT CAN BE UNDERSTOOD AS A REFERENCE TO ANY BUILDING, OTHER THAN ROAD, BRIDGE OR OTHER STRUCTURE. ACCORDING TO THE HONBLE HIGH COURT EACH BLOCK IN A LARGER PROJECT MAY ALSO BE TAKEN AS AN INDEPENDENT BUILDING AND HE NCE A HOUSING PROJECT FOR THE PURPOSE OF CONSIDERING THE CLAIM OF DEDUCTI ON U/S. 80-IB(10) OF THE ACT. 10. AGAIN, THE HONBLE MADRAS HIGH COURT IN THE CAS E OF CIT VS. ARUN EXCELLO FOUNDATIONS (P) LTD. (2013) 212 TAXMAN 342 (MAD) NOTED THE ABSENCE OF DEFINITION OF THE EXPRESSION HOUSING PR OJECT IN SECTION 80-IB(10) OF THE ACT AND HELD THAT HOUSING PROJECT IS TO BE UNDERSTOOD AS A BUILDING PROJECT, WHICH NEED NOT BE RESTRICTED TO A RESIDENTIAL PROJECT; THAT THE PROJECT MAY BE EITHER OUT AND OUT RESIDENTIAL OR CO MMERCIAL PROJECT OR MIX OF ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 BOTH; AND, AS PER THE HONBLE HIGH COURT A HOUSING PROJECT, PURELY OF COMMERCIAL NATURE, APPROVED BY A LOCAL AUTHORITY, IS ALSO A HOUSING PROJECT ENTITLED TO DEDUCTION U/S. 80-IB(10) OF THE ACT. 11. IN-FACT, AT THIS POINT WE MAY REFER TO THE DECI SION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF MUDHIT MADANLAL GUPT A (SUPRA) WHEREIN A SIMILAR ISSUE HAS BEEN CONSIDERED. IN THIS CASE, ASSESSEE H AD CONSTRUCTED A PROJECT WITH FOUR WINGS, NAMELY, A, B, C AND D. THE CLAIM O F DEDUCTION U/S. 80-IB(10) OF THE ACT WAS DENIED ON THE GROUND THAT ASSESSEE W AS NOT ABLE TO OBTAIN THE COMPLETION CERTIFICATE IN RESPECT OF WING D. THE REVENUE CANVASSED THAT THE PROJECT WAS A SINGLE PROJECT CONSISTING OF FOUR WIN GS AND NON-COMPLETION OF WING D, DISENTITLED THE ASSESSEE FROM THE CLAIM O F DEDUCTION U/S. 80-IB(10) OF THE ACT. THE TRIBUNAL, AFTER NOTICING THAT THE EXPR ESSION HOUSING PROJECT IS NOT DEFINED IN SECTION 80-IB(10) OF THE ACT, REFERRED T O THE DICTIONARY MEANING OF THE EXPRESSION HOUSING PROJECT AND HELD THAT EVEN A SEGREGATED BLOCK OF BUILDINGS CAN ALSO BE CONSTRUED AS A HOUSING PROJE CT FOR THE PURPOSES OF SECTION 80-IB(10) OF THE ACT AND, DEDUCTION IS TO B E ALLOWED IF ALL THE CONDITIONS OF SECTION 80IB(10) OF THE ACT ARE FULFILLED. IT W AS EXPLAINED THAT HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VARIOUS GR OUP OF BUILDINGS CONSTRUCTED ON A PARTICULAR LAND BUT IT CAN ALSO BE A PARTICULA R BUILDING OR BUILDINGS, WHICH IS PART OF A LARGER PROJECT. WHATEVER PORTION OF THE L ARGER PROJECT WHICH SATISFIES THE CONDITIONS OF SECTION 80-IB(10) OF THE ACT WAS HELD TO BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSES OF SECTION 80-IB (10) OF THE ACT. THE FOLLOWING OBSERVATIONS OF THE TRIBUNAL ARE WORTHY OF NOTICE : - COMING TO THE SECOND OBJECTION RAISED BY THE REVEN UE I.E., THAT THE ASSESSEE HAS NOT COMPLETED THE PROJECT. THIS OBJECT ION IS RAISED ON THE BASIS THAT SINCE THE PROJECT CONSISTED OF FOUR WINGS I.E. , A, B, C AND D AND SINCE COMPLETION CERTIFICATE HAS NOT BEEN FILED FOR D WIN G AND, THEREFORE, THE PROJECT CANNOT BE SAID TO HAVE BEEN COMPLETED. THIS WOULD L EAD ONE TO THE QUESTION AS TO WHAT IS THE MEANING OF A HOUSING PROJECT. LEG ISLATURE HAS NOT PROVIDED ANY DEFINITION OF THE HOUSING PROJECT AND, THEREFOR E, THE DEFINITION HAS TO BE CONSTRUED BY MAKING REFERENCE TO THE DICTIONARY AND AS LONG AS THE SEGREGATED BLOCKS ARE BEING ELIGIBLE FOR DEDUCTION UNDER S. 80-IB(10), THEN SAME SHALL BE CONSTRUED AS ELIGIBLE HOUSING PROJECT AND CONSTRUCTED ON A PARTICULAR LAND BUT IT CAN ALSO BE A PARTICULAR BUI LDING OR ANY BUILDING WHICH IS PART OF THE LARGE PROJECT. WHATEVER PORTION OF THE HOUSING PROJECT IS OTHERWISE ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 FOUND TO BE ELIGIBLE HAS TO BE CONSIDERED AS A HOUS ING PROJECT FOR THE PURPOSE OF DEDUCTION UNDER S. 80-IB(10). 12. SIMILAR VIEW HAS BEEN TAKEN BY THE PUNE BENCH O F THE TRIBUNAL IN THE CASE OF M/S RUNWAL MULTIHOUSING PVT. LTD. (SUPRA). IN THIS CASE, ASSESSEE HAD OBTAINED SANCTION FOR CONSTRUCTION OF BUILDINGS A T O F AND 17 ROW HOUSES IN A SINGLE PLAN FROM THE CONCERNED LOCAL AUTHORITY, I .E. PUNE MUNICIPAL CORPORATION. LATER, ASSESSEE CONSTRUCTED BUILDINGS A, C, D, E AND 17 ROW HOUSES BUT DID NOT CONSTRUCT BUILDINGS B AND F. TH E CLAIM OF DEDUCTION U/S 80-IB(10) OF THE ACT WAS DENIED ON THE GROUND THAT BUILDINGS B AND F WERE NOT CONSTRUCTED AND THUS THE CONDITION OF COMPLETION OF HOUSING PROJECT BEFORE THE STIPULATED DATE WAS NOT SATISFIED BY THE ASSESSEE. THE TRIBUNAL HELD THAT IF THE PORTION COMPLETED BY THE ASSESSEE COMPLIED WITH THE REQUIREMENTS OF SECTION 80-IB(10) OF THE ACT, THE SAME SHOULD BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSE OF DEDUCTION U/S. 80-IB(10) OF THE ACT. THE RELEVANT DISCUSSION IN THE ORDER OF THE TRIBUNAL IS AS UNDER : - 21. SO FAR AS THE SECOND GRIEVANCE OF THE REVENUE THAT BUILDING NOS. B AND F ARE NOT CONSTRUCTED AND THEREFORE THE PROJE CT HAS NOT BEEN COMPLETED AS PER THE APPROVED PLAN, WE FIND THE BUILDINGS A, C, D, E AND THE 17 ROW HOUSES ARE CONSTRUCTED ON A PLOT AREA OF MORE THAN 1 ACRE, NONE OF THE FIATS/ROW HOUSES IS BEYOND 1500 SQ.FT. AND THE COMP LETION THEREOF HAS BEEN OVER BEFORE 31-03-2008 IN VIEW OF OUR FINDINGS ABOV E. 21.1 WE FIND THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF M/S. RAHUL CONSTRUCTION CO. VS. ITO - ITA NO.L250/PN/2009 AND ITA NO.707/PN/2010 ORDER DATED 30-03-2012 HAS HELD AS UNDER : '8. CONSIDERING THE ABOVE SUBMISSION, AND HAVING GO NE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED UPON, WE FIND THAT THE ISSUE INVOL VED IS AS TO WHETHER THE ASSESSEE HAD COMPLETED THE HOUSING PROJECT WITH IN THE PRESCRIBED TIME LIMIT SINCE THE DATE OF FIRST APPROVAL OF THE PROJECT BY THE PMC. 9. TO DECIDE THE ABOVE ISSUE, IT IS NECESSARY TO DE CIDE FIRSTLY AS TO WHAT WOULD BE FIRST DATE OF APPROVAL OF THE HOUSING PROJECT BY THE PMC TO COMPUTE THE TIME LIMIT PRESCRIBED FOR COMPLETION OF THE PROJECT TO TAKE BENEFIT OF DEDUCTION U/S. 80 IB (10) OF THE AC T. THERE IS NO DISPUTE ON SOME MATERIAL FACTS THAT OUT OF 16 BUILDINGS IN THE HOUSING PROJECT OF THE ASSESSEE ONLY 11 BUILDINGS WERE COMPLETED WITHI N THE PRESCRIBED TIME LIMIT UPTO 31 ST MARCH 2008. THE LAY OUT PLAN IN RESPECT OF ENTIRE COMPLEX WAS SANCTIONED BY PMC VIDE ORDER NO. DPO/45 /D/646 DATED 3.4.2003 AND THE BUILDING PLAN WAS SANCTIONED VIDE COMMENCEMENT CERTIFICATE NO. 4269 DT. 29.4.2003. ADMITTEDLY, THE TERM 'HOUSING PROJECT' HAS NOT BEEN DEFINED IN THE INCOME TAX ACT BUT IN THE CONTEXT OF DEDUCTION U/S. 80IB(10) AN EXPLANATION HAS BEEN PROVIDED BELOW ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 CLAUSE (A) TO SUB-SECTION (10) TO SECTION 80 IB. FO R A READY REFERENCE, THE SAID EXPLANATION IS BEING REPRODUCED HEREUNDER : (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PR OJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHIC H THE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPR OVED BY THE LOCAL AUTHORITY. (II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETI ON CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS ISSUED BY THE LOCAL AUTHORITY.' THE VERY READING OF ABOVE EXPLANATION (I), IT MAKES CLEAR THAT FOR THE ELIGIBILITY OF THE DEDUCTION PROVIDED U/S. 80 IB (1 0) OF THE ACT, THE DATE ON WHICH BUILDING PLAN OF SUCH HOUSING PROJECT HAS BEEN FIRSTLY APPROVED BY THE LOCAL AUTHORITY WILL BE TREATED AS APPROVAL IN RESPECT OF THE HOUSING PROJECT. WHEN WE READ EXPLANATION (II) WITH EXPLANATION (I) IT MAKES CLEAR THAT COMPLETION OF CONSTRUCTION OF S UCH BUILDING PLAN FIRST APPROVED BY THE LOCAL AUTHORITY WILL BE TAKEN THE D ATE OF COMPLETION OF CONSTRUCTION OF SUCH BUILDING PLAN WHEN COMPLETION CERTIFICATE HAS BEEN ISSUED BY THE LOCAL AUTHORITY. IN OTHER WORDS, IN CLAUSE (I) OF THE EXPLANATION, IT HAS BEEN MADE CLEAR THAT WOULD BE T HE HOUSING PROJECT, FIRST APPROVAL OF WHICH, BY THE LOCAL AUTHORITY WOU LD BE TAKEN AS STARTING POINT OF THE HOUSING PROJECT AND IN CLAUSE NO. (II) , IT HAS BEEN MADE CLEAR THAT WHAT WOULD BE THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT ISSUED BY LOCAL AUTHORITY TO COMPUT E THE PRESCRIBED TIME LIMIT FOR VERIFICATION OF ELIGIBILITY OF ASSES SEE FOR THE CLAIMED DEDUCTION. IN VIEW OF THE ABOVE EXPLANATION, WE FIN D SUBSTANCE IN THE CONTENTION OF THE ID. A.R. THAT APPROVAL OF THE HOU SING PROJECT AND APPROVAL OF BUILDING PLAN ARE TWO DIFFERENT CONCEPT S. THE BANGALORE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. BRIGA DE ENTERPRISES (P) LTD. (SUPRA) HAS HELD THAT PLAN FOR DEVELOPMENT IS ONLY A WORK ORDER AND NOT FINAL PLAN SANCTIONED BY THE LOCAL AUTHORIT Y. FOR ANY PROJECT, THERE COULD NOT HAVE BEEN A PLAN WITHOUT SUBMISSION OF THE DETAILED BUILDING PLANS, BY THE ARCHITECT AND WHAT REQUISITE DETAILS REQUIRED TO BE SUBMITTED FOR APPROVAL OF THE BUILDING PLANS BY THE LOCAL AUTHORITY. IN THE CASE OF SAROJ SALES ORGANIZATION VS. ITO (SUPRA ), BEFORE MUMBAI BENCH, ALMOST SIMILAR FACTS AS BEFORE US WERE THERE . THE COMMENCEMENT CERTIFICATE IN RESPECT OF SIX WINGS IN BLOCK 'N' WAS SEPARATELY RECEIVED BY THE ASSESSEE AND ALL THE FLA TS IN BLOCK WERE LESS THAN 1000 SQ.FT. IT WAS HELD BY THE TRIBUNAL T HAT IT IS NOT UPON TO THE REVENUE TO INCLUDE BLOCK BC AS PART OF BLOCK 'N' JUST TO DENY RELIEF TO THE ASSESSEE U/S. 80 IB(10). THE TRIBUNAL OBSERV ED THAT BLOCK 'BC' WAS MEANT FOR HIGHER STRATA OF THE SOCIETY HAD BEEN KEPT SEPARATELY BY ASSESSEE IN ALL THE RESPECT, ASSESSEE HAD NOT CLAIM ED RELIEF U/S. 80IB IN RESPECT OF BLOCK 'BC' . IN THE CASE OF MUDHIT MA DANLAL GUPTA VS. ACIT (SUPRA ) BEFORE THE MUMBAI BENCH, IT HAS BEEN HELD THAT THE HOUSING PROJECT DOES NOT NECESSARILY HAVE TO BE VAR IOUS GROUP OF BUILDINGS CONSTRUCTED ON THAT PARTICULAR LAND, BUT IT CAN ALSO BE A PARTICULAR BUILDING OR ANY BUILDING WHICH IS PART O F A LARGE PROJECT. IT HAS BEEN FURTHER HELD THAT WHATEVER PORTION OF THE HOUS ING PROJECT IS OTHERWISE FOUND TO BE ELIGIBLE HAS TO BE CONSIDERED AS A HOUSING PROJECT FOR THE PURPOSE OF DEDUCTION U/S. 80 IB (10 ) OF THE ACT. SIMILAR VIEW HAS BEEN EXPRESSED BY MUMBAI BENCH OF THE TRIB UNAL IN THE CASE OF VANDANA PROPERTIES VS. ACIT (SUPRA). ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 10. IN VIEW OF ABOVE DISCUSSION, WE COME TO THE CONCLUSION THAT FOR VERIFICATION OF ELIGIBILITY OF BENEFIT CLAIMED U/S. 80 IB (10) OF THE ACT BY THE ASSESSEE ON BUILDINGS AL TO A5 IN 'ATUI NAGAR' AND BUILDINGS BL TO B6 IN 'RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LT D.', THE ASSESSING AUTHORITY HAS TO VERIFY AS TO WHEN THE BUILDING PLA NS FOR THESE BUILDINGS WERE FIRSTLY APPROVED BY THE LOCAL AUTHORITY AND TA KING THE SAID DATE OF APPROVAL A STARTING POINT, HE HAS TO VERIFY AS TO W HETHER THESE BUILDINGS WERE COMPLETED WITHIN THE PRESCRIBED TIME LIMIT I.E . 31 ST MARCH 2008 ON THE BASIS OF THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT ISSUED BY THE PMC. WHEN WE EXAMINE THE FACT S OF THE PRESENT CASE UNDER THE ABOVE BACKGROUND, WE FIND THAT THE A UTHORITIES BELOW HAVE NOT DISPUTED THE FACT FURNISHED IN THIS REGARD BY THE ASSESSEE THAT UNDER THE PROJECT 'ATUI NAGAR' CONSISTING OF BUILDI NGS AL TO A5, THE FIRST BUILDING PLAN FOR A TYPE WAS APPROVED BY THE PMC ON 29.4.2003 VIDE COMMENCEMENT CERTIFICATE NO. 4269 (PAGE NO. 4 OF TH E PAPER BOOK). HOWEVER, ACTUAL CONSTRUCTION OF A TYPE BUILDING WAS EXECUTED AS PER THE REVISED PLAN VIDE NO. C.C. 4101/27/6/2003 (PAGE NO. 5 OF THE PAPER BOOK). THE SIZE OF THE PLOT ON WHICH THE A TY PE BUILDING I.E. AL TO A6 HAVE BEEN CONSTRUCTED IS 1,39,466 SQ.FT. THE PRO JECT A TYPE BUILDING I.E. AL TO A5 CONSISTS OF 360 RESIDENTIAL UNITS AND THE CONSTRUCTION HAS BEEN COMPLETED BETWEEN 10.1.2005 TO 31.8.2005 (PAGE NOS. 6 TO 9 OF PAPER BOOK). THE AUTHORITIES BELOW HAVE ALSO NOT DI SPUTED THIS MATERIAL FACT THAT RESIDENTIAL UNITS HAS A MAXIMUM BUILT UP AREA OF 1500 SQ.FT. LIKEWISE, THESE MATERIAL FACTS THAT B GROUP BUILDIN GS IN 'RAHUL NISARG CO-OPERATIVE HOUSING SOCIETY LTD.,' HAVE BEEN CONST RUCTED ON LAND AREA OF 138203 SQ.FT., HAS NOT BEEN DENIED BY THE A UTHORITIES BELOW. THEY HAVE ALSO NOT DENIED THESE MATERIAL FACTS THAT THE FIRST BUILDING PLAN WAS SANCTIONED ON 29.4.2003 VIDE COMMENCEMENT CERTIFICATE NO. 4269 ISSUED BY THE PMC (PAGE NO. 16 OF THE PAPE R BOOK). THE OTHER MATERIAL FACTS LIKE ACTUAL CONSTRUCTION WAS E XECUTED AS PER THE REVISED PLAN SANCTION ON 20 TH MARCH 2004 VIDE CC NO. 2225 (PAGE NO. 17), THE PROJECT CONSISTS OF 396 FLATS AND CONSTRUC TION OF THESE FLATS HAVE BEEN COMPLETED ON 14.7.2006 AS PER THE COMPLET ION CERTIFICATE ISSUED BY THE PMC (PAGE NOS. 13 TO 18 OF PAPER BOOK ) ARE NOT IN DISPUTE. THE AUTHORITIES BELOW HAVE ALSO NOT DENIED THAT BUILT UP AREA OF EACH OF THESE FLATS DOES NOT EXCEED 1500 SQ.FT. IT IS ALSO NOT IN DISPUTE THAT BOTH THE PROJECTS ARE ENTIRELY A RESID ENTIAL PROJECT AND THERE IS NO COMMERCIAL AREA THEREIN. UNDER THE ABOV E CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE IS VERY MUCH E NTITLED TO THE CLAIMED DEDUCTION U/S. 80 IB (10) OF THE ACT ON THE BUILDINGS AL TO A5 IN 'ATUL NAGAR' AND BUILDINGS BL TO B6 IN 'RAHUL NISAR G CO-OPERATIVE HOUSING SOCIETY LTD.' THE ISSUE IS THEREFORE DECIDE D IN FAVOUR OF THE ASSESSEE. WE THUS WHILE SETTING ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE ISSUE, DIRECT THE A.O TO ALLOW THE CLA IMED DEDUCTION U/S. 80 IB(10) IN QUESTION. THE RELATED GROUNDS ARE ACCO RDINGLY ALLOWED.' 21.2 WE FIND THAT BANGALORE BENCH OF THE ITAT IN THE CASE OF DY.CIT VS. BRIGADE ENTERPRISES (P) LTD. [119 TTJ 26 9 (BANG.)] HAS OBSERVED AS UNDER : DEDUCTION UNDER S.80IB - INCOME FROM DEVELOPING AND BUILDING HOUSING PROJECT -DIFFERENT UNITS OF A GROUP PROJECT - WHERE SOME OF THE RESIDENTIAL UNITS IN A BIGGER HOUSING PROJECT, TREA TED INDEPENDENTLY, ARE ELIGIBLE FOR RELIEF UNDER S.80IB(10), RELIEF SHOULD BE GIVEN PRO RATA AND SHOULD NOT BE DENIED BY TREATING THE BIGGER PROJECT AS A SINGLE UNIT, MORE SO, WHEN ASSESSEE OBTAINED ALL SANCTIONS, PERM ISSIONS AND CERTIFICATES FOR SUCH ELIGIBLE UNITS SEPARATELY - A SSESSEE UNDERTOOK A DEVELOPMENT PROJECT IN AN AREA OF 22 ACRES 19 GUNTA S CONSISTING OF 5 ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 RESIDENTIAL BLOCKS, ROW HOUSES, OAK TREE PLACE, A C LUB, A COMMUNITY CENTRE, A SCHOOL AND A PARK AND CLAIMED DEDUCTION U NDER S. 80IB(10) IN RESPECT OF TWO RESIDENTIAL UNITS ONLY WHICH IF TAKE N SEPARATELY, WERE ELIGIBLE FOR THE RELIEF-AO TREATED THE ENTIRE PROJE CT AS A SINGLE UNIT AND DENIED RELIEF UNDER S.80IB(10) IN ENTIRETY - CIT(A) ALLOWED RELIEF UNDER S. 80IB(10) TREATING THE SAID TWO UNITS AS INDEPEND ENT UNITS - JUSTIFIED - MATERIAL ON RECORD SHOWED THAT THE VARIOUS LOCAL AU THORITIES DULY INSPECTED THE PLOT AND SANCTIONED PLAN FOR EACH OF THE BLOCKS SEPARATELY - GROUP HOUSING APPROVAL WAS APPROVAL OF A MASTER PLAN AS A CONCEPT - FURTHER, THE USE OF THE WORDS 'RESIDENT IAL UNITS' IN CL.(C) OF S.80IB(10) MEANS THAT DEDUCTION SHOULD BE COMPUTED UNIT-WISE - THEREFORE, IF A PARTICULAR UNIT SATISFIES THE CONDI TION OF S.8OIB, THE ASSESSEE IS ENTITLED FOR DEDUCTION AND IT SHOULD BE DENIED IN RESPECT OF THOSE UNITS ONLY WHICH DO NOT SATISFY THE CONDITION S - AGAIN, THE ACCOUNTING PRINCIPLES WOULD ALSO MANDATE RECOGNITIO N OF PROFITS FROM EACH UNIT SEPARATELY'. 21.3 IN VIEW OF THE ABOVE DECISIONS, WE ARE OF THE CONSIDERED OPINION THAT WHATEVER PORTION COMPLETED BY THE ASSESSEE WHI CH SATISFIES THE CONDITIONS PRESCRIBED U/S.80IB(10) IS ELIGIBLE FOR DEDUCTION. THE VARIOUS DECISIONS RELIED ON BY THE REVENUE ARE DISTINGUISHA BLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE ACCORDINGLY HOLD THAT THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S.80IB(10) IN RESPECT OF BUILDING N O.A,C,D,E AND THE 17 ROW HOUSES. THE GROUNDS RAISED BY THE ASSESSEE ON THIS ISSUE ARE ACCORDINGLY ALLOWED. 13. FROM THE AFORESAID DISCUSSION, IT CAN BE INFERR ED THAT IN ORDER TO UNDERSTAND THE MEANING OF THE EXPRESSION HOUSING P ROJECT FOR THE PURPOSE OF SECTION 80-IB(10) OF THE ACT, IN THE ABSENCE OF ANY DEFINITION SECTION 80-IB(10) OF THE ACT OR EVEN IN THE LOCAL DEVELOPMENT CONTROL RULES OF THE PMC, IT HAS TO BE CONSTRUED AS COMMONLY UNDERSTOOD. THE PLEA OF THE REVENUE THAT EXPRESSION HOUSING PROJECT SHOULD BE UNDERSTOOD T O MEAN THE PROJECT AS APPROVED BY THE LOCAL AUTHORITY IS NOT JUSTIFIED BECAUSE EVIDENTLY THE DEVELOPMENT CONTROL RULES OF THE LOCAL AUTHORITY I.E. PMC DO NOT DEFINE A HOUSING PROJECT. IN-FACT, FROM THE DISCUSSION IN THE FOREGOING PARAGRAPHS IT IS EVIDENT THAT EVEN A BUILDING OR A GROUP OF BUILDING S COMPRISED IN A LARGER PROJECT, APPROVED BY THE LOCAL AUTHORITY CAN BE C ONSTRUED AS A HOUSING PROJECT FOR THE PURPOSE OF CONSIDERING A CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT. CONSIDERED IN THIS BACKGROUND, IN THE INST ANT CASE, THE PLEA OF THE ASSESSEE THAT PROJECT APPROVED ON 22.12.2006 COMPRI SING OF SIX BUILDINGS WITH 142 UNITS IS AN INDEPENDENT PROJECT FOR THE PURPOSE OF CONSIDERING A CLAIM OF DEDUCTION U/S. 80-IB(10) OF THE ACT CANNOT BE SHUT- OUT MERELY BECAUSE ON A ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 LATER DATE PMC APPROVED THREE ADDITIONAL BUILDINGS WITH 15 UNITS ON AN ADDITIONAL PLOT AREA ON 23.06.2008 ALONG WITH THE E ARLIER SIX BUILDINGS. THEREFORE, WHILE EVALUATING THE COMPLIANCE WITH THE CONDITION OF COMPLETION OF CONSTRUCTION OF THE PROJECT CONTAINED IN SECTION 80 -IB(10)(A) OF THE ACT, WE UPHOLD ASSESSEES PLEA THAT PROJECT APPROVED ON 22 .12.2006 BY PMC COMPRISING OF 142 UNITS OF SIX BUILDINGS IS TO BE C ONSTRUED AS A HOUSING PROJECT, ESPECIALLY WHEN THE CLAIM FOR DEDUCTION U /S. 80-IB(10) OF THE ACT IS CONFINED TO THE PROFITS OF SUCH PROJECT ONLY. 14. AT THIS STAGE, WE MAY ALSO REFER TO THE CASE OF M/S APPORVA PROPERTIES AND ESTATES PVT. LTD. (SUPRA). IN THE CASE OF M/S APPORVA PROPERTIES AND ESTATES PVT. LTD. (SUPRA), ASSESSEE CLAIMED DEDUCTI ON U/S 80IB(10) OF THE ACT IN RESPECT OF A PROJECT BY THE NAME OF KUMAR KARISH MA PHASE II. THE ASSESSING OFFICER NOTED THAT THE LAYOUT OF THE PROJ ECT WAS APPROVED BY THE LOCAL AUTHORITY IN 1995 AND CONSTRUCTION STARTED TH EREON AND BEFORE 1998 CONSTRUCTION OF B WING AND RESIDENTIAL BUILDINGS A-1 TO A-4 WAS COMPLETED. IT WAS FURTHER NOTED BY THE ASSESSING OFFICER THAT AS PER THE LAYOUT PLAN, ASSESSEE HAD TO CONSTRUCT THE RESIDENTIAL BUILDING A-5 AS IT HAPPENED TO BE NEXT UNIT IN ORDER OF SEQUENCE. AT THAT POINT OF T IME, ASSESSEE REGROUPED THE WINGS FALLING UNDER THE PROJECT BY CONSTRUING THE B UILDINGS A-1 TO A-4 AS PHASE-I AND BUILDINGS A-5 TO A-12 AS PHASE-II OF TH E PROJECT. SINCE ASSESSEES CLAIM FOR DEDUCTION WAS LIMITED TO THE P HASE-II OF THE PROJECT, THE ASSESSING OFFICER EXAMINED AS TO WHETHER PHASE-I AN D PHASE-II WERE TWO DIFFERENT AND DISTINCT PROJECTS OR THAT THEY WERE M ERELY BIFURCATED TO FACILITATE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT IN RELAT ION PHASE-II. AS PER THE ASSESSING OFFICER, PHASE-II WAS NOT A UNIQUE AND DI STINCT PROJECT BUT MERELY A PART OF THE INITIALLY CONCEIVED SINGULAR PROJECT FO R WHICH LAYOUT PLAN WAS SANCTIONED MUCH BEFORE 1998 I.E. IN 1995. IT WAS A LSO NOTED THAT THERE WAS SEPARATE PROVISION FOR AMENITIES, ETC. FOR PHASE-II PROJECT. IN THE BACKGROUND OF SUCH OBJECTIONS, THE TRIBUNAL UPHELD ASSESSEES CLAIM FOR DEDUCTION U/S ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 80IB(10) OF THE ACT IN RELATION TO THE PHASE-II PRO JECT BY MAKING THE FOLLOWING DISCUSSION :- .THAT LEAVES US A QUESTION AS TO WHETHER KUMAR KARISHMA IS TO BE TREATED AS AN INTEGRAL AND INSEPARABLE PROJECT O R VARIOUS PROJECTS OF THIS PROJECT CAN BE CONSIDERED ON A STANDALONE BASIS. O NE OF THE MAJOR ARGUMENTS IN SUPPORT OF THE ENTIRE PROJECT BEING TR EATED AS ONE PROJECT IS COMMON FACILITY USED BY THE FLAT OWNERS BUT THEN WE ARE UNABLE TO APPRECIATE AS TO HOW MERE FACT OF FACILITIES BEING COMMON CAN BE USED AGAINST THE ASSESSEE'S CLAIM OF SEPARATE PROJECT. IT IS VERY W ELL POSSIBLE THAT THE AMENITIES OF ONE PROJECT CAN BE USED BY THE RESIDEN TS OF OTHER PROJECT AND THAT ALONE CANNOT ALTER THE CHARACTER OF INDEPENDEN T PROJECT. AS WE MENTIONED EARLIER, THERE ARE NUMBER OF DECISIONS OF COORDINATE BENCHES INCLUDING SAROJ SALES ORGANISATION VS. ITO (2008) 1 15 TTJ (BOM) 485 AND CIT VS. BRIGADE ENTERPRISES (2008) 119 TTJ (BANG) 2 69 WHEREIN IT IS HELD THAT AS LONG AS DIFFERENT BLOCKS CAN SATISFY THE RE QUIREMENT OF SEC. 80IB(10) ON A STANDALONE BASIS, THEIR CLAIM CANNOT BE REJECT ED MERELY ON THE GROUND THAT THEY ARE PART OF LARGER LAYOUT. IN THE PRESEN T CASE, THERE IS NO DISPUTE THAT THE ASSESSES HAS CONSTRUCTED DIFFERENT BLOCKS OF RESIDENTIAL BUILDINGS AND HE HAS NOT CLAIMED DEDUCTION U/S 80IB(10) IN RESPEC T OF BUILDING WHICH WAS NOT ELIGIBLE FOR THE SAME. IT IS NOT DISPUTED THAT SEPARATE SANCTIONS WERE GRANTED BY THE PUNE MUNICIPAL CORPORATION FOR THE P HASE-LL OF THE PROJECT AND THAT IT SATISFIES THE CONDITIONS OF SEC. 80IB(10) O N A STANDALONE BASIS. AS HAS BEEN HELD BY THE COORDINATE BENCHES THE CONCEPT OF HOUSING PROJECTS DOES NOT MEAN THAT THERE SHOULD BE A GROUP OF BUILDINGS AND ONLY THEN THE SAME CAN BE COLLECTIVELY CALLED AS HOUSING PROJECTS. IN THE CASE OF SAROJ SALES ORGANISATION (SUPRA), WHILE DEALING WITH THIS CONTE NTION THE COORDINATE BENCH HAS OBSERVED AS FOLLOWS. 15. IN OUR CONSIDERED OPINION, THE AFORESAID DECISI ON OF THE TRIBUNAL IS FULLY APPLICABLE TO THE FACTS OF THE PRESENT CASE INASMUC H IT IS QUITE EVIDENT THAT SEPARATE BUILDING SANCTION HAS BEEN GRANTED BY PMC IN RELATION TO THE PROJECT OF SIX BUILDINGS ON WHICH ASSESSEE HAS CLAIMED DEDU CTION U/S 80IB(10) OF THE ACT AND THE BUILDINGS PLAN FOR THE THREE BUILDINGS IS APPROVED ON A SEPARATE DATE, ON WHICH THE ASSESSEE HAS NOT CLAIMED ANY DED UCTION U/S 80IB(10) OF THE ACT. IT IS ALSO CLEAR THAT ON A STANDALONE BAS IS, THE PROJECT CONSISTING OF SIX BUILDINGS INVOLVING CONSTRUCTION OF 142 FLATS SATIS FIES THE CONDITION PRESCRIBED IN SECTION 80IB(10)(A) OF THE ACT. 16. APART FROM THE AFORESAID, FACTUALLY SPEAKING AL SO ASSESSEE HAS POINTED OUT THAT THE PROJECT COMPRISING OF SIX BUILDINGS (1 42 FLATS) AND THE PROJECT OF THREE BUILDINGS (15 UNITS) ARE DISTINCT AND CANNOT BE CONSIDERED AS ONE PROJECT. ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 IT IS SOUGHT TO BE POINTED OUT THAT THE TWO PROJECT S ARE SEPARATED BY SPACE; THE BUILDING PLAN OF THE SIX BUILDINGS ARE GROUND PLUS THREE FLOORS CONSISTING OF FLATS ONLY. GROUND FLOOR INCLUDES FLATS AS WELL AS PARK ING AREA. IN CONTRAST, THE THREE ADDITIONAL BUILDINGS APPROVED SUBSEQUENTLY ARE ARCH ITECTURALLY DIFFERENT. BUILDING F APPROVED SUBSEQUENTLY HAS A GROUND FLOOR ONLY AND INCLUDES SIX SHOPS ADMEASURING ABOUT 109 SQUARE METERS. BUILDIN G G IS PARKING PLUS TWO FLOORS. THE GROUND FLOOR DOES NOT INCLUDE ANY FLA T. BUILDING H IS A SINGLE ROW HOUSE AND A STANDALONE UNIT ADMEASURING ABOUT 90 SQ UARE METERS. THE AFORESAID FACTS WERE POINTED OUT DURING THE COURSE OF HEARING BEFORE US, AND IT SHOWS THAT THE TWO PROJECTS ARE DISTINCT. 17. CONSIDERED IN THE AFORESAID LIGHT, IN OUR VIEW, THE PROJECT OF SIX BUILDINGS INVOLVING CONSTRUCTION OF 142 FLATS IS TO BE CONSID ERED AS AN INDEPENDENT HOUSING PROJECT IN ORDER TO EVALUATE ASSESSEES CLA IM FOR DEDUCTION U/S 80IB(10) OF THE ACT. THUS, IN OUR VIEW, THE CIT(A) MADE NO MISTAKE IN CONCLUDING THAT ASSESSEE WAS ELIGIBLE FOR CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO THE PROFITS DERIVED FROM CON STRUCTION OF 142 FLATS COMPRISED IN SIX BUILDINGS, WHOSE BUILDING PLANS WA S FIRST APPROVED ON 05.11.204. IN THIS MANNER, THE ACTION OF THE CIT(A ) IS HEREBY AFFIRMED. 18. IN VIEW OF THE AFORESAID DISCUSSION, WE HEREBY AFFIRM THE ORDER OF THE CIT(A) ALLOWING ASSESSEES CLAIM FOR DEDUCTION U/S 80IB(10) OF THE ACT OF RS.65,41,626/- FOR ASSESSMENT YEAR 2007-08. THUS, REVENUE FAILS ON THIS GROUND. 19. ANOTHER OBJECTION RAISED BY THE ASSESSING OFFIC ER WAS THAT THE DEDUCTION U/S 80IB(10) OF THE ACT IN RELATION TO TH E HOUSING PROJECT, BINAWAT TOWNSHIP WAS NOT CLAIMED BY THE ASSESSEE IN THE ORI GINAL RETURN OF INCOME FILED. IN THIS REGARD, THE FACTUAL POSITION IS THA T ORIGINALLY FOR ASSESSMENT YEAR 2007-08, ASSESSEE FILED A RETURN OF INCOME ON 29.10 .2007 DECLARING TOTAL ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 INCOME OF RS.1,34,784/- WHICH WAS TAKEN-UP FOR SCRU TINY ASSESSMENT. IN THE SAID RETURN OF INCOME, ASSESSEE HAD NOT RECOGNIZED ANY REVENUE FROM BINAWAT TOWNSHIP PROJECT AS THE ACCOUNTING WAS BEING DONE O N PROJECT COMPLETION METHOD. THEREFORE, THE ENTIRE RECEIPTS IN RELATION TO THE SAID PROJECT WERE SHOWN AS ADVANCES AND ALL THE EXPENDITURE INCURRED WAS SHOWN AS WORK-IN- PROGRESS. DURING THE PENDENCY OF THE SCRUTINY ASSE SSMENT, A SURVEY ACTION U/S 133A OF THE ACT WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 3 RD MARCH, 2009. IN THE COURSE OF SUCH A SURVEY ACTIO N, ASSESSEE FIRM ADMITTED CERTAIN ADDITIONAL INCOMES FOR THE ASSESSM ENT YEARS 2007-08, 2008- 09 AND 2009-10 ON THE GROUND THAT THE PROFITS DERIV ED FROM BINAWAT TOWNSHIP PROJECT WERE TAXABLE AND NOT ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. AT THIS STAGE, IT WOULD ALSO BE PERTINENT TO NOTE THAT IN THE COURSE OF SURVEY, THE ASSESSING OFFICER CAME TO CONCLUDE THAT THE REVENUE AS WELL AS EXPENSES OF THE BINAWAT TOWNSHIP PROJECT WERE LIABLE TO BE RECO GNIZED AND TAXED IN ASSESSMENT YEAR 2007-08 SINCE MORE THAN 75% OF THE PROJECT WAS COMPLETE. IN THE REVISED RETURN OF INCOME FILED FOR ASSESSMEN T YEAR 2007-08 AFTER THE SURVEY ON 31.03.2009, ASSESSEE HAS RECOGNIZED THE R EVENUES AS WELL AS EXPENSES FOR THE PROJECT BINAWAT TOWNSHIP. ON THIS ASPECT OF THE MATTER, THERE IS NO DISPUTE. SO HOWEVER, IN THE RETURN OF INCOME SO REVISED, ASSESSEE ALSO CLAIMED A DEDUCTION U/S 80IB(10) OF THE ACT OF RS.65,41,626/- WHICH PERTAINED TO THE PROFITS FROM THE BINAWAT TOWNSHIP PROJECT, WHOSE REVENUES OR EXPENSES WERE NOT EARLIER RECOGNIZED. FURTHER, THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT WAS ALSO PUT-FORTH WITH RESPECT TO THE BINAWAT TOWNSHIP PROJECT AFTER THE SURVEY THROUGH A LETTER DATED 20. 04.2009. NOW, THE CLAIM OF THE ASSESSING OFFICER IS THAT ASSESSEE AGREED DURI NG THE COURSE OF SURVEY THAT THE PROFITS OF THE BINAWAT TOWNSHIP PROJECT WE RE TAXABLE AND NOT ELIGIBLE FOR SECTION 80IB(10) BENEFITS AND, THEREFORE ASSESS EE IS PRECLUDED FROM RETRACTING FROM THE SAID POSITION AND CLAIMING DEDU CTION U/S 80IB(10) OF THE ACT IN RELATION TO SUCH PROFITS IN THE REVISED RETURN F ILED AFTER THE DATE SURVEY. ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 20. THE CIT(A) HAS HELD THAT THE STAND OF THE ASSES SING OFFICER WAS NOT TENABLE BECAUSE WHAT WAS RELEVANT WAS TO EXAMINE WH ETHER THE CONDITIONS PRESCRIBED U/S 80IB(10) OF THE ACT WERE FULFILLED I N RESPECT OF CLAIM MADE BY THE ASSESSEE AND THE SAME CANNOT BE SHUTOUT MERELY BECAUSE OF THE ADMISSION OF THE ASSESSEE WHICH WAS OBVIOUSLY A MIS TAKEN POSITION OF LAW. 21. ON THIS ASPECT, IN OUR CONSIDERED OPINION, A CL AIM MADE WITH REFERENCE TO A STATUTORY PROVISION IS LIABLE TO BE EXAMINED I N THE LIGHT OF THE RELEVANT LEGAL POSITION AND NOT BY THE POSITION WHICH THE PARTIES MAY TAKE AT A CERTAIN POINT OF TIME. IN THE PRESENT CASE, IT HAS BEEN FACTUALLY B ROUGHT OUT BY THE CIT(A) THAT THE REVISED RETURN FILED BY THE ASSESSEE ON 31.03.2 009 WAS A LEGALLY ADMISSIBLE RETURN OF INCOME FILED WITHIN THE PROVIS IONS OF SECTION 139(5) OF THE ACT AND ANY CLAIM MADE IN THE SAID RETURN WAS LIABL E TO BE CONSIDERED ON ITS MERITS. IT IS ALSO QUITE CLEAR THAT THE REVISED RE TURN OF INCOME WAS FILED BY THE ASSESSEE IN COMPLIANCE WITH THE FACTS DISCOVERED BY THE ASSESSING OFFICER HIMSELF TO THE EFFECT THAT THE REVENUES WERE LIABLE TO BE RECOGNIZED IN RESPECT OF THE BINAWAT TOWNSHIP PROJECT. IF THE REVISED RE TURN OF INCOME HAS BEEN FILED IN THE CONTEXT OF FACTS DISCOVERED, WHICH ARE IN CO NSONANCE WITH THE VIEW OF THE ASSESSING OFFICER, THEN THE ASSESSABILITY OF IN COME DECLARED THEREOF HAS TO FOLLOW IN THE LIGHT OF THE APPLICABLE LEGAL POSITIO N. THE STAND OF THE ASSESSEE DURING THE COURSE OF SURVEY THAT THE PROFITS FROM T HE BINAWAT TOWNSHIP PROJECT WERE TAXABLE AND NOT ELIGIBLE FOR SECTION 80IB(10) BENEFITS IS OF NO RELEVANCE IN ORDER TO ADJUDICATE THE CLAIM MADE BY THE ASSESSEE IN A LEGALLY PERMISSIBLE REVISED RETURN OF INCOME FILED ON 31.03.2009. THE AFORESAID OBJECTION OF THE ASSESSING OFFICER, IN OUR VIEW, HAS BEEN RIGHTLY NE GATED BY THE CIT(A). WE HEREBY AFFIRM HIS ACTION. THUS, REVENUE FAILS ON T HIS GROUND ALSO. 22. IN THE RESULT, THE APPEAL OF THE REVENUE FOR AS SESSMENT YEAR 2007-08 IS DISMISSED. ITA NOS.979 & 980/PN/2012 A.YS. : 2007-08 & 2008-09 23. SINCE THE FACTS AND CIRCUMSTANCES STAND ON IDEN TICAL FOOTING IN ASSESSMENT YEAR 2008-09, OUR DECISION IN ASSESSMENT YEAR 2007-08 WOULD APPLY MUTATIS-MUTANDIS IN ASSESSMENT YEAR 2008-09 A LSO. 24. RESULTANTLY, BOTH THE APPEALS OF THE REVENUE AR E DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH OCTOBER, 2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED : 10 TH OCTOBER, 2014 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, PUNE; 4) THE CIT-I, PUNE; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE