2012 (4) TMI 639 - AT - Income Tax

Disallowing the assessee s claim of deduction u/s 80IB(10) - Held that - Lay out plan/key plan is different from sanction of plan and commencement thereof. Assessee entered into development agreement dated 2-8-2004 with regards to portion of property of Smt. Sunita Mahadkar. So there is no question of any sanction and commencement prior to it. The commencement took place on this property of assessee admeasuring 52245 sq.ft. out of holding of Smt. Sunita Mahadkar acquired by assessee vide development agreement dated 28-2004. So there was no question of commencement prior to 2-8-2004. The date of layout of previous owner i.e. 1-10-1998 should not be confused with date of sanction of plan and commencement thereof as held in the case of Aditya Developers (supra). Considering all the facts and circumstances we are not inclined to interfere with the findings of the CIT(A) who has deleted the addition made by the Assessing Officer by way of disallowing the assessee s claim of deduction u/s 80-IB(10) of the Act.

Summary

Issues Involved:
1. Eligibility of the assessee's project for deduction under Section 80-IB(10) of the Income Tax Act.
2. Determination of the commencement date of the assessee's project.
3. Distinction between layout plan approval and building plan approval.

Detailed Analysis:

1. Eligibility of the Assessee's Project for Deduction under Section 80-IB(10):
The primary issue revolves around whether the assessee's project qualifies for the deduction under Section 80-IB(10) of the Income Tax Act. The Assessing Officer (AO) disallowed the deduction of Rs. 32,30,904/- claimed by the assessee, asserting that the project commenced before the cut-off date of 1-10-1998, making it ineligible for the deduction. The assessee contended that the development rights for the specific plot were obtained only on 2-8-2004, and the project commenced thereafter, thus qualifying for the deduction.

2. Determination of the Commencement Date of the Assessee's Project:
The AO concluded that the project commenced on 3-6-1995 when the layout plan was first sanctioned by the Town Planning and Valuation Department. The assessee argued that the project commenced only after obtaining development rights on 2-8-2004 and subsequent approval of the building plan on 8-10-2004. The CIT(A) accepted the assessee's contention, stating that the project undertaken by the assessee was distinct from the earlier project by Mrs. Sunita Mahadkar.

3. Distinction between Layout Plan Approval and Building Plan Approval:
A significant aspect of the case was the differentiation between the approval of the layout plan and the building plan. The AO's confusion stemmed from treating the date of the layout plan approval as the commencement date of the project. The Tribunal clarified that the layout plan and building plan are distinct, and the commencement of the project should be considered from the date of the building plan approval, which in this case was 8-10-2004.

Tribunal's Observations and Findings:

On the Assessee's Project and Development Rights:
The Tribunal noted that the original layout plan was sanctioned for Mrs. Sunita Mahadkar's project, and the assessee obtained development rights for a specific plot on 2-8-2004. The building plan for this plot was approved on 8-10-2004, and the project was completed by 30-7-2008, within the permissible time frame under Section 80-IB(10).

On the Distinction between Layout Plan and Building Plan:
The Tribunal emphasized the distinction between the layout plan and the building plan, citing various precedents. It reiterated that the layout plan is a preliminary sanction, whereas the building plan approval marks the actual commencement of the project. This distinction was crucial in determining the eligibility for the deduction.

On the AO's and CIT(A)'s Decisions:
The Tribunal upheld the CIT(A)'s decision, agreeing that the assessee's project commenced after obtaining development rights and building plan approval in 2004, thus qualifying for the deduction under Section 80-IB(10). The AO's reliance on the layout plan approval date was deemed erroneous.

Conclusion:
The Tribunal dismissed the revenue's appeal, affirming the CIT(A)'s order to grant the assessee the deduction under Section 80-IB(10) of the Income Tax Act. The distinction between the layout plan and building plan approvals was pivotal in this decision, ensuring the assessee's project met all necessary conditions for the claimed deduction.

Decision pronounced in the open court on 18th April 2012.