2014 (8) TMI 1040 - AT - Income Tax

Deduction u/s.80IB(10) - as per AO the built up area of 2 row houses 1 & 7 are more than 1500 sq.ft. each - Held that - CIT(A) has held that the size of the project comprise of 63 units only which included 56 flats and 7 row houses which could quality for the claim of deduction u/s.80IB(10) and not 65 units as held by the Assessing Officer (para 3.6 of the order). Similarly, he has held that the area of the 2 units, i.e. 1 & 7 are less than 1500 sq.ft. after excluding terrace, balcony and projections etc., and therefore the 2 units fulfil conditions prescribed u/s.80IB(10)(14)(a) of the I.T. Act. The above observations of the Ld.CIT(A) are not challenged by the Revenue and therefore it has attained finality and therefore we are not concerned with the above objections of the Assessing Officer. The approval for the project was given by the Development Authority on March 16, 2005. Clearly the approval related to the period prior to 2005, i.e., before the amendment, which insisted on issuance of the completion certificate by the end of the four-year period, was brought into force. The application of such stringent conditions, which are left to an independent body such as the local authority who is to issue the completion certificate, would have led to not only hardship but absurdity. As a consequence, the Tribunal was not, therefore, in error of law while holding in favour of the assessee. Since the date of the commencement of the project in the instant case is admittedly 16-07-2002 as held by the Assessing Officer as well as the CIT(A), therefore, it has to be held that amendment w.e.f. 01- 04-2005 requiring certificate of completion of project within 4 years of approval is not applicable to the projects approved prior to that date and therefore the assessee is entitled to deduction u/s.80IB(10) of the I.T .Act. - Decided in favour of assessee

Issues Involved:
1. Eligibility for deduction under section 80IB(10) of the Income Tax Act.
2. Date of commencement and completion of the housing project.
3. Built-up area of the row houses exceeding the prescribed limit.
4. Applicability of amendments to section 80IB(10) post-approval of the project.

Issue-wise Detailed Analysis:

1. Eligibility for Deduction under Section 80IB(10):
The primary issue was whether the assessee was entitled to a deduction under section 80IB(10) of the Income Tax Act. The Assessing Officer (AO) denied the deduction on the grounds that the assessee did not satisfy the conditions prescribed under the Act. Specifically, the AO noted that the housing project was not completed within the stipulated time frame, and the built-up area of certain row houses exceeded the prescribed limit. The CIT(A) upheld the AO's decision regarding the project's completion but disagreed on the built-up area issue.

2. Date of Commencement and Completion of the Housing Project:
The AO and the CIT(A) determined that the project commenced on 16-07-2002, and thus, according to section 80IB(10), it should have been completed by 31-03-2008. However, the completion certificate for the entire project was obtained only on 31-10-2009. The CIT(A) upheld the AO's decision that the project was not completed within the stipulated period, thus disqualifying the assessee from claiming the deduction.

3. Built-up Area of the Row Houses Exceeding the Prescribed Limit:
The AO noted that the built-up area of two row houses exceeded the limit of 1500 sq.ft. The assessee provided a valuation report indicating compliance, but the AO rejected it based on another valuation report. The CIT(A) disagreed with the AO, stating that balcony/terrace/projections should be excluded from the built-up area calculation. Thus, the CIT(A) concluded that the row houses met the conditions laid down under section 80IB(10)(14)(a).

4. Applicability of Amendments to Section 80IB(10) Post-Approval of the Project:
The assessee argued that the amendments requiring the completion certificate within four years of approval, effective from 01-04-2005, should not apply to projects approved before this date. The Tribunal referred to the decisions of the Hon'ble Delhi High Court in CIT Vs. CHD Developers Ltd. and the Hon'ble Karnataka High Court in CIT Vs. M/s. Ittina Properties Pvt. Ltd., which held that the amendments were prospective and did not apply to projects approved before 01-04-2005. Since the project in question was approved on 16-07-2002, the Tribunal concluded that the assessee was entitled to the deduction under section 80IB(10).

Conclusion:
The Tribunal allowed the appeal filed by the assessee, holding that the amendments to section 80IB(10) effective from 01-04-2005 did not apply to the project approved before this date. Consequently, the assessee was entitled to the deduction under section 80IB(10). The Tribunal did not address other grounds raised by the assessee as they became academic in nature.

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