2014 (4) TMI 1132 - AT - Income Tax

Deduction u/s.80-IB(10) - Non-completion of housing project - Held that - Hon ble Bombay High Court in the case of CIT Vs. Brahma Associates (2011 (2) TMI 373 - BOMBAY HIGH COURT ), wherein, it has been held that up to 31.03.2005 (subject to fulfilling of other conditions) deduction u/s.80IB(10) is allowable to housing project approved by local authority having residential units which with commercial user to the extent permitted under DC Rules / Regulations framed by respective authority. Amendment in clause (d) of sub-section specifying commercial area up to 10% of project in housing project applies to the project approved after 01.04.2005 and the amendment affected by Finance Act (No.2) of 2004 w.e.f. 01.04.2005 would not have retrospective effect and that approval of housing project prior to 01.04.2005 with commercial user permitted under DC Rules / Regulations framed by respective local authority would still be exempt u/s.80IB(10). It is clear that assessee received approval for C building from PMC vide certificate dated 03.02.2005 but work on C building could not start since additional FSI in lieu of road widening was not received from PMC. The assessee could not plan the work for C building since engineers and architects could not design the structure of building in the absence of FSI. The details of follow up done by assessee with PMC have been duly appreciated by CIT(A). The legislative intent read that the clear provisions of the requisite section, do not permit any proportionate deduction u/s. 80IB(10) of Act. However, in view of the decision in Ramsukh Properties (2012 (12) TMI 360 - ITAT PUNE ) as discussed above, the CIT(A) rightly allowed the proportionate deduction in respect of project completed during the impugned assessment year. The provisions of taxing statute should be construed harmoniously with the object of statute to effectuate the legislative intention. Under the circumstances, proportionate deduction u/s.80IB(10) of the Act is justified. - Decided in favour of assessee

Summary

Issues Involved:
1. Size of the plot for deduction u/s 80-IB(10)
2. Violation of terms of approval of the housing project
3. Exceeding the limit of commercial establishment beyond permissible limit
4. Non-completion of the housing project within the prescribed period

Detailed Analysis:

1. Size of the Plot for Deduction u/s 80-IB(10):
The Assessing Officer (AO) denied the assessee's claim for deduction u/s 80-IB(10) on the ground that the plot size was less than one acre. The CIT(A) found that the plot size, as per the commencement certificate and building plan approved by PMC on 03.02.2005, was 4134.00 sq.mtrs., reduced to 3952 sq.mtrs. after road widening. The ITAT referred to CBDT Circular No.5/2005, which clarified that the area earmarked for road and common amenities must conform to the project approved by the local authority. The ITAT upheld the CIT(A)'s decision, following the ratio of the case "Bunty Builders Vs. ITO," which stated that the area of one acre should be inclusive of amenities required by the local authority. Therefore, the CIT(A)'s decision on the plot size was upheld.

2. Violation of Terms of Approval of the Housing Project:
The AO noted that the housing project was initially sanctioned for three buildings but was revised to two buildings in 2007, which the AO considered a violation of the terms of approval. The CIT(A) found that any builder is entitled to get plans revised from PMC as per financial capacity and business need, and the date of approval of the revised plan would be deemed the date of the first approval in terms of section 80-IB(10). The ITAT agreed with the CIT(A) that the objection did not arise out of the relevant provision of section 80-IB(10) and upheld the CIT(A)'s decision.

3. Exceeding the Limit of Commercial Establishment Beyond Permissible Limit:
The AO observed that the commercial establishment in the housing project exceeded the permissible limit. The CIT(A) referred to the Hon'ble Bombay High Court's decision in "CIT Vs. Brahma Associates," which held that up to 31.03.2005, deduction u/s 80-IB(10) is allowable to housing projects with commercial users permitted under DC Rules/Regulations. The ITAT upheld the CIT(A)'s decision, noting that the amendment specifying commercial area limits applies only to projects approved after 01.04.2005.

4. Non-Completion of the Housing Project within the Prescribed Period:
The AO stated that the assessee did not complete the housing project within the prescribed four years from the date of the first approval. The CIT(A) granted relief, and the ITAT referred to the ITAT Pune Bench decision in "Ramsukh Properties Vs. DCIT," which allowed prorata deduction u/s 80-IB(10) for completed portions of the project. The ITAT found that the assessee was prevented by reasonable cause from completing the construction in time due to intervention by CID action and the absence of additional FSI from PMC. The ITAT upheld the CIT(A)'s decision to allow proportionate deduction for the completed portion of the project.

Conclusion:
The ITAT dismissed the appeal filed by the revenue, upholding the CIT(A)'s decisions on all issues. The judgment emphasized the interpretation of section 80-IB(10) in light of legislative intent and relevant case law, affirming the assessee's entitlement to deductions based on the facts and circumstances of the case.