2013 (2) TMI 800 - AT - Income Tax

Disallowance of deduction under section 80IB(10) - Held that - Assessing Officer was not justified in observing that the assessee is not eligible for deduction since commencement certificate and completion certificate are not in the name of the assessee. Construction of even one building with several residential units of the size not exceeding 1000 square feet ( E building in the present case) would constitute a housing project under Section 80IB(10) of the Act. Gram panchayat Keshav Nagar Mundhwa Pune is local authority for the purpose of issuing completion certificate for claiming deduction u/s.80IB(10) in respect of profit from sale of eligible flats in project in question. Assessee fulfilled all conditions laid down for claim of deduction u/s.80IB(10)

Issues Involved:
1. Disallowance of deduction under section 80IB(10) of Rs. 1,20,66,344/-
2. Non-allowance of proportionate deduction for completed residential units/flats.
3. Allocation of common expenses of Rs. 4,02,958/- to the projects based on sales/turnover.

Issue-wise Detailed Analysis:

1. Disallowance of Deduction under Section 80IB(10):
The primary issue revolved around the disallowance of a deduction under section 80IB(10) amounting to Rs. 1,20,66,344/- claimed by the assessee, a proprietor of Harikrupa Builders, for the project Mahaganesh Nagari. The Assessing Officer (AO) raised objections regarding the eligibility of the project for deduction, citing reasons such as the project not being completed by the stipulated date of 31.03.2008, inability to produce a completion certificate from the local authority (Collector, Pune), and the project being a continuation of the original plan approved on 31.03.2001. The AO also argued that the buildings A to E did not meet the minimum land requirement of one acre.

The tribunal found that the project approved on 31.03.2001 and the revised plan on 25.01.2007 were separate projects. It was noted that the assessee had obtained a completion certificate from the Grampanchayat Keshavnagar, Mundhwa, and that the Collector, Pune, did not issue completion certificates for projects approved before 31.12.2007. The tribunal referenced various legal precedents, including the Gujarat High Court's decision in CIT vs. Radhe Developers, which held that the title of the land or development permissions need not be in the name of the assessee for claiming deduction under section 80IB(10).

2. Non-Allowance of Proportionate Deduction for Completed Residential Units/Flats:
The assessee argued for a proportionate deduction under section 80IB(10) for the residential units/flats for which the completion certificate was granted by the Grampanchayat Keshavnagar, Mundhwa, before 31.03.2008. The tribunal found merit in this argument, noting that the assessee had completed the construction of buildings A to E and obtained the necessary completion certificate from the local authority. The tribunal held that the Grampanchayat was a competent local authority to issue the completion certificate, and the assessee should not be penalized for administrative changes in jurisdiction.

3. Allocation of Common Expenses:
The AO had allocated common expenses of Rs. 4,02,958/- to the projects based on sales/turnover, which the assessee contested. The tribunal did not delve deeply into this issue, as the primary focus was on the eligibility for deduction under section 80IB(10). However, it implicitly accepted the assessee's method of allocation by directing the AO to allow the deduction claimed.

Conclusion:
The tribunal allowed the assessee's appeal, holding that the assessee fulfilled all conditions for claiming the deduction under section 80IB(10). It directed the AO to allow the deduction of Rs. 1,20,66,344/-. The tribunal emphasized a liberal interpretation of the provisions, considering the peculiar circumstances of jurisdictional changes and the non-issuance of completion certificates by the Collector, Pune. The appeal was thus allowed in favor of the assessee.

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