2012 (12) TMI 129 - AT - Income Tax

Disallowance of deduction under section 80IB(10) on the ground that housing project should commence on or after 1/10/1998 whereas the assessee s project named Gold Coast started much earlier and built up area of some residential units exceed 1500 sft Held that - Explanation brought in statute the same was not applicable to the projects approved prior to 01-04- 05 - plans which are approved on which the basis for construction of the present building was approved in 2002 and accordingly they are within the provisions of Section 80-IB(10) - As seen from the nature of expenditure they cannot be considered as evidencing that the project has commenced before 1st October 1998 as only cost of land construction of compound wall and Municipal taxes and various expenditures for plan approvals were incurred. There is no expenditure on construction activity on the project - assessee has sold adjoining flats of more than 1500 sft the measurements were taken again and post survey even Departmental Valuation Officer has certified that even the combined flat was less than 1500 sft - Revenue appeals are dismissed

Issues Involved:
1. Eligibility for deduction under Section 80IB(10) based on the commencement date of the housing project.
2. Eligibility for deduction under Section 80IB(10) based on the built-up area of residential units.

Issue-wise Detailed Analysis:

1. Eligibility for deduction under Section 80IB(10) based on the commencement date of the housing project:

The Revenue contended that the assessee was not eligible for deduction under Section 80IB(10) as the housing project should have commenced on or after 1/10/1998, while the assessee's project "Gold Coast" allegedly started earlier. The CIT(A) provided relief by determining that the project indeed commenced during the financial year 2002-03 based on several key findings:

(a) The NA order was granted on 5th April 2002, which was crucial for reckoning the commencement date.
(b) The construction of the housing project was in accordance with the building layout plan approved on 22nd January 2002, not the earlier plan dated 20th August 1997.
(c) The building commencement certificate dated 22nd January 2002 and the first plinth checking certificate dated 17th July 2002 indicated project initiation in 2002.
(d) No significant expenditure was incurred before the financial year 2001-02, and the advertisement for the project commenced on 15th May 2002.
(e) The initial advance booking money was received in the financial year 2002-03, further indicating the project start date.
(f) Expenditures before 31st March 2002 were related to land acquisition and preliminary development, not construction.

The Tribunal upheld CIT(A)'s findings, noting that the project commenced in 2002, aligning with Section 80IB(10) requirements. The Tribunal also emphasized that the Explanation to Section 80IB(10) introduced in 2005 could not be applied retrospectively to disallow the claim for AY 2004-05.

2. Eligibility for deduction under Section 80IB(10) based on the built-up area of residential units:

The Revenue argued that some residential units exceeded the maximum built-up area of 1500 sq. ft. The CIT(A) found the following:

(a) The director's statement during the survey, which led to the withdrawal of the claim, was made under a mistaken belief regarding the built-up area.
(b) The Departmental Valuation Officer (DVO) measured the flats and found them to be less than 1500 sq. ft., contradicting the survey measurements.
(c) The statements of flat holders regarding super built-up areas were not relevant as the assessee sold flats based on carpet area.
(d) The architect's certificate and the Record Plan approved by Pune Municipal Corporation confirmed that the built-up area of the flats was within the permissible limit.
(e) The Assessing Officer's reliance on the newly inserted Section 80-IB(14) definition of "built-up area" was incorrect as it was applicable prospectively from 1st April 2005.

The Tribunal agreed with CIT(A)'s conclusion that none of the residential flats exceeded the 1500 sq. ft. limit, thus affirming the eligibility for deduction under Section 80IB(10). The Tribunal dismissed the Revenue's appeals for all three years, confirming the CIT(A)'s order.

Conclusion:

The Tribunal dismissed the Revenue's appeals, affirming the CIT(A)'s findings that the assessee's project commenced in 2002 and that the built-up area of the residential units did not exceed 1500 sq. ft., thus qualifying for the deduction under Section 80IB(10).

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