2014 (6) TMI 1060 - AT - Income Tax

Deduction u/s. 80 IB(10) - approval of the local authority was obtained on 28.11.1992 i.e. much before 01.10.1998 - AO disallowed the deduction on the ground that the project was started by commencement certificated dated 28th November, 1992 issued to M/s. Gas Property Developers, therefore, the assessee does not fulfilled the conditions laid down in section 80IB(10) according to which for being eligible for deduction under section 80IB(10) the project must have to be started on or after 1st October, 1998 - HELD THAT - Number of no objection certificates were obtained by the assessee after entering into the Development Agreement. Copies of all these no objection certificates, IOD and CC were submitted. No contrary evidence has been brought on record to controvert these findings recorded by the learned CIT(A). Simply on the basis of the IOD obtained by M/s. Gas Property Developers, the AO has drawn an inference that it was continuation of the earlier project. However, the project has to be seen vis- -vis the approval obtained for it and commencement of the project. The project commenced and developed by the assessee is not as per the old project for which approval was obtained by M/s. Gas Property Developers on 28th November, 1992. These expenses also cannot be connected with the project got approved by the assessee in the financial year 2003 and on the basis of those expenditure it cannot be said that the project developed by the assessee is continuation of the earlier project for which approval was obtained by M/s. Gas Property Developers on 28th November, 1992. No expenditure, whatsoever, has been shown to be incurred on the housing project for which approval was obtained by the assessee after entering into Development Agreement, i.e. on 10th July, 2003. The expenditure incurred by M/s. Gas Property Developers were not on the housing project approved by the municipal corporation on the revised layout The expenditure incurred by M/s. Gas Property Developers was on repair of the boundary wall. Therefore, on the basis of the earlier approval obtained by M/s. Gas Property Developers, which has already lapsed, and the expenses were on account of repair of boundary wall the project cannot be stated to have been commenced before 01.10.1998. Therefore, we find no infirmity In the findings recorded by the learned CIT(A) that the AO was wrong in holding that the housing project of the assessee had commenced before 01.10.1998. - Decided against revenue.

Summary

Issues Involved:

1. Eligibility for deduction under section 80IB(10) of the Income Tax Act.
2. Determination of the commencement date of the housing project.
3. Consideration of previous approvals and expenditures by the earlier developer.

Detailed Analysis:

Issue 1: Eligibility for Deduction under Section 80IB(10) of the Income Tax Act

The primary issue revolves around whether the assessee is eligible for deduction under section 80IB(10) of the Income Tax Act. The Assessing Officer (AO) disallowed the deduction on the grounds that the project commenced before the statutory date of 1st October 1998. The assessee contended that the project was started after entering into a Development Agreement on 10th July 2003, thus fulfilling the conditions laid down in section 80IB(10).

Issue 2: Determination of the Commencement Date of the Housing Project

The AO argued that the project began with the original approval obtained by M/s. Gas Property Developers on 28th November 1992, which was revalidated until 27th November 2003. However, the assessee argued that the original approval had lapsed, and a new layout plan was approved in 2003, which involved constructing seven buildings instead of the two initially planned. The CIT(A) found that the development and construction activity started only after the new approval in 2003, thus meeting the statutory requirement of commencing after 1st October 1998.

Issue 3: Consideration of Previous Approvals and Expenditures by the Earlier Developer

The AO noted that M/s. Gas Property Developers had incurred significant expenses on the project before the statutory date, which suggested that the project commenced earlier. However, the CIT(A) and the Tribunal found that these expenses were minor and related to the repair of the boundary wall, not the actual development or construction of the housing project. The Tribunal emphasized that the project should be considered based on the new approval obtained by the assessee and the actual commencement of construction activities.

Conclusion:

The Tribunal upheld the CIT(A)'s decision, stating that the project developed by the assessee was distinct from the earlier project approved in 1992. The Tribunal concluded that the development and construction activities commenced only after the new approval in 2003, making the assessee eligible for the deduction under section 80IB(10). The appeals filed by the Revenue were dismissed, affirming that the assessee fulfilled all conditions for the deduction.

Order Pronounced:

Order pronounced in the open court on 04/06/2014.