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TMI Blog2013 (7) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... hem as one unit for the purpose of examining the applicability of clause (c) to section 80-IB(10) - Following decision of Emgeen Holdings P. Ltd. Vs. DCIT [2011 (7) TMI 199 - ITAT MUMBAI] and DCIT Vs. Arcade Bhoomi Enterprises [2013 (7) TMI 210 - ITAT MUMBAI]- Decided in favour of assessee. - ITA No.295/PN/2012 - - - Dated:- 17-5-2013 - Shailendra Kumar Yadav and R K Panda, JJ. For the Appellant : Sri Suhas Bora For the Respondent : Ms Ann Kapthuama ORDER:- Per: R K Panda: This appeal filed by the assessee is directed against the order dated 09-11-2011 of the CIT(A)-II, Pune relating to Assessment year 2008-09. 2. Although a number of grounds have been taken by the assessee these are all relate to denial of deduction u/s.80IB(10) of the Income Tax Act 1961 amounting to Rs.30.10,876/- in respect of the Housing Project Kasturkunj , Bhosalenagar, Ganeshkhind Road, Pune by the Assessing Officer and upheld by the Ld. CIT(A). 3. Facts of the case, in brief, are that the assessee is a partnership firm carrying out the activity of promoter and builder under the name and Style of M/s. City Development Corporation. During the impugned assessment year the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was available; sewerage system was operating; club house was functional; etc. The assessee also pointed out that the local authority had also initiated property tax assessments for each of the flats and the same demonstrated that all the flats in the building were complete. In fact, in para 6.9 of the assessment order, the Assessing Officer noticed that the facts that the flats were completed and possession given will not come to the rescue of the assessee . The aforesaid finding of the Assessing Officer supports the assertion made by the assessee that factually speaking construction of flats in building E was also complete and possession handed over to the actual user/customers prior to 31-3-2008. Pertinently, on the basis of the architect s certificate confirming completion of construction of building, the assessee applied for the completion certificate to the Pune Municipal Corporation on 12-3-2008. It has been pointed out before us that the local authority i.e. Pune Municipal Corporation did not raise any objection with regard to assessee s application and the certificate for building E was thereafter issued on 5-5-2008. The moot question is as to whether in such a situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said application of the assessee and the Architect by raising any objections for accepted by issue of said completion certificate till 10-10-2008. Therefore, the delay in grant of the said certificate is certainly not attributable to the assessee. Therefore, in our opinion, the assessee is not defaulter on this account and thus, the AO has erred in denying the deduction u/s 80-IB(10) of the Act. Accordingly, the order of the CIT(A) has to be reversed. Thus, the grounds raised in the appeal are allowed 13. The aforesaid decision of the Tribunal is clearly applicable to the facts of the present case also. In the present case, the completion certificate was applied for before 31-3-2008 i.e. on 12-3-2008. It is undisputable that the application of the assessee has been approved by the local authority without raising any amendment or objection, as has been asserted by the assessee all along and the delayed issuance of the completion certificate by the local authority on 5-5-2008, albeit after the mandated date of 31-3-2008 cannot be attributed to the assessee. In this background of the matter, we therefore, find ample force in the plea of the assessee that denial of deduction u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng regard to the facts and circumstances of the case. 15. Now we may come to the second objection taken by the Assessing Officer in order to deny the claim of deduction u/s 80-IB(10) which is to the effect that certain adjoining flats in the housing project were sold to a single person or person belonging to one family and such flats were combined by the purchaser. As per the Assessing Officer the built up area of such flat be considered after combining the same and in this manner the built up area exceeded 1500 sq.ft. which was violative of clause (c) to section 80-IB(10) of the Act. The plea of the assessee on this aspect has been that the flats were sanctioned as independent units; they have been sold as separate units inasmuch as separate sale deeds have been entered into for selling different flats; that the customers for their own convenience had combined two adjacent flats into a single flat and, that such combining of flats had been done by the purchasers after the flats were handed over possession by the assessee. The assessee further pointed out that the common entrance given to the flat owners was a security measure and that such common area was not sold to any part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (c) of section 80-IB(10) is the subject matter of dispute. As per clause (c) of section 80-IB(10) a residential unit ought to have maximum built up area of 1500 sq.ft. so far as it is relevant for the city of Pune. In the case before us, admittedly, the local authority has sanctioned two flats separately and even in the occupation/completion certificate issued by the Pune Municipal Corporation, two flats have been considered as independent units. The CIT(A) has come to a finding that there is no evidence to show that the two flats have been combined by the assessee and thereafter sold to the customers as a single unit. In fact, the aforesaid finding has not been controverted by the Revenue before us and accordingly, it would be in the fitness of things to hold that there is no material to show that the assessee had combined two adjoining flats so as to consider them as one unit for the purpose of examining the applicability of clause (c) to section 80-IB(10) of the Act. It is also evident that there is no finding, much less an assertion by the Revenue, at any stage that the two adjacent flats if considered independently have a built up area in excess of 1500 sq.ft. It is also not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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