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TMI Blog2015 (7) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... from VMSS in totality. The order of ld. CIT(A) is bad in law that deserves to be quashed. 2. Ld. CIT(A) erred in law and on facts in holding that the project was not completed in time prescribed under law when as a matter of fact the appellant not only submitted the project completion report but also paid drainage and water line connections to local authority before the time limit prescribed under the law. Ld. CIT(A) ought to have appreciated the submissions of the appellant by deleting the disallowance made by AO. 3. Ld. CIT(A) further erred in not appreciating the fact that the application for issuance of project completion certificate was already made to the competent authority and in absence of failure on the part of the authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e buyers, the profit booked from sale of 4037 sq.mtr. was stated to be outside the ambit of provisions of section 80IB(10) as it is not the profit derived from activities of development and construction. In essence deduction u/s 80IB(1) was denied on account of ownership not being in the name of the assessee and in the alternate the deduction was limited to sale of utilized FSI of 7293 sq.mtrs. The claim of deduction was also denied as the assessee had not acquired completion certificate for the project within the stipulated time. The completion certificate was received only for 20 out of the 43 units in the project. Thus the claim of assessee was not allowed. 3. The assessee went in appeal before the CIT(A). The CIT(A) by following appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the Assessing Officer the deduction in respect of smaller units were allowed, because they fulfilled all the conditions laid down in section 80IB on stand alone basis. In the case of the appellant, certified completed portion fails the test to be considered as stand alone project on several counts, the first and foremost being area of 20 completed unit being less than one acre. The 20 completed units are not on one acre of land to be considered a stand alone housing project. Here it is also worth mentioning that the electricity Bill of the units for unit No.21 onwards shows that meters in respect of all these units were installed after April, 2007 that is not pertaining to instant assessment year. Similarly, it is also to be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The view taken by the Tribunal has been upheld by the Hon'ble Gujarat High Court vide its order in Tax Appeal No.107 of 2015, dated 5/5/2015 with the following observations :- "2.06. At the outset, it is required to be noted that the Housing Project for 43 units came to be approved by the local authority and the assessee claimed deduction under section 80IB(10) of the Act, however, the assessee has not obtained completion certificate within a period of four years from the date of approval by the competent authority with respect to all 43 units though entire housing project consisting of 43 units was completed and the assessee could obtain Completion Certificate in respect of remaining 23 units though the construction of the same were compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied for B.U. permission, however, for some technical ground, B.U. permission was not granted and the B.U. permission was not received on the ground that construction was not completed, the assessee shall be entitled to claim deduction under section 80IB(10) of the Act. 2.08 Considering the aforesaid decision of the Division Bench of this Court and the facts of the case on hand, as the assessee completed project/construction of all 43 units within 4 years from the date of approval by the competent authority and also applied for B.U. permission within a period of four years with respect to all 43 units, however, could obtain B.U. permission with respect to 20 units only and for whatever reasons, with respect to remaining 23 units, B.U. perm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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