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TMI Blog2014 (12) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... en controverted either by the Assessing Officer or by the CIT(A). In the absence of any material to controvert the assertions of the assessee 8 that the construction was completed before the stipulated dated i.e. 31.03.2008, we find no reasons to belie the same. Therefore, on facts, the position consistently canvassed by the assessee to the effect that the construction of the project was complete before the stipulated date of 31.03.2008 has to prevail. We set-aside the order of the CIT(A) and direct the Assessing Officer to allow assessee’s claim for deduction u/s 80-IB(10) in respect of the profits of the housing project, namely, ‘Runwal Daffodils’. - Decided in favour of assessee - ITA No. 1339/PN/2010 - - - Dated:- 30-12-2014 - SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER For the Appellant: Mr. Nikhil Pathak For the Respondent: Mr. Rajesh Damor ORDER PER G. S. PANNU, AM The captioned appeal by the assessee is directed against an order of the Commissioner of Income Tax (Appeals)-II, Pune dated 28.09.2010 which, in turn, has arisen from an order dated 30.12.2009 passed by the Assessing Officer u/s 143(3) r.w.s. 147 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective buyers. The Ld. Representative also pointed out that the PMC was levying municipal taxes in respect of each of the residential unit and the same 3 was being done in the name of the concerned owners. Assessee also relied upon the electricity bills and the possession documents to prove that the buyers of the flats were indeed using the flats and the same could have been possible only after completion of the project. The Ld. Representative submitted that the aforesaid assertions of the assessee have not been disputed but the claim of deduction u/s 80-IB(10) of the Act had been rejected merely because the PMC did not issue the occupancy certificate on or before 31.03.2008. In this context, reference has also been made to the judgement of the Hon ble Delhi High Court in the case of CIT vs. CHD Developers Ltd., (2014) 362 ITR 177 (Delhi) for the proposition that the requirement of issuance of completion certificate by the local authority before the stipulated date cannot be insisted upon in the present case since the project of the assessee had commenced prior to the amendment inserted by the Finance (No.2) Act of 2004, w.e.f. 01.04.2005 in terms of Explanation (ii) to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date on which the amendment which insisted on production of completion certificate was brought into force. In order to appreciate the aforesaid plea of the assessee, we may refer to the provisions of section 80-IB(10) of the Act as it stood prior to the amendment brought by the Finance (No.2) Act of 2004, w.e.f. 01.04.2005 :- (10) The amount of profits in case of an undertaking developing and building housing projects approved before the 31st day of March, 2005 by a local authority, shall be hundred per cent. of the profits derived in any previous year relevant to any assessment year from such housing project if, - 5 (a) such undertaking has commenced or commences development and construction of the housing project on or after tile 1st day of October, 1998; (b) the project is on the size of a plot of land which has minimum area of one acre; and (c) the residential unit has a minimum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place. 9. Subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three per cent. of the aggregate built-up area of the housing project of five thousand square feet, whichever is higher. 10. In the instant assessment year i.e. 2006-07, the Assessing Officer has sought to disallow the deduction claimed by the assessee on the ground that the completion certificate in terms of Explanation (ii) has not been obtained. A similar situation had arisen before the Hon ble Delhi High Court in the case of CHD Developers Ltd. (supra). In the case before the Hon ble Delhi High Court, the project of the assessee was approved on 16.03.2005 and the Assessing Officer proceeded to disallow the deduction claimed for assessment year 2007-08 on the ground that the completion certificate in terms of Explanation (ii) was not granted within the stipula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Departments like, Fire Department, Garden Department, Encroachment Department, Construction and Development Control Department, etc.. On this basis, it was sought to be contended that the non-issuance of the completion certificate by the PMC before 31.03.2008 was for reasons beyond the control of the assessee. 12. We find that all the aforesaid factual assertions made by the assessee have not been controverted either by the Assessing Officer or by the CIT(A). In the absence of any material to controvert the assertions of the assessee 8 that the construction was completed before the stipulated dated i.e. 31.03.2008, we find no reasons to belie the same. Therefore, on facts, the position consistently canvassed by the assessee to the effect that the construction of the project was complete before the stipulated date of 31.03.2008 has to prevail. We hold so. 13. Thus, having regard to the position of law and facts of the present case as discussed above, we set-aside the order of the CIT(A) and direct the Assessing Officer to allow assessee s claim for deduction u/s 80-IB(10) of the Act amounting to ₹ 1,20,25,699/- in respect of the profits of the housing project, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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