9911796707
TMI Blog2016 (1) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated period of four years. 3. Rival contentions have been heard and record perused. Facts in brief are that the assessee is a partnership firm engaged in the business of builders and developers. During the relevant period, the assessee undertook a project by name Vrindavan Complex and claimed deduction u/s 80IB(10). The A.O. completed the assessment originally u/s 143(3) accepting the claim of the assessee that it was entitled to deduction u/s 801B(10). Subsequently, the A.O. received information from ITO (CIB) stating as under: As per the direction given by the DIT (C1B)Mumbai by her letter dated 1.9.08(copy enclosed), the verification was made in this case from local authorities regarding commencement and occupation certificate issued by them. On verification it appears that the occupation certificate was not issued by the local authorities in this case. 4. In view of rile above information, the A.O. reopened the assessment u/s 148 on the ground that local authorities did not issue the occupation certificate before 31-3-08. In response to notices u/s.148 dated 25-3-09, the assessee filed letters dated 28-4-09, stating that returns already filed for both the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng No.TNA(TNA)/HSG/(TC)/16677/ dated 11/08/2005; v) Copy of Application dated 12.02.2004 for Occupation Certificate by Architect of assessee to Municipal Authorities duly acknowledged; and vi) Copy of Municipality letter dated 21.04.2011 wherein they have referred the above application by assessee s Architect for O.C. In view of the above, ld. AR contended that assessee has completed the project within the stipulated period of four years. 10. We have considered rival contentions, gone through the orders of the authorities below and deliberated on the judicial pronouncements referred by lower authorities in their orders as well as cited by ld. AR and DR during the course of hearing before us. From the record we found that the impugned project of the assessee was approved prior to 1st April, 2005 and as per the provisions applicable for the projects approved prior to 1-4-2005, there was no condition for furnishing completion certificate for claiming deduction u/s.80IB(10) of the Act. 11. The relevant provisions of law as prevailing prior to amendment by Finance (No.2) Act, 2004, effective from 1-4-2005, reads as under :- 'Section 80-IB(10) prior to the amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es such construction,- (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004, within four years from the end of the financial year in which the housing project is approved by the local authority. Explanation.- For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prior to 1-4-2005. It is apparent that the assessee is entitled for the deduction, if he complied with all the conditions as has been stipulated, at the time its project for development of housing project is approved. This is an undisputed fact that in the case of the assessee, the project was approved prior to 1-4-2005. 14. The Hon ble Bombay High Court in the case of Happy Homes Enterprises, 51 taxmann.com 281, clearly held that amendment brought in by Finance (No.2) Act, 2004 is applicable for the projects approved after 1-4-2005, and not for the projects approved prior to 1-4-2005. Precise observation was as under :- The provisions of section 80-IB(10) were substantially amended by way of the Finance (No. 2) Act, 2004 with effect from 1-4-2005. As can be noted from the amended provisions, there were several conditions that were imposed in the newly substituted section 80-IB(10) that were absent in the said section prior to its amendment. One such condition inserted with effect from 1-4-2005 was clause (d) that put a restriction on the quantum of commercial area that could be included in a housing project in order to entitle the assessee to claim the deduction as set o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
