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TMI Blog2012 (9) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... and merely because the Assessing Officer has taken one plausible view, it cannot be said that the assessment is erroneous or prejudicial to the interest of the Revenue - Decided against revenue - IT Appeal Nos. 480 & 485 of 2010 & 437 of 2011 - - - Dated:- 24-9-2012 - S. RAVINDRA BHAT AND R.V. EASWAR, JJ. Abhishek Maratha and Ms. Anshul Sharma for the Appellant. Ajay Vohra, Ms. Kavita Jha and Somnath Shukla for the Respondent. ORDER R.V. Easwar, J. - These are three appeals filed by the Revenue under Section 260A of the Income Tax Act, 1961 ( Act for short). They relate to the assessment years 2000-01 and 2001-02. ITA No.485/2010 and 480/2010 are directed against the common order dated 12th June, 2009 passed by the Income Tax Appellate Tribunal ( Tribunal for short) for the assessment years 2000-01 and 2001-02 respectively in the appeals filed by the assessee against the orders passed by the CIT under Section 263 of the Act. ITA No.437/11 is an appeal filed by the assessee against the assessment framed by the Assessing Officer on 22nd March, 2006 under Section 143(3) read with Section 263 of the Act, consequent to the order passed by the CIT under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstruction of the housing projects only after 13th September, 1998. It was argued before the CIT that it was possible to interpret clause (a) of Section 80IB(10) to mean that even those undertakings which had commenced development and construction of the housing project before 1st October, 1998 were eligible for the deduction in the light of the expression such undertaking has commenced . It was further submitted that the condition that the commencement of the development and construction of the housing project should be on or after 1st October, 1998 would render the earlier expression such undertaking has commenced meaningless. It would appear that in support of this claim the assessee had relied upon certain decisions. Details were also filed before the CIT to show that each flat in the housing project did not exceed the maximum built-up area of 1000 sq.ft. On these grounds it was pleaded that the proceedings under Section 263 be dropped. 5. As regards the built-up area of the flats in the housing projects, the CIT was of the view that no queries had been raised by the Assessing Officer at the assessment stage in regard to the calculation and these have to be gone into par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck of enquiry on the part of the Assessing Officer while completing the assessment and that the view taken by the Assessing Officer regarding the eligibility of the assessee for the deduction under Section 80IB(10) was an eminently reasonable and possible view which was supported by certain orders of the Tribunal and therefore the assessment cannot be considered to be erroneous or prejudicial to the interest of the Revenue. It was also submitted that the completion certificates were filed before the Assessing Officer and that he had taken a view based only on those and, therefore, the assessments were neither erroneous nor prejudicial to the interest of the Revenue. It was thus pleaded that the CIT had no jurisdiction to initiate proceedings under Section 263 and set aside the assessments on the ground of lack of enquiry or on the ground of erroneous allowance of the deduction. 10. The Tribunal passed a combined order on 12th June, 2009 for both the years. It noticed that the Assessing Officer had made enquiries about the claim of the assessee under Section 80IB(10) and had also discussed the same in the assessment order. According to the Tribunal, it was not a case of lack of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmenced or commences development and construction of the housing project on or after 1st October, 1998, the Tribunal observed as follows:- 19. The submission of the assessee, as regards the last conditions, that construction of housing projects was to commence on or after 01.10.1998, is that the date of commencement of construction is to be adjudged after receipt of relevant statutory approvals. Any construction carried out before receipt of necessary approvals would not be authorized. In any case, there was only site development by filling of pits, leveling of land, construction of roads, wells, laying of sewerage and electricity lines, etc. Out of the four housing projects constituting subject matter of consideration in the assessment years and there is no dispute as regards commencement of construction with respect to two housing projects, viz., Golf Link II and East End Loni, which commenced after 01.10.98. The lay out plan for the construction of the housing colony, Golf Link-II was approved by the approving authority on 11th March 1999 itself. Similarly, lay out plan for development of housing colony at East End Loni was approved by the relevant authority on 16th January, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the opinion that deduction under section 80-IB(10) has been rightly allowed on housing projects because the building plans of the residential units were approved after 1.10.98 only and the construction has to be deemed to have been commenced on or after the date of the approval itself. 12. The Tribunal was of opinion that merely because there was a honest and bona fide difference of opinion between the assessee and the Assessing Officer on the one hand and the CIT on the other with regard to the interpretation to be placed on a provision of law or there was a possibility of more than one reasonable view of the statutory provision, it cannot be said that the assessment was erroneous or prejudicial to the interest of the Revenue. In this view of the matter, the Tribunal vacated the orders of the CIT passed under Section 263 of the Act for both the years. It may be added that the Tribunal placed reliance on the following judgments of the Supreme Court:- (1) Malabar Industries Co. Ltd. v. CIT [2000] 243 ITR 83/109 Taxman 66 (SC), CIT v. G.M. Mittal [2003] 263 ITR 255/130 Taxman 67 (SC). (2) CIT v. Max India Ltd. [2007] 295 ITR 282/166 Taxman 188 (SC) 13. The Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment or construction. This discussion of the Tribunal shows that the determination of the question as to when the undertaking commenced development and construction, in the absence of any statutory prescription, has to be decided in a pragmatic and reasonable way. It would have been an entirely different issue had there been a statutory prescription of what would be the date of commencement of construction or development. It is certainly a debatable issue on which more than one plausible view is reasonably possible and merely because the Assessing Officer has taken one plausible view, it cannot be said that the assessment is erroneous or prejudicial to the interest of the Revenue. This position stands well settled by the judgments of the Supreme Court cited supra. The Tribunal applied the tests laid down in these judgments to the case. 15. For the above reasons, we are of the view that no substantial question of law arises for our consideration in ITA Nos.485/2010 480/2010. The orders of the Tribunal are accordingly upheld and the appeals filed by the Revenue are dismissed. 16. ITA No.437/2011 is consequential. It arises out of assessment order passed by the Assessing O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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