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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 ..... iled by the Revenue against the order passed by the Tribunal on 12th June, 2009 in the appeals filed by the assessee against the orders passed by the CIT under Section 263 of the Act. The CIT passed two separate orders for the assessment years 2000-01 and 2001-02 on the same day, that is, 24th March, 2005. 3. In respect of the assessment year 2000-01, the facts are these. The assessee is engaged in the business of real estate builder and developer. It filed a return of income on 31st November, 2000 declaring a total income of Rs. 6,94,23,159/- which was scaled down to Rs. 3,80,22,870/- by revised return filed on 27th December, 2001. The Assessing Officer issued notices under Section 143(2) and 142(1) which were complied with. The assessee also produced books of accounts which were test-checked as also various particulars and documents called for in the course of the assessment proceedings. The assessment order was passed on 28th March, 2003 under Section 143(3) on a total income of Rs. 6,10,31,057/-. Two modifications were made by the Assessing Officer to the income returned. The first was an addition of Rs. 2,17,73,665/- as notional annual letting value in respect of the flats re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004. As regard the plea of the assessee that the deduction was available even in respect of housing projects which were commenced prior to 1st October, 1998, the CIT held that the interpretation placed by the assessee upon the language of clause (a) of Section 80IB(10) would render the words "on or after the first day of October, 1998" appearing in the clause wholly redundant. According to the CIT, the Assessee had violated one of the basic conditions of the Section and did not place on record any evidence regarding the completion of the projects nor were any queries made by the Assessing Officer in this regard. 6. One more ground for which the CIT initiated proceedings under Section 263 was that the assessee had earned tax free dividend income of Rs. 6,09,904/-but the Assessing Officer had not examined the applicability of Section 14A. On this ground too, the assessment was erroneous and prejudicial to the interest of the Revenue. 7. For the above reasons, the CIT set aside the assessment order and directed the Assessing Officer to make proper enquiries and frame a fresh assessment after affording opportunity of being heard to the assessee. 8. In respect of the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute that the project was approved by the local authorities and was developed on land exceeding 1 acre, as required by the Section. The auditors had also certified that the projects were approved as per law; they also gave the dates of approval in respect of different projects as under:- Project Size of the land Date of approval of lay out plan of residential colony Golf Link I, Greater Noida 100 acres 30th May 1997 Golf Link II, Greater Noida 38.86 acres 11th March 1999 Avantika Aakriti 82.69 acres 14th October, 1996 East End Loni 87.10 acres 16th January, 1999 In addition to the above details, the assessee, (as found by the Tribunal in para 11 of its order), also furnished a calculation of the built-up area of the flats on the basis of which price was charged from the customers and the drawings as certified by the architects. It was made known in these calculations that the assessee had taken 50% of the verandah size and 25% of the platform size as appurtenant to the flat. Those calculations were made on the basis of the agreement entered into with the customers. The Tribunal noted that these calculations were accepted by the Assessing Officer in the abse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause of building regulation provides that construction of residential building can be commenced after submission of the building plan. If within 30 days of the receipt of such plan no order, either sanctioning or refusing such building plan, is passed by the approving authority, the plan shall stand sanctioned on the expiry of the said 30th day. The approving authority has a right to refuse/ reject the building plan submitted by the developer and in that case, the developer would need to submit revised plan. On a perusal of the sequence of events, we find that building plans of each house submitted by the assessee were not sanctioned as such by the relevant authority before 01.10.98. The same were rejected and time and again modifications in plans were proposed by the authority. The approval of building plan was after 01.10.98 except for 26 houses in Avantika Aakriti project. 20. In the case of Nirmiti Construction v. Dy. CIT [2005] 95 TTJ 1117 (Pune), that merely because some expenses like cleaning of land or Puja expenses, etc. after purchase of land, were incurred before 01.10.1998. The building plan were sanctioned by the relevant municipal authority after the date. The Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-up area of the residential units. It would be unreasonable to hold that the Assessing Officer ignored those details. Moreover the statutory auditors had clearly mentioned the dates of approval of the lay out plan of the residential colonies. The Assessing Officer was thus made aware of the dates on which the approvals were granted in respect of each of the four housing projects. The more important aspect was the applicability of clause (a) of Section 80IB(10). On this aspect the Tribunal held that any construction carried out before the receipt of necessary approvals would be unauthorized and could not be recognized. It was found by the Tribunal that 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. Further there was no dispute regarding the date of commencement of construction with respect to the projects, namely, Golf Link-II and East End Loni. The Tribunal has found that both these projects commenced after 1st October, 1998. With regard to the other two projects, namely, Golf Link-I and Avantika Akruti, the Tribunal held that the date of commencement of construction had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no evidence on record to show that assessee company fulfills all conditions prescribed for claim of deduction u/s 80IB (10). Accordingly, the order framed u/s 143(3) was set aside with a direction to frame the assessment afresh. The assessee approached to the Tribunal against the order of CIT u/s 263 dated 24.03.2005. The Tribunal vide its order dated 12.06.2009 held that deduction u/s 80IB can be allowed only with respect to the units which did not exceed statutory limit of 1000 sq. ft. and that assessee would not be entitled to reduction of the built up area in five houses in East of Loni and six houses in Avantika Akriti. In view of this decision of the Tribunal, we restore the appeal back to the file of the AO for deciding afresh in terms of the directions given by the Tribunal at para 17 of its order dated 12.06.2009."
17. In view of our decision in ITA Nos.485/2010, the fate of the present appeal is consequential and accordingly no substantial question of law arises for our consideration. The appeal is dismissed.
18. In the result all the three appeals filed by the Revenue are dismissed with no order as to costs.
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