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TMI Blog2011 (6) TMI 848X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 and 6.4.2010 for the assessment years 2005-06, 2006-07 and 2007-08 respectively in the case I. ITA No.387/10 A.Y 2005-06: 2. Though the Revenue has raised five grounds in its grounds of appeal, the crux of the matter is confined to a lone issue that (i) the Ld. CIT (A) had erred in holding that deduction u/s 80-IB (10) was allowable without appreciating that the conditions laid down in s.80IB (10) were not fulfilled by the assessee. II. ITA No.388 822/10 A.Y 2006-07 2007-08: 2.1. For these A.Ys too, the Revenue has raised almost identical grounds, however, the essence of the issue is that (i) the Ld. CIT (A) had erred in holding that deduction u/s 80-IB (10) was allowable without ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 80IB (10) of the Act was denied on the ground that The project for construction was approved by the local authorities only w.e.f. 4.4.2005 and the assessee was required to being the construction work after obtaining the approval from the local authorities and if project construction work was commenced, such project is not recognized u/s 80IB (10) of the Act; and if such work was carried out on or before the approval is not recognized u/s 80IB (10) of the Act and the profit earned on the whole project does not entitle for exemption; 5. Aggrieved, the assessee took up the issues for all the AYs under challenge with the Ld. CIT (A) for solace. The Ld. CIT (A) had, after due consideration of the assessee s version as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIT v. Radomir Dzelatovie (1994) 206 ITR 320 has held that the appellant could not be denied the benefit of the exemption for the delay on the part of the Central Government and once the approval was accorded, it relates back to the date of application and, accordingly, the appellant was entitled to the exemption admissible under the Act. Thus, legally also the appeal deserves to be allowed. 7.1. From the angle of practicality also, a prudent businessman will not keep his own or borrowed funds idle without using the same in commencement of construction of housing project/building waiting for the approval of the apposite authority for a long period when there is no specific provision that after a lapse of such period from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand with judicial backing which requires no intervention by this Bench at this juncture. 7. We have carefully examined the rival submissions, diligently perused the relevant case records and also the case laws on which either party had placed unstinted faith. 7.1. It was an undisputed fact that the assessee had furnished an application with supporting necessary documents to the local authorities, namely, Bangalore Development Authority (BDA) on 8.10.2004 seeking approval of the housing project. The Commissioner, BDA, being the competent authority vide his order No.9934 dated 28.3.2005 had granted the approval of the housing project as evidenced by the communication of the BDA dated: 4.4.2005. However, the Revenue took a diverge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that the project was approved for construction w.e.f. 4.4.2005. Nonetheless, the approval was accorded by the competent authority -Commissioner, BDA on 28.3.2005 itself vide No.9934 which was, of course, communicated on 4.4.2005. What really matter here is the date of approval of the plan, but, not the date on which it was communicated? In this connection, it is worthwhile to recall the judicial pronouncements on similar issues. (i) The Hon ble Bombay High Court in the case of CIT v. Bhaichand Amoluk Consultancy Pvt. Ltd. (1994) 208 ITR 01 (Bom) had ruled thus - It is also clear from the fact that the application for approval could be made to the Board any time before the first day of October of the assessment year in rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be denied the benefit on account of delay on the part of the Central Government in according approval when the employer had done everything necessary. We have heard counsel for the parties. We have carefully considered the facts of the case. We are of the clear opinion that the assessee being eligible to get the benefit of exemption under section 10(6)(viia)(I)(B) of the Act and the employer of the assessee having complied with all the requirements laid down in the Act for that purpose, the benefit cannot be denied to him because of delay on the part of the Central Government in according approval. In such cases the approval, once accorded, has to relate back to the date of the application. It is the only just and reasonable in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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