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TMI Blog2016 (5) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, in respect of the project in question and the income derived therefrom? (2) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal is right in law in holding that the development and construction of the project has commenced prior to 01.10.1998 and consequently the claim under section 80 IB of the Act is not tenable? (3) Whether on the facts and in the circumstances of the case the Income Tax Appellate Tribunal is right in law in coming to the aforesaid conclusion, without taking into account the various documents, evidence and submissions placed before the Tribunal? (4) Whether on the facts and in the circumstances of the case, the order of the Income Tax Appellate Tribunal is not vitiated by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon to determine was whether the assessee had commenced development and construction of the housing project on or after 01.10.1998. The case of the assessee was that the development and construction work commenced on 15.10.1998. 5. The Assessing Officer passed an order dated 31.3.2004 holding that even the pre-construction work which would fall within the definition of the term "development", should be taken to be part of the work of construction and that therefore, the assessee's claim for deduction under Section 80IB(10) should be disallowed. 6. Aggrieved by the order of assessment, the assessee filed a statutory appeal before the Commissioner of Income Tax (Appeals). The Commissioner, by an order dated 20.9.2004, allowed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.10.1998 (xiii) Final approval from Chennai Corporation 05.07.1999 Admittedly, the construction started only on 15.10.98 which is after 1.10.98. Therefore, the appellant fulfills this condition. The Assessing Officer had also not disputed this fact. Therefore, the only issue to be decided is whether or not the appellant commenced "development of the project" before 1.10.98. In case, the appellant commenced the "development of the project" before 1.10.98, the appellant would not be entitled for deduction u/s.80IB(10). In case, it is found that the appellant commenced the "development of the project" after 1.10.98, the appellant would be entitled for deduction u/s.80IB(10) since the appellant would then be fulfilling all the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee should have commenced or commences development and construction of the housing project on or after the 1st day of October 1998 and completed it before a particular date. The date of completion is not of relevance to the case on hand as the focus in this case is only on the date of commencement of development and construction of the housing project. 10. From paragraph 5.6 of the order of the CIT (Appeals), which we have extracted above, it is seen that the Commissioner (Appeals) recorded a finding of fact to the effect that the commencement of construction at site was on 15.10.1998. The CIT (Appeals) went one step further in paragraph 5.6 of his order pointing out that the Assessing Officer had not disputed the said fact. What was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tamil Nadu Town and Country Planning Act, 1971. 14. The second mistake committed by the Tribunal is that the requirement under Section 80IB(10) is a twin requirement. It speaks both about development and construction of the housing project. The conjunction between development and construction, by the use of the word "and", cannot be made a dead letter, by applying the definition of the expression "development" to the phrase "development and construction". Development cannot be the same as development and construction. This twin requirement under 80IB(10) has been omitted to be taken note of. 15. From the finding recorded by the Tribunal in paragraphs 8 to 10 of its order, it is clear that certain expenses incurred by the assessee in remov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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