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TMI Blog2017 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal of Revenue for Assessment Year 2010-2011 is directed against the order of the Commissioner of Income-tax (Appeals)-11, Ahmedabad dated 29.01.2015 vide appeal No.CIT(A)-11/485-R/CC.2/2014- 15, arising out of order u/s 143(3) of the Income-tax Act, 1961 (herein after referred to as the Act ) dated 25.03.2013 framed by the DCIT, Central Circle-2, Rajkot. 2. The solitary grievance of the Revenue is against the order of the ld. CIT(A) in allowing assessee s claim of deduction under Section 80IB(10) of the Act at ₹ 53,43,074/-. 3. Briefly stated facts, as culled out form the record, are that the assessee is a partnership firm, engaged in the business of real estate and building construction. Return of income for AY 2010-11 was filed on 08.07.2010 showing Nil income after claiming deduction under Section 80IB(10) of the Act at ₹ 53,43,074/-. Case picked up for scrutiny under CASS and notice under Section 143(2) followed by 142(1) along with detailed questionnaire was issued. Necessary replies with details as called for were furnished. The assessee has undertaken a residential project called Jivraj Township which was commenced during FY 2006-07. The ld. Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uildings can be granted and that mil not affect the claim of the assessee u/s 80IB(10) of the Act .' It was also brought to the notice of the ld. CIT(A) that the approval of building plan in piecemeal is needed to be submitted separately as per conditions laid down by the statutes in this regard. After considering the facts and the submissions, the ld. CIT(A) drew support from the decision of the Hon'ble Jurisdictional High Court in the case of B.M. and Brothers 42 Taxmann.com 24, The relevant extract of the decision in the case of B.M. and Brothers (supra) is as under:- 5. We have heard Shri Pranav Desai, learned Counsel appearing on behalf of the appellant-revenue and considered the orders passed by the ITAT as well as CIT(A). It is required to be noted that the layout plan of the 'housing project' named 'Maninagar' at Rajkot came to be approved by the Assistant Town Planner on 30/03/2002 as also by the Collector, Rajkot on 17/04/2002 i.e much before the date 01/04/2004, which is the cut-off date. The said 'housing project' was with respect to 119 units. It was found that, out of 119 units, on most of the plots, after getting necessary appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the local authority. Thus, from (I) above, it is clear that more than one approvals has also been envisaged by the Legislature in the Act and that is why it is mentioned 'in a case where the approval in respect of the housing project is obtained more than once..,'. Thus, there is no bar in the Act for obtaining more than one approval. The basic fact is that the A.O. is to see whether the conditions laid down u/s. 80-IB(10) are cumulatively fulfilled or not? Here, in the case of appellant, the housing project 'lay out plan has been approved by the Assistant Town Planner to RMC on 30/03/2002 as also by the Collector, Rajkot on 17/04/2002, which is much before the date 01/04/2004 which is the cut-off date. As far as the date of commencement is concerned, it has no relevance under the provisions of Section 80-IB(10) of the Act because the provisions only speak about the approval or date of completion. As far as the condition of the area of project is concerned it should be more than one acre, here in the case of appellant the project 'Maninagar having 119 units -was constructed on an area of 3.33 Acres. Similarly, the condition regarding built-up area per un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act and that the A.O's averment that on the basis of multiple approvals 80-IB deduction can be disallowed - is held to be incorrect. Accordingly, the claim of deduction made by the appellant u/s. 80-IB is allowed and the addition made of ₹ 1,45,67,940/- is hereby ordered to be deleted. However, the A.O. is directed to see if the construction of any unit is completed after 31/03/2008 during the year the eligible profit on the sale should be excluded from the 80-IB(10) deduction. Similarly for the assessment year subsequent to the A. Y. 2008-09 also he should keep in mind that whatever units -which are sold after A.Y. 2008-09 and where date of completion is after 31/03/2008 no deduction u/s. 80-IB(10) should be allowed out of eligible profit. Accordingly, this ground of appeal is partly allowed.' The Tribunal confirmed the aforesaid findings and has dismissed the appeal preferred by the revenue. 6. Considering the provisions of Section 80-IB(10) of the Act when the 'housing project named Maninagar' at Rajkot was approved prior to 01/04/2004 and different units were constructed before 31/03/2008, it cannot be said that ITAT has committed an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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