9911796707
TMI Blog2017 (5) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 was filed on 08.07.2010 showing Nil income after claiming deduction under Section 80IB(10) of the Act at Rs. 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 Officer denied the deduction under Section 80IB(10) of the Act by observing that the assessee was unable to get approval of the housing project by the Municipal Corporation as separate building plans for each of the units. 4. Aggrieved, the assessee went in appeal before the ld. CIT(A) and succeeded as ld. CIT(A) followed the judgment of Hon'ble jurisdictional High Court in the case of B.M. and Brothers, reported in (2014) 2 Taxmann.com 24, and observed that as the assessee has taken the approval in respect of the housing project more than once and it shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority and accordingly held that assessee was eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired 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 approvals, constructions were already completed. Considering the above, ITAT granted deductions under Section 80- IB(10) of the Act with respect to those units constructed and completed prior to 31/03/2008. The C1T(A) while granting deduction under Section 80-IB(10) of the Act with respect to those units approved prior to 01/04/2004 and granted prior to 31/03/2003 has observed in paragraph 3,4 as under: '3.4 I have carefully considered the finding given by the Assessing Officer and the contentions of the AR of the appellant. The main basis of not allowing deduction u/s. 80-IB(10) by the A.O. appears to be the averment of the A.O. that the assessee has taken 69 approvals for construction and therefore it could not be construed approval for the entire projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, 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 unit should be less than 1500 sq. ft. and there is no dispute regarding that in the appellant's case also because all the 119 units are having less than area of 1500 sq.ft. As regarding the date of completion it has been laid down in Section 80- IB(10) that the construction should be completed on or before 31/03/2008. Here, in the case of appellant, it is found that most of the units have been completed before 31/03/2008. However it is found that out of 119 units, construction of some of the units was completed after 31/03/2008 as shown in the Table on pages 7 & 8 of the assessment order. The argument of the AR of the appellant is that during the year under consideration only 21 units have been sold and in case of all these units- construction was completed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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 any error granting deduction under Section 80-IB(10) of the Act with respect to only those units of 'housing project' named 'Maninagar' approved prior to 01/04/2004 and of which constructions have been completed prior to 31/03/2008. It cannot be disputed that the 'housing project' named 'Maninagar' was already approved prior to 01/04/2004 with respect to different units. The 'housing project' was approved prior to 01/04/2004 and constructions that have been put up have been completed prior to 31/03/2008.' 9. Following the decision of the Hon'ble Jurisdictional High Court, the ld. CIT(A) directed the A.O. to allow the claim of deduction u/s 80IB(10) of the Act. 10. Aggrieved by this, the revenue is before us. At the very outset, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
