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TMI Blog2014 (10) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... housing project was approved by the local authority on 28.05.2003 wherein construction of H-1, H-2, H-3 & G building and first floor of H-4 building were sanctioned and completion certificate was admittedly not issued by Pune Municipal Corporation with respect to building H-4. 3. The Learned Commissioner of Income-tax (Appeals) erred in holding that the amendment to sub section (f) to section 80IB (10) of the Act is not applicable to the assessee's case without appreciating the fact that the amendment was made effective from 01.04.2009 by the Finance Act (No.2) 2009. 4. The Learned Commissioner of Income-tax (Appeals) erred in not appreciating the fact that the agreement for sale of flat allotted to the spouse of the Mr. Gurdas Andar who was already allotted flat alongwith this son in the housing project, was registered on 07.07.2009 i.e. after the introduction of the Finance Act (No.2) 2009 in the Legislation on 06.07.2009. 3. The issue in Ground Nos. 1 and 2 raised by the Revenue are against the deduction claimed under section 80IB (10) of the Act. 4. The Ld. AR for the assessee at the outset pointed out that the issue raised by the Revenue in Grounds of appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rising of H-1, H-2, H-3 and G building was completed for which the completion certificate was issued by the PMC on 19-03-2008 and 06-03-2007, the conditions prescribed under section 80IB (10) were complied with and as such it was entitled to be claim of the said deduction. The assessee also clarified before the Assessing Officer that no claim of deduction under section 80IB (10) was made in respect of H-4 building. The Assessing Officer, however, disallowed the deduction under section 80IB (10) of the Act as PMC had not issued the final completion certificate to Harsh Paradise project as the housing project was not completed due to non-completion of building H-4 of the project. The assessee was held not be eligible for claiming the said deduction under section 80IB (10) of the Act. 8. The CIT(A) allowed the claim of the assessee as similar claim of deduction under section 80IB (10) of the Act in respect of the completed flats in building other than H-4 building was allowed by the Tribunal in assessee's own case relating to assessment year 2008-09 in ITA No. 1624/PN/2011 vide order dated 22.03.2013. 9. We find that similar issue of claim of deduction under section 80IB (10) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 sq.mtrs. as detailed above. So irrespective of non-construction of building H-4, assessee is entitled for its claim of deduction u/s.80IB (10) with regard to these buildings H-1, H-2, H-3 & G, because, these are on standalone basis, fulfilled the conditions with regard to claim of deduction u/s.80IB(10). 15. We find that ITAT Pune Bench in the case of Rahul Construction Co. (supra) has held that the Assessing Officer has to verify as to when the building plan of these buildings were firstly approved by the local authority and taking the said date of approval as starting point, he has to verify as to whether these buildings were completed within prescribed time limit, i.e., 31.03.2008 on the basis of completion certificate in respect of such housing project issued by the PMC. In case before us, Revenue authorities have not disputed the fact that assessee has completed the construction in respect of buildings H-1, H-2, H-3 and G as discussed above. There is also no dispute of area of the plot as laid down in provisions of section 80IB (10) of the Act, on which project took place. Only dispute is that building H-4 was not completed at relevant point of time so claim of assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra), Satish Bohra & Associates (supra). Accordingly we hold that assessee is entitled to the claim of deduction u/s.80IB (10) in respect of all buildings except building H-4. The Assessing Officer is directed accordingly." 10. It is an admitted fact that the facts and circumstances of the present case are identical to the facts and circumstances in the earlier years i.e. assessment years 2008-09 and 2009-10 and following the same parity of reasoning, we hold that the assessee is entitled to claim of deduction under section 80IB (10) of the Act in relation to the profits derived from the housing project Harsh Paradise. Thus, we uphold the order of the CIT(A) and dismiss the grounds of appeal No. 1 and 2 raised by the Revenue. 11. The issue raised in grounds of appeal no. 3 and 4 are in relation to the applicability of the amended provisions of sub section (f) to section 80IB (10) of the Act. 12. The brief facts relating to the issue are that the assessee firm had sold flat no. 401 to Gurudas Andar and Yogesh Andar during the financial year 2007-08. Further on 16-06-2009 Nalini Andar and Gurudas Andar have paid Rs. 5,00,000/- and booked another flat no. 402. The stamp duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the order of the Assessing Officer. 15. The Ld. AR for the assessee pointed out that finance bill was introduced on 06-07-2009 and was passed on 19-08-2009. However, the assessee had booked the flat prior to even introduction of the finance bill and since the said flat was allotted prior to passing of the relevant provisions of the Act, the deduction claimed under section 80IB (10) of the Act cannot be denied to the assessee. 16. We have heard the rival contentions and perused the record. In the facts of the present case before us, the assessee had allotted one flat in financial year 2007-08 in the housing project to one Shri Gurudas Andar and his son. The said flat was allotted on 03-11-2007 as per the sale deed placed at page 86 of the paper book. Thereafter the wife of Shri Gurudas Andar, Mrs. Nalini Andar booked another flat in the said flat by paying an advance of Rs. 5,00,000/-. The said cheque was paid on 16-06-2009 and has been credited to the account of the assessee on 16-06-2009. The copy of account of Mrs. Nalini Andar in the books of the assessee is placed at page 82 of the paper book and the copy of the bank statement evidencing the credit of Rs. 5,00,000/- is pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idential unit in such housing project shall be allotted to any individual or the spouse or the minor children of such individual, the Hindu undivided family, in such 1 individual is the karta or any person representing such individual, the spouse or the minor children or the Hindu undivided family. In other words if an individual, had been allotted a residential unit in any housing project then such individual or the spouse of such individual or the minor children of such individual including the Hindu undivided family in which he is the karta or any person representing above said person are not entitled to be allotted any other residential unit, in such housing project. And in case of violation of the said provisions of the Act, the assessee who had so allotted the flats to such persons, shall not be entitled to claim of deduction under section 80IB (10) of the Act. The said provisions were inserted by the Finance (No. 2) Act, 2009 w.e.f. 01-04-2010. 19. Now coming to the facts of the present case, the assessee had allotted one flat to Shri Gurudas Andar in the financial year 2007-08 thereafter the wife of Shri Gurudas Andar i.e. Mrs. Nalini Andar had booked another flat in June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter deducting the payment made under the voluntary retirement scheme. In view of the decisions of the jurisdictional High Court the assessee was allowed to deduct expenditure incurred on payment to workers towards voluntary retirement scheme. Since section 35DDA was introduced by the Finance Act, 2001, with effect from April 1, 2001, and received assent on May 11, 2001, the assessee could not have envisaged that it would retirement payments, which were otherwise allowable. Further 13 become liable for payment of tax even against voluntary the assessee had paid a sum of Rs. 90,00,000 on August 6, 2001, as self-assessment tax, i. e., much before the filing of the return on October 30, 2001, which also proved the bona fides of the assessee. On the above two grounds the Tribunal accepted the case that the assessee was not subject to advance tax. The findings of the Tribunal were based on valid materials and evidence and did not warrant interference. 22. Applying the ratio laid down by the Hon'ble Supreme Court in the case of Krishnaswamy S. Pd. v. Union of India (supra) and Hon'ble Madras High Court in the case of CIT Vs. Revathi Equipment Ltd. (supra), we hold that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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