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TMI Blog2021 (6) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... it for completion of the eligible project should not be computed from the day on which the lay out was approved for the 1st time on 22.09.2003 but only from the date on which the building plan approval was obtained for the last time on 29.03.2007? (iii) Whether the Tribunal was correct in holding that the completion certificate issued by Pallikaranai Panchayat would satisfy instead of completion of certificate issued by Chennai Metropolitan Development Authority who had originally approved the plan?" " 3. When the appeal is taken up for hearing,Mr. M. Swaminathan, learned Senior Standing Counsel appearing for the appellant fairly submitted that the questions of law that are raised in the above appeal were already decided against the Revenue in the respondent- assessee's own case in respect of the Assessment Year 2009-2010 in I.T.A.No.16650/Mds/2012, dated 12.11.2013 vide para Nos. 21 to 25 of the Judgement, which reads as follows:- " 21. The second issue for our consideration is whether the approval of the Project and completion date is as per section 801B(10) of the Act or not. The assessee, initially entered into an agreement dated 15.06.2004 with 17 land owners to dev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein it was expressed an opinion that if a housing project is 'made in a already CMDA approved layout, than in such case, the Competent Authority for issue of planning permission and building permit for independent buildings in each plot under ordinary building category is Pallikaranai Town Panchayat previously and Chennai Corporation now. In the case of the assessee, the assessee had entered into an agreement with the landowners and paid an advance and developed the land and after negotiation with prospective buyers, he has sold the plots and constructed independent houses. Therefore, in our opinion, the approving authority is local authority i.e. Pallikaranai Panchayat. Hence, no separate CMDA approval is required In the assessment order, the Assessing Officer has raised one more objections that the " date on which the layout approved has to be taken into consideration for the purpose of approval of the project. We find no reason to take layout approval date for approval of the housing project for simple reason that the layout was approvecton 22,09.2003 and" subsequently "assessee had entered into an agreement with the land owners on 15.06.2004. When the layout was approved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the Explanation provides that for the purposes of section 80IB(10) the housing project shall be deemed to have been approved on the date on which the first approval was granted by the local authority. Thus, the Explanation to section 80IB(10)(a) refers to approval granted to the same housing project more than once and the said Explanation would not apply where the approval is granted to different housing projects". In the present case, at the cost of repetition, we have to state that the so called initial approval on 06.05.2005 was, in fact, obtained in respect of 3 prototype units. It will be mislettding, Vwe say that the said approval of the prototype units cover the entire units of the project and the said approval should be taken at the approval for the whole project. Such a conclusion will be a travesty of truth. It is on the basis of the approval of the prototype units that the assessee had finalized its project and commenced negotiations .with potential customers. When the assessee was successful in selling out the individual units of the project on the basis of the prototype, the occasion actually arose to the assessee to seek for the approval of the projects as a whol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale deed was not registered in the name of the assessee and therefore, the assessee was not owner of the land and not eligible for deduction under section 801B(10). The Id. DR has also raised this objection at the time of hearikg. This aspect was considered by the Bombay Bench of ITAT in the case of Essem Capital Markets Ltd. V. ITO (2011) TIOL 196 (ITAT Mum), wherein the Tribunal held that deduction. under section 80IB(10) cannot be denied on the ground that the. assessee is not the owner of the property, which he undertakes to develop nor can it be denied on the ground that the development agreement is not registered. In another case C1T v. Radhe Developers [20]2] 341 1112 403 (Gu]), wherein the Hohrble Gujarat High Court has observed that section 80113(10) allows deduction to an undertaking engaged in the business of. developing and constructing housing projects, there is no requirement that the land must be owned by the assessee seeking the deduction. Further, as the assessee was in part performance of the agreement to sell the land, given possession and had also -carried out the construction work for the development of the housing project, it had to be deemed to be the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be the subject matter of inclusion as built up area to deny the benefit under section of the Act. Further, the Honsble Jurisdictional High Court in another case C'IT v. Mahalakshmi Housing (supra), the Hon'ble High Court has. observed that "as per the issue in respect of inclusion of open terrace area within the built up area is concerned, the Court has already held the issue against the Revenue and the decision rendered in T.C.A No. 581 of 2008,1186 of 2008 and 136 of 2009 the case of M/s. Ceebros Hotels Private Limited v. DCIT dated 19.10.2012 and accordingly, the order of the Tribunal on this issue is set aside. The assessee's appeal viz. T.C.A. No. 318 of 2012, stands allowed holding that open terrace area cannot form part of built up area and the assessee would be entitled to deduction under section., 801B(10) of the Act. Keeping in view of the facts and circumstances and the decision of the Hon'ble 'Jurisdictional High Court and respectfully following the same, the open terrace area could not. be included in the built up area for the purpose of benefit under section 801B(10) of the Act. The Id. CIT(Appeals) has elaborately discussed the issue in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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