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TMI Blog2022 (12) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... IDENT And Ms. MADHUMITA ROY , JUDICIAL MEMBER Appellant by : Shri James Kurian , CIT DR Respondent by : Shri Vartik Choksi , A. R. ORDER Per Ms Madhumita Roy JM Both the appeals filed by the Revenue are directed against the order dated 23.10.2019 passed by the Commissioner of Income Tax (Appeals)-10, Ahmedabad arising out of the separate orders dated 28.03.2016 23.12.2016 passed by the DCIT, Circle-2(2), Ahmedabad under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) for A.Y. 2013-14 2014-15 respectively. 2. The sole issue for consideration before us is as to whether the assessee is entitled to deduction under Section 80IB(10) of the Act to the tune of Rs. 42,52,86,128/- under the present facts and circumstances of the case. 3. The brief facts leading to the case is this that appellant is a partnership firm engaged in the business of real estate filed its return of income on 28.09.2013 declaring total income at Rs. NIL. The appellant also claimed deduction of Rs. 42,52,86,128/- under Section 80IB(10) of the Act in respect of the project at Atlantis Park, Sughad. Necessary details in order to establish the claim o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowing the claim of the assessee the Ld. CIT(A) observed as follows: 4.5 During the course of appellate hearing, Appellant has also relied upon following decisions of Hon'ble Pune ITAT and ratio of these decisions are also applicable on facts of the case. (i) Hon'ble Pune Bench in case of Rahul Construction Co. reported in 21 taxmann.com 435 (ii) Hon'ble Pune ITAT in case of Anand Ashok Gandhi in ITA No. 2004/PUN/2014 dated 25.05.2016 Claim of pro-rata deduction u/s. 80IB(10) - non-completion of the few buildings-Held that-We find the assessee in the instant case is an individual and engaged in the activity of Promoters and Builders in the name and fashion of Harshad Constructions . During the impugned assessment year the assessee has constructed a housing project at Ashok Nagar, Handewadi Road, Hadapsar, Pune. The commencement certificate for this project was received by the assesses on 14-02-2007 which was subsequently revised on various dates. As per the original plan passed by the Municipal authorities, there are three buildings, viz., A, B and C. The assessee has submitted the completion certificate only for Buildings B and C but did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not completed housing project within the prescribed period of four years. The matter was carried before first appellate authority, wherein the various contentions were raised on behalf of assessee and having considered the same, the CIT(A) granted relief to the assessee on this account as well. The same has been opposed before us on behalf of revenue. On the other hand, the learned Authorized Representative has supported the order of CIT(A) on the issue. 8.1 After going through the rival submissions and material on record, we find that the issue before us is with regard to prorata deduction u/s. 80IB(10). On the issue of prorata deduction, the ITAT Pune Bench has allowed prorata deduction u/s. 80IB(10) in the case of Ramsukh Properties Vs. DC/7 , Circle 1, Pune in ITA No. 84/PN/2011 vide its order dated 25.07.2012. For the convenience, the relevant portion of the order reads as under: 'We agree to proposition put forward by Ld. Departmental Representative that plain reading of section 80IB(10) of the Act suggests about only completion of construction and no adjective should be used along with the word completion. This strict interpretation should be given in norma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same. 17. In view of categorical finding of the Tribunal that where the project in respect/of buildings A' and B' has been completed by 31.03.2009 and where non-completion of building 'C was beyond the control of assessee, since it had not received FSI within stipulated period, we find no merit in the orders of authorities below in denying deduction under section 80IB(10) of the Act to the assessee for prorata units completed by the assessee before stipulated date, The issue in this regard is settled by various decisions of the High Courts including the decision of Hon'ble Bombay High Court in CIT Vs. Vandana Properties reported in 353 ITR 36 (Bom.), wherein it has been held that the developer is entitled to pro-rate deduction under section 80IB(10) of the act on the completed units. (iv) Hon'ble Pune ITAT in case of M/s. Varun Developers in ITA No. 1624/PN/2011 dated 22.03.2013 In view of detailed discussion made herein above and the contention of AO that BU permission was not received by Appellant within prescribed period for all the blocks for which approval was given are already discussed by various Courts and AO has not brought any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sages approval to be obtained for such housing project, but does not envisage multiple approval or approvals in piecemeal manner. The AO. is also of the view that Section 80-IB(10) uses the word 'approval' and not 'approvals' for housing project. Accordingly, the A.O. came to conclusion that the assessee has failed to fulfill the basic conditions laid down in Section 80-IB(10) and that is why the claim of deduction was disallowed. However, the above contentions of the A.O. is not correct. Firstly, he has not clearly pointed out which of the conditions laid down u/s. 80-IB(10) are not fulfilled by the appellant. As regarding his averment that Section 80-IB(10) uses the word 'approval' and not 'approvals' for housing project it appears that the A.O. has not properly gone through the other provisions of Section 80-IB(10). The word 'approval' can be taken and considered as singular and also multiples when more than one projects are there. In this connection, specific reference is made to the Section 80-IB(10) and the Explanation there below. The Explanation reads as under:-- (i) in a case where the approval in respect of the housing project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the units construction of which has been completed after 31/03/2008 will not be eligible for benefit u/s. 80-IB(10) in any year. From the copies of the commencement and completion certificate issued by the RMC it is found that the same has been issued in the name of appellant-firm M/s. B.M. Brothers for the housing project known as 'Maninagar' on Raiya Road and the same is given for construction of residential units. Further also brochure issued by the appellant-firm says that 'Maninagar' is a residential housing project wherein layout plan also shows that various houses are constructed on adjoining plots from Sr. Nos. 1 to 119 as per the approved layout plan giving place for roads and public plots. These factors also indicate that it is a residential housing project known as 'Maninagar' having composite residential units. The appellant also relied on the decision in the case of Vandana Properties [27 DTR (Mum) 282 (2009)], wherein it has been held by the Hon'ble Tribunal that the approval for separate buildings can be granted and that will not effect the claim of the assessee u/s. 80-IB(10) of the Act. Moreover, the Hon'ble ITAT, Bangalore in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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