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TMI Blog2016 (12) TMI 1888X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80 IB(10) of the Act. In the spirit of what has been laid down supra in our considered opinion, assessee is fully justified in considering Buildings No. 2 5 in the complex of Balaji Garden as a housing project for the purposes of claiming deduction under section 80 IB (10) - Clearly on this aspect the CIT misdirected himself and, therefore, in this view of the matter the issue as to whether the other buildings have been completed within the time frame is not at all relevant to evaluate assessee s claim for deduction under section 80IB (10) of the Act in the instant year. In so far as the said project comprising of Buildings No.2 5 is concerned, the same has been completed on 19/03/2010, when assessee s architect submitted application to the local authority for issuance of Occupancy Certificate. The aforesaid is clearly born out of the completion certificate issued by the concerned local authority i.e. Kalyan Dombivali Municipal Corporation, Kalyan dated 17/09/2013 - assessee has referred to the decision of the Court of Joint Civil Judge, Kalyan dated 25/11/2010, wherein it is decreed that the Occupancy Certificate and Completion Certificate as per provisions of Rule-38 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Clearly, it is not a case of any lack of enquiry. In fact, as our aforesaid discussion shows, the CIT has misdirected himself on both the counts namely non-consideration of Buildings No. 2 5 as a project for the purposes of section 80 IB(10) of the Act and regarding the built-up area of some of the units as prescribed in section 80IB(10(c) of the Act. Under these circumstances, in our view, there was no justification for the CIT to uphold that the assessment order dated 13/01/2014 is erroneous in so far as it is prejudicial to the interest of the Revenue within the meaning of section 263 of the Act, qua the claim of deduction under section 80IB(10) of the Act allowed by the Assessing Officer. We hereby set-aside the order of the CIT and restore the assessment order passed by the Assessing Officer under section 143(3) - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under section 143(3) of the Act dated 13/1/2014, the Assessing Officer notes that during the year under consideration assessee had completed Buildings No.2 & 5 in the above project and the resultant profit has been subject to the claim of deduction under section 80 IB(10) of the Act. It is also noted by the Assessing Officer that in so far as Buildings No.3,4 & 8 are concerned, the profits arising from the said buildings was considered in the assessment year 2010-11, where the claim of deduction made under section 80 IB(10) of the Act was examined and allowed. After noticing so in para- 3 of the assessment order, the Assessing Officer has noted that the occupancy certificate with respect to Buildings No.2 & 5 have deemed to have been granted on 19/03/2010 and thereafter, he has referred to a detailed explanation of the assessee, wherein each of the condition mentioned in section 80IB(10) of the Act are stated to have been complied with. Thereafter, in the computation of income, the Assessing Officer has allowed the claim of deduction claimed by the assessee under section 80IB(10) of the Act with respect to Buildings No.2 & 5 of Rs. 13,23,43,671/-. 4. The CIT in the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of section 80 IB(10) of the Act. 5.1 In this context, the Ld. Representative for the assessee pointed out that the expression 'housing project' is not defined in section 80 IB(10) of the Act and that as per the available judicial pronouncements, it has been held that whatever portion of the project which satisfies the conditions of section 80 IB(10) of the Act, the same can be considered as a project for the purposes of availment of deduction under section 80 IB(10) of the Act. In this context, he has referred to the judgment of the Hon'ble Bombay High Court in the case of CIT vs. Vandana Properties, 353 ITR 36(Bom) to point out that even one building with several residential unit can constitute a housing project for the purposes of section 80 IB(10) of the Act, provided the same is otherwise in compliance with the conditions of section 80 IB(10) of the Act. It was, thus, contended that the CIT has wrongly observed that the entire 'Balaji Garden' complex consisting of nine buildings is to be reckoned as one housing project. In this context, reliance has also been placed on the following decisions:- (i) Mudit M. Gupta v. ACIT, 51 DTR 217 (Mum-Trib) (ii) Siddhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction in the required manner. In this context, the CIT has directed the Assessing Officer to examine the issue of built-up area of flats and if necessary make physical verification of some of the flats. 7. On this aspect, the Ld. Representative for the assessee pointed out that the CIT has wrongly interpreted the certificate of architect dated 25/11/2013, a copy of which has been placed in the Paper Book at pages 61 to 62. The Ld. Representative for the assessee has referred to the specific observation made by the architect, which is to the effect that the built-up area of the flats certified by him was in terms of the definition of the expression 'built-up area' contained in section 80IB(14) of the Act. It has been pointed out that in terms of the said definition, the 'built-up area' of the flat is inclusive of the balcony/projections and therefore, according to the Ld. Representative for the assessee the built-up area certified by the architect has been completely negated by the CIT without there being any evidence to the contrary. Ld. Representative for the assessee pointed out that such certificate of the Architect was very much available at the time of assessment proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der also. The Ld. Departmental Representative also pointed out that the CIT has ultimately restored the matter to the file of the Assessing Officer for examination afresh, which entails another opportunity to the assessee and under these circumstances the invoking of section 263 of the Act is justified. The Ld. Departmental Representative has also relied upon the Hon'ble Delhi High Court in the case of Ashok Lagani in ITA No. 553 of 2010 and others dated 11th May, 2011 for the proposition that, if the records shows that there was no proper consideration of an issue by the Assessing Officer or that the approach of the Assessing Officer was perfunctory, the CIT was justified in invoking the provisions of section 263 of the Act. 9. We have carefully considered the rival submissions. As we have noted earlier, in the present case, the CIT has found the assessment order as erroneous and prejudicial to the interest of the Revenue within the meaning of section 263 of the Act, on two counts. Firstly, as per the CIT, the completion of construction of the project has not been done within the stipulated period and therefore, the deduction under section. 80IB (10) of the Act has been wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings No. 2 & 5 in the complex of 'Balaji Garden' as a 'housing project' for the purposes of claiming deduction under section 80 IB (10) of the Act. Clearly on this aspect the CIT misdirected himself and, therefore, in this view of the matter the issue as to whether the other buildings have been completed within the time frame is not at all relevant to evaluate assessee's claim for deduction under section 80IB (10) of the Act in the instant year. Moreover, in so far as the said project comprising of Buildings No.2 & 5 is concerned, the same has been completed on 19/03/2010, when assessee's architect submitted application to the local authority for issuance of Occupancy Certificate. The aforesaid is clearly born out of the completion certificate issued by the concerned local authority i.e. Kalyan & Dombivali Municipal Corporation, Kalyan dated 17/09/2013, a copy of which has been placed at page 60A of the Paper Book. Further, the assessee has referred to the decision of the Court of Joint Civil Judge, Kalyan dated 25/11/2010, wherein it is decreed that the Occupancy Certificate and Completion Certificate as per provisions of Rule-38 of the Kalyan-Dombivili Municipal Corporation Deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up area of none of the flats is exceeding the limit of 1000 sq.fts prescribed in clause (c) of section 80IB (10) of the Act . We have perused the order of the CIT and find that he has merely proceeded on a presumption that the built-up area of some of the flats might exceed 1000 sq.fts., if the area of balcony is added. However, we find not even an iota of evidence with the CIT to suggest that the built-up area shown in the certificate of the architect is without including the area of balcony; whereas the certificate clearly mentions that the built-up area is inclusive of the requisite projections and balconies. At the time of hearing, the Ld. Representative for the assessee has also made assertion that in the earlier assessment year of 2010-11, the site inspection was carried out by the Assessing Officer and that there was no adverse finding on this aspect. There is no negation to the aforesaid plea of the assessee and, therefore, considering the material on record, we find that the CIT has proceeded on mere doubt to hold that there is a violation of the provision of clause (c) of section 80 IB(10) of the Act. 10.2 At this stage, we may refer to the stand of the Ld. Departmental ..... X X X X Extracts X X X X X X X X Extracts X X X X
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