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TMI Blog2024 (6) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... d - assessee is neither following cash system nor mercantile system completely - HELD THAT:- As decided in the assessment years 2008-09 2009-10 [ 2016 (5) TMI 1555 - ITAT DELHI] Tribunal decided the issue in appeal in favour of the assessee by sustaining the order of the CIT(A) in holding that the project completion method adopted by the assessee is the right method for determining the profits. Ld. CIT(A) also held that the Assessing Officer should not have been disturbed the project completion method followed by the assessee regularly and there is no cogent reason to change the method. We further observe that the appeal of the Revenue has been dismissed by the Hon ble High Court [ 2017 (5) TMI 1824 - DELHI HIGH COURT] holding that there is no substantial question of law. Hon ble High Court held that the question whether the addition made by the Assessing Officer to the income of the Respondent for the relevant year based on percentage completion method was not correct as held by the ITAT stands answered in favour of the assessee and against the Revenue in PCIT Vs. Shipra Estate Ltd. Jai Krishan Estate Developers Pvt. Ltd [ 2016 (11) TMI 1758 - DELHI HIGH COURT] - Decided against r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition or disallowance for violation of these clauses u/s 80IB(10) of the Act in the assessment order. Similarly, there is no specific adjudication on this aspect of the matter by the CIT(A). In such circumstances, we find no merit in the ground raised by the Revenue. Thus, this ground is rejected. Assessee appeal allowed. - Shri Challa Nagendra Prasad, Judicial Member And Dr. B.R.R. Kumar, Accountant Member For the Assessee : Shri Rajkumar, CA For the Revenue : Ms. Amisha Gupt, CIT DR ORDER PER C.N. PRASAD, J.M. These two appeals are filed by the Assessee and Revenue against the order of the Ld.CIT(Appeals)-19, New Delhi dated 25.04.2016 for the AY 2012-13. Assessee in its appeal raised the following grounds: - 1. That the Ld. Commissioner of Income Tax (Appeals) grossly erred in disallowing deduction u/s 80IB(10) of the Income Tax Act, 1961 in respect of corner units of which area as determined by the District Valuation Officer, Delhi of the Income Tax Act, 1961 exceeds the limit of 1,000 sq. fts., even when a certificate from an architect was filed stating the area of such units to be below 1,000 sq. fts. 2. That the Ld. CIT(Appeals) grossly erred in disallowing deduction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed in clause (e) of section 80IB( 10) of the Act Once the area of projected terrace (open to sky) is excluded then there is no dispute that the residual built-up area of six units in question falls within the prescribed limit of 1500 sq.ft. As a result, we hold that assessee fulfills the condition prescribed in clause (c) of section 80IB (10) of the Act with regard to the six units in question. Therefore, we set-aside the order of the CIT(A) and direct the Assessing Officer to consider that the six units in question fulfill the condition prescribed in clause (e) of section 801 B(10) of the Act and the assessee is entitled to the benefit of section 80IB(10) of the Act. 37. In the proceedings before us, the Department could not point out any judgment/judicial precedent to the contrary. We accordingly hold that the balconies open to the sky are to be excluded from the calculation of the built-up area of a particular residential unit. We, therefore, direct that the assessee be allowed the claim of deduction u/s 80IB (10) in respect of flats (at S.Nos. 2 3 as in the chart reproduced in on Para 28 of this order) which have been excluded from the benefit of deduction by including the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, no need for adjudication. 10. Ground no.2 is in respect of direction given by the Ld.CIT(Appeals) to the AO to accept the project completion method. Ld. Counsel for the assessee submits that this issue also came up for adjudication in assessee s own case for the assessment years 2008- 09 to 2011-12. Ld. Counsel for the assessee referring to the order of the Tribunal at page 14 para 13 for the assessment years 2008-09 2009-10 submits that the Tribunal upheld the order of the Ld.CIT(A) in accepting the project completion method adopted by the assessee. 11. Ld. DR supported the orders of the authorities below. 12. Heard rival contentions, perused the orders of the authorities below and the order of the Tribunal. We observe that the Tribunal decided the issue in appeal in favour of the assessee by sustaining the order of the Ld.CIT(A) in holding that the project completion method adopted by the assessee is the right method for determining the profits. Ld. CIT(A) also held that the Assessing Officer should not have been disturbed the project completion method followed by the assessee regularly and there is no cogent reason to change the method. This finding of the Ld.CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a separate approval for each housing project is concerned (corresponding to ground no 3 of the Department s appeal), we are of the considered opinion that section 80IB (10) prescribes approval of a housing project. A Housing Project may comprise of both eligible as well as ineligible units. The deduction will be available and limited to the claim on eligible units irrespective of the fact that the entire project comprising of eligible and ineligible units has been approved by the authority by way of a single approval/composite approval. Section 80IB(10) refers to the approval of a housing project but does not prescribe a pre-condition that the deduction will be available in respect of only that unit or part of the project which has been separately approved by the local authority. Hence, it is our considered view that a separate approval for each eligible unit or project is not the intention of the Act. The Hon'ble Madras High Court in the case of Viswas Promoters (P) Ltd. vs ACIT 255 CTR 149 has held that the mere fact that one of the blocks have units exceeding built-up area of 1500 sq ft per se, would not result in nullifying the claim of the assessee for the entire projec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n approved by the 'local authority', it would satisfy the requirement of s. 80- IB(10) of the Act. Pertinently, if the proposition of the Revenue is to be upheld, the same would be quite contrary to the manner in which the expression 'housing project' contained in s. 80-IB (10) of the Act has been understood by the Hon'ble Bombay High Court in the case of Vandana Properties (suvra) and also by the Hon'ble Madras High Court in Viswas Promoters (P.) Ltd. (supra) and Arun Excello Foundations (P.) Ltd. (supra). It may also be pertinent to observe that the Hon'ble Bombay High Court in Vandana Properties (supra) not only noted that the expression 'housing project' is not defined under s. 80-IB(10) of the Act but also noted that the same was not defined even under the relevant local regulations before it, viz. the Mumbai Municipal Corporation Act, 1988 and the Development Control Regulations for Greater Mumbai, 1991. Thus, the Hon ble High Court proceeded to observe that the expression 'housing project' in s. 80-IB(10) would have to be construed as commonly understood. Even in the case before us, there is no dispute that the expression 'hous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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