2014 (2) TMI 595 - AT - Income Tax

Appeals Granted: Deduction for Completed Buildings Under Section 80IB(10)

Runwal Multihousing Pvt. Ltd. Versus Asst. Commissioner of Income Tax

The Tribunal partially allowed the appeals, granting the assessee deduction under Section 80IB(10) for completed buildings and row houses despite not ... Survey u/s 133A of the Act - Eligibility of the project to deduction u/s.80IB(10) of the Act – Effect of amendment – Requirement of completion of the housing project - Held that:- The assessee obtained the permission for construction of buildings A, B, C, D, E, F and 17 row houses on 12-12-2001 - The assessee constructed building Nos. A,C, D and E and the 17 row houses and dropped the idea of construction of Building Nos. B and F being uneconomical and had not submitted any revised plan to PMC - the assessee applied for completion certificate on 22-01-2004, the same was not received by the assessee before 31-03- 2008. Completion certificate from PMC – Held that:- The decision in City Development Corporation Vs. ACIT [2013 (7) TMI 198 - ITAT PUNE] followed - The completion certificate was applied for before 31-3- 2008 i.e. on 12-3-2008 - denial of deduction u/s 80-IB(10) on such score is uncalled for – thus, the assessee has complied with the condition of completing the construction of the project within the mandated date of 31-3- 2008 even with regard to building 'E' - since the assessee has done whatever possible on his part, i.e. duly applied to PMC for issue of completion certificate, handed over possession of the flats/row houses to the respective buyers, PMC has started levying municipal taxes and electricity bills paid by respective owners – thus, the deduction u/s.80IB(10) cannot be denied to the assessee for non-receipt of completion certificate from PMC before 31-03-2008 which was beyond the control of the assessee – thus, the order of the CIT(A) denying benefit of deduction u/s.80IB(10) for non-receipt of completion certificate is set-aside and the grounds raised by the assessee on this issue are allowed. The decision in M/s. Rahul construction Co. Vs. ITO [2012 (6) TMI 319 - ITAT PUNE] followed - The approval of the housing project and approval of building plan are two different concepts – the housing project does not necessarily have to be various group of buildings constructed on that particular land, but it can also be a particular building or any building which is part of a large project - whatever portion of the housing project is otherwise found to be eligible has to be considered as a housing project for the purpose of deduction u/s. 80 IB (10) of the Act - the use of the words “residential units” in cl.(c) of s.80IB(10) means that deduction should be computed unit-wise – Thus, if a particular unit satisfies the condition of s.80IB, the assessee is entitled for deduction and it should be denied in respect of those units only which do not satisfy the conditions - whatever portion completed by the assessee which satisfies the conditions prescribed u/s.80IB(10) is eligible for deduction – thus, the assessee is eligible for deduction u/s 80IB(10) in respect of building No. A,C,D, E and the 17 row houses – Decided partly in favour of Assessee. Issues Involved:1. Validity of reopening the assessment under Section 147.2. Eligibility for deduction under Section 80IB(10) regarding the completion of the housing project.3. Impact of not constructing certain buildings (B and F) on the eligibility for deduction under Section 80IB(10).4. Pro-rata deduction under Section 80IB(10) for partially completed projects.Issue-wise Detailed Analysis:1. Validity of Reopening the Assessment under Section 147:The assessee challenged the reopening of the assessment under Section 147, arguing that it was beyond four years from the relevant assessment years and based on a mere change of opinion. However, the CIT(A) upheld the reopening, relying on the Supreme Court's decision in ACIT Vs. Rajesh Jhaveri Stock Brokers (P) Ltd. The Tribunal dismissed the grounds relating to the validity of reassessment proceedings as the assessee did not press these grounds during the hearing.2. Eligibility for Deduction under Section 80IB(10) Regarding the Completion of the Housing Project:The core issue was whether the assessee was eligible for deduction under Section 80IB(10) despite not obtaining the completion certificate from the local authority before 31-03-2008. The assessee argued that it had completed the construction and applied for the completion certificate on 22-01-2004, but the certificate was not issued due to reasons beyond its control. The Tribunal noted that the assessee had handed over possession to flat owners before 31-03-2008, municipal taxes were levied, and electricity bills were paid by owners, indicating substantial completion. The Tribunal relied on several precedents, including the Pune Bench's decision in City Development Corporation Vs. ACIT and the Gujarat High Court's decision in CIT Vs. Tarnetar Corporation, which held that if substantial compliance is established, minor deviations should not vitiate the purpose of the deduction.3. Impact of Not Constructing Certain Buildings (B and F) on the Eligibility for Deduction under Section 80IB(10):The revenue argued that the project was incomplete as Buildings B and F were not constructed. The Tribunal, however, found that the constructed buildings (A, C, D, E, and 17 row houses) were on a plot area of more than 1 acre and met the conditions of Section 80IB(10). The Tribunal cited the Pune Bench's decision in M/s. Rahul Construction Co. Vs. ITO, which held that whatever portion of the housing project satisfies the conditions should be considered for the deduction. The Tribunal concluded that the assessee was entitled to the deduction for the completed buildings and row houses.4. Pro-rata Deduction under Section 80IB(10) for Partially Completed Projects:The Tribunal addressed the issue of whether the assessee could claim a pro-rata deduction for the completed portion of the project. It referred to the Bangalore Bench's decision in Dy.CIT Vs. Brigade Enterprises (P) Ltd., which allowed pro-rata deduction for eligible units within a larger project. The Tribunal held that the assessee was eligible for deduction under Section 80IB(10) for the completed buildings (A, C, D, E) and 17 row houses, even if Buildings B and F were not constructed.Conclusion:The Tribunal allowed the appeals partly, granting the assessee the deduction under Section 80IB(10) for the completed buildings and row houses, despite the non-receipt of the completion certificate before 31-03-2008 and the non-construction of Buildings B and F. The decision emphasized substantial compliance with the conditions and the pro-rata approach for partially completed projects.