2019 (2) TMI 1440 - HC - Income Tax

High Court: Project start post-approval qualifies for tax deduction under Section 80IB(10)

The High Court held that the housing project commenced post-approval on 30th September 1998, satisfying the criteria for deduction under Section 80IB(10) ... Entitlement to the benefit of deduction u/s 80IB(10) - assessee had undertaken the housing project known as 'Jai Hind' - date of approval of the said project by the local authority was given on 30th September 1998, just one day prior to the cut off date given under Section 80IB(10) - HELD THAT:- The expenditure incurred by the assessee prior to the cut off date of 01.10.1998 is not in the nature of development and commencement of the housing project itself and that the expenditure incurred in levelling of the land and construction of the compound wall was to protect the land in question so that the project could be commenced and completed once it is approved by the concerned public authority. The approval in question was admittedly given on 30th September 1998 and therefore, the commencement of the project could only take place thereafter. There is no dispute that the project in question was completed before outer and cut off date, namely 31st March 2008. Therefore, the concurrent findings of the facts given by the two appellate authorities below that the commencement of the project was done within the statutory time frame and accordingly, deduction under Section 80IB(10) was allowable to assessee - Decided in favour of assessee. Issues:1. Interpretation of Section 80IB(10) for deduction under the Income Tax Act.2. Commencement of housing project and eligibility for deduction.3. Expenditure incurred before the cut-off date of 01.10.1998.4. Application of statutory provisions for deduction eligibility.5. Comparison with a similar Delhi High Court decision.Analysis:1. The appeal under Section 260A of the Income Tax Act questioned the entitlement of the assessee to a deduction under Section 80IB(10), which allows a 100% deduction for housing projects meeting specific criteria approved before 31st March 2007 and commencing development after 1st October 1998.2. The case revolved around the timing of the commencement of the housing project 'Jai Hind,' with the Commissioner of Income Tax and the Tribunal finding that the project began after the cut-off date of 01.10.1998, despite some expenditure being incurred earlier. The approval by the public authority on 30th September 1998 was crucial for the project's commencement.3. The Tribunal noted that the expenditure before 01.10.1998 was for land purchase advances, levelling, and planning, with no construction possible before the official approval on 30th September 1998. The project's commencement was deemed to occur only after the approval, as highlighted in the Tribunal's order.4. The Revenue contended that any pre-cut-off date expenditure indicated project commencement, thus disqualifying the assessee from the deduction. However, the assessee argued that the project truly began post-approval, satisfying the statutory conditions for deduction under Section 80IB(10).5. Citing a Delhi High Court decision, the assessee emphasized the importance of approval dates for determining project commencement. The Delhi High Court's pragmatic approach in a similar case supported the view that expenditure pre-cut-off date did not equate to project initiation, aligning with the assessee's position.6. The High Court agreed with the assessee, affirming that pre-cut-off date expenditure was preparatory and not indicative of project commencement. The project officially started after the approval on 30th September 1998, meeting the statutory timeline and qualifying for the deduction under Section 80IB(10). Consequently, the Revenue's appeal was dismissed, upholding the lower authorities' findings in favor of the assessee.