TaxTMI 
TaxTMI 
2013 (7) TMI 198
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....sessing Officer asked the assessee to furnish details in respect of this project and justify the claim of deduction u/s.80IB(10) amounting to Rs.30,10,876/-. Rejecting the various explanations given by the assessee and following the order for A.Y. 2007- 08 in assessee's own case the Assessing Officer disallowed the claim of deduction of Rs.30,10,876/- made by the assessee u/s.80IB(10) of the Income Tax Act, 1961. In appeal the Ld. CIT(A) following his order for A.Y. 2006-07 in assessee's own case upheld the action of the Assessing Officer. 3.1 Aggrieved with such order of the CIT(A) the assessee is in appeal before us. 4. After hearing both the sides we find when the matter travelled to the Tribunal, the Tribunal vide ITA No.1489/PN/2009 and ITA No.1100/PN/2010 order dated 17-09-2012 for A.Ys. 2006-07 and 2007-08 respectively allowed the claim of the assessee by holding as under : "12. We have carefully considered the rival submissions. Quite clearly, the dispute is with regard to the completion certificate of building 'E' having been issued by the local authority i.e. Pune Municipal corporation, on 5-5-2008. Subclause (i) of clause (a) to section 80-IB(10) requires....
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.... the Act whereby the construction was to be completed on or before 31-3-2008. Somewhat similar situation was considered by our co-ordinate Bench in the case of Hindustan Samutha Awas Ltd. (supra) wherein also on the strength of architect's certificate, an application for obtaining completion certificate was moved to the local authority on 25-2-2008 but in actuality the completion certificate was issued by the local authority on 10-10-2008. The Tribunal noticed that the delay in issuing completion certificate was not attributable to the assessee as no objections were raised by the local authority. The Tribunal after considering its earlier decisions in the case of M/s. Satish Bohra & Associates Vs. ACIT in ITA No. 713 and 714/PN/2010 for A.Y. 2004-05 and 2005-06 dated 7-1-2011; M/s. D.K. Constructions Vs. ITO ITA No. 243/PN/2010 for A.Y. 2006-07; dated 6-12-2010 and Sanghvi and Doshi Enterprises Vs. ITO and others ITA No. 259 to 263/MDS/2010 dated 19-5-2011 for A.Y. 2005-06 and 2006-07 (TM) has concluded as follows: "From the above, once this is clear that the date that appears on the Architect's Completion certificate filed before the local aut....
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....that 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', following the parity of the reasoning lid down in the case of Hindustan Samutha Awas Ltd. (supra). 14. Sub-clause (i) of clause (a) to section 80-IB(10) of the Act requires that the undertaking, developing and building a housing project "completes such construction" or before 31-3-2008. In the present case, assessee has factually asserted right from the stage of assessment proceedings, that the construction of building 'E' was complete in all respects as per sanctioned plan and all the flats were handed over to the actual users/customers prior to 31-3-2008. In the background of the aforesaid factual position which has remained uncontroverted, in our view, on a plain reading of sub-clause (i) of clause (a) to section 80-IB(10) the condition prescribed therein is fulfilled., inasmuch as the construction of building 'E' was complete before 31-3-2008. However, on the reading of clause (ii) of the Explanation below sec. 80-IB(10)(a) of the Act, it emerges that the completion of construction of a housing proj....
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....icer on page 12 of the assessment order. The Assessing Officer however, did not accept the plea of the assessee, which has thereafter been accepted by the CIT(A). As per the CIT(A) there was no evidence putforth by the Assessing Officer to demonstrate that the two adjacent flats have been combined by the assessee before handing over possession to the customers. As regard common lobby in front of the two adjacent flats which had single entrance, the CIT(A) has accepted the contention of the assessee that the said common area was not sold to any person and that it was only a facility provided from the security point of view. Accordingly, as per the CIT(A), the built up area of the flats have to be seen independently and not after combining the two flats for the purposes of clause (i) to section 80-IB(10) of the Act. 16. The learned DR has contested the aforesaid action of the CIT (A) by reiterating the stand of the Assessing Officer as manifested in the assessment order. As per the Revenue, the adjacent flats which have been combined into one have a common lobby at the entrance and therefore, two flats have to be treated as a single unit for the purpose of computing the....
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....ed as a single unit. In the absence of any assertion of the Revenue that each flat in the housing project undertaken by the assessee could not have been used as an independent or self contained residential unit not exceeding 1500 sq.ft. of built up area and that it would be a complete unit only if two or more flats are combined together, the same would not lead to an inference that the assessee has not fulfilled condition prescribed in clause (c) of section 80-IB(10) of the Act. The assessee had relied upon the following decisions in support of his proposition with which we are in complete agreement:- (i) Haware Constructions (P) Ltd. Vs. ITO (2011) 64 DTR (Mumbai) (Trib) 251. (ii) Emgeen Holdings P. Ltd. Vs. DCIT ITA No. 3594 and 3595/MUM/2009 for A.Y. 2003-04 and 2004-05 dated29-7-2011; (iii) DCIT Vs. Arcade Bhoomi Enterprises - ITA No. 366/MUM/2010 for A.Y. 2006-07 dated 12-8-2011. 19. In the aforesaid precedents, it has been held by the Tribunal that if there is no evidence that the builder has combined the flats and the adjoining flats are combined by the customers, there was no reason to compute the built up area as requ....