TaxTMI 
TaxTMI 
2015 (9) TMI 842
X X X X Extracts X X X X
X X X X Extracts X X X X
.... appeal of the Assessee. Aggrieved by the aforesaid order of ld. CIT(A), Assessee is now in appeal before us and the grounds raised by the Assessee which have been subsequently concised, reads as under:- 1. In law and on the facts and in the circumstances of the case, the order passed by the Commissioner of Income-tax (Appeals)-XV [hereinafter referred to as "CIT(A)"], is bad in law and deserves to be cancelled, as she has passed an order without considering and appreciating the facts of case of appellant. 2.1 In law and in the facts and circumstances of the appellant's case, the learned CIT(A) has grossly erred in upholding the disallowance for deduction u/s. 80IB(10) of the Income tax Act, 1961 (hereinafter referred as "the Act") amounting to Rs. 62,83,272/-, when she ought to have allowed the claim of the appellant. 2.2. In law and in the facts and circumstances of the appellant's case, the learned CIT(A) has grossly erred in holding that the appellant has not fulfilled conditions u/s. 80IB (10) (b) & (c) of the Act, without considering the submission by the appellant and certain important observations in the DVO's report, as highlighted by the appellant. 2.3 In law and in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Assessee, the Assessee's claim of deduction under 80IB(10) of Rs. 62,83,272/- was disallowed by the A.O. Aggrieved by the order of A.O., Assessee carried the matter before ld. CIT(A) who upheld the order of A.O by holding as under:- 12. After going through rival submissions it is seen that the appellant entered into 3 Development Agreements on three different dates for three plots of land each below 1 acre: Sr. No. Date of agreement Plot Area 1 08.10.2004 1463 sq. mtr. 2 14.12.2005 1608.21 sq. mtr. 3 20.03.2006 1544 sq. mtr. AMC gave permissions on different dates for construction of different blocks. Building Use permission was also given on different dates as obvious from the table below given in the assessment order: Sr. No. Date of permission/Revised Date of B.U permission Block Unit 1 17.12.2004/21.02.2006 30.06.2006 A 40 2 19.10.2005 20.12.2006 B 30 3 21.02.2006 18.07.2007 C 40 4 30.03.2007 29.11.2007 B-2 15 The above tables show that to claim deduction u/s 80IB (10) the appellant treated different blocks of apartments on different pieces of land as one project, though each piece of land was below I acre to begin with.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... sq. mtrs, which is equivalent to 1.166 acres in its first approval dated 19.10.2005. He pointed to lay out plan of the project placed at page 2/2 of the paper book and from it, he pointed that the AMC not only recognized the plot area to be 4717 sq. mtrs. but also recognized that the project consist of more than one blocks namely Block-A, B & C. He further submitted that Assessee had entered into 3 development agreements and obtained permission from AMC to begin construction on different dates for different blocks of the project since it was required to make the payment of substantial amount of charges to local authorities for getting permission for construction and in order to avoid financial squeeze, Assessee had carried out the construction of the project in a phased manner. He therefore submitted that the project remained as a one whole project only. With respect to ld. CIT's observation that in Block-C on the 5th Floor, Assessee had constructed only 2 flats, the area of which exceeded 1500 sq. ft, he submitted that ld. CIT(A) had relied upon DVO's report which is dated 17.11.2009. He submitted that the date of inspection by DVO was 24.08.2009 whereas the date of last B.U perm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ect" in Section 80IB(10) would have to be construed as commonly understood "Housing Project" in common parlance and it would mean constructing a building or group of buildings consisting of several residential units. It further, at para 26 has noted as under:- 26......................... However, in the absence of defining the expression 'housing project' and in the absence of specifying the size or the number of housing projects required to be constructed on a plot of land having minimum area of one acre, even one housing project containing multiple residential units of a size not exceeding 1000 square feet constructed on a plot of land having minimum area of one acre would be eligible for Section 80IB (10) deduction. If the construction of Section 80IB (10) put forth by the Revenue is accepted, it would mean that if on a vacant plot of land, one housing project fulfilling all conditions is undertaken, then deduction would be available to that housing project and if thereafter several other housing projects are undertaken on the very same plot of land, the deduction would not be available to those housing projects as the plot ceases to be a vacant plot after the construction of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....LOPMENT CONTROL RULES- THAT SEPARATE PLAN PERMITS OBTAINED FOR six BLOCKS-NOT GROUND FOR DENIAL OF DEDUCTION-ASSESSEE ENTITLED TO DEDUCTION -INCOME-TAX ACT, 1961, S. 80IB(10). 10. Thus, in light of the decision cited hereinabove, we are of the view that Assessee cannot be denied deduction u/s. 80IB(10) on the ground that the area of project is less than 1 acre and more so when Revenue has not disputed about the fulfillment of other conditions stipulated u/s. 80IB(10) by the Assessee. 11. As far as denial of deduction on the ground of flat size being in excess of 1500 sq. ft. is concerned, we find that the Assessee had sold 4 flats namely C-401, 402, 403 and 404 to 4 different purchasers vide separate sale deeds which have also been confirmed by the respective purchasers and at the time of its sale each flat was less than 1500 sq. ft. It is also a fact that the inspection was carried out by the DVO subsequent and much after the date when Assessee had handed over the possession to respective owners of the flat. The respective owners have also confirmed by carrying out the modification in those flats and combining those 4 flats into 2 flats. In such a situation the act of the purcha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yments by wrongly invoking the provisions of section 40(a)(ia). During the course of appellate proceedings it was conceded that there was late deduction of TDS. Vide reply dated 10.8.2009 Annexure 5 was enclosed by the appellant which in turn is enclosed as Annexure 3 of this order, which showed that all payments / credits totaling to Rs. 39,00,000 were made to one Shreenath Builders on different dates from 1.4.2005 to 28.2.2006, and as per statutory requirements TDS should have been deposited in government account by 31.3.2006 whereas it was deposited deposited on 31.5.2006. I have therefore no alternative but to confirm the addition made by the AO u/s.40(a)(ia) of Rs. 39,00,000. 16. Ground No.4 the AO erred in making disallowance of Rs. 5,48,483 on account of alleged non-deduction of tax at source u/s.40(a)(ia), The format enclosed by the appellant through its reply dated 10.8.2009 which is enclosed as Annexure 3 of this order shows no TDS was made on certain payments made to the sub-contractors, therefore the addition made by the AO is upheld. 14. Aggrieved by the aforesaid order of ld. CIT(A), Assessee is now in appeal before us. 15. Before us, ld. A.R. with respect to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(ia) of the Act is retrospective from the date of insertion of the provision ie., 1st April 2005 therefore needs to be answered in affirmation. It can be seen that the amendment made by the Finance Act 2010 allows additional time upto the due date of filing of the return in respect of even those instances where TDS has been deducted during the first eleven months of the previous year. The additional time till the due date of filing of the return, in case of TDS made during the last month of the previous year was already available by the amendment made by Finance Act 2008. Thus, it is apparent that the relaxation made by the amendment made under the Finance Act, 2010 brings the law in parity with the aforementioned situation and accordingly, for the TDS deducted all throughout the year, time is extended from payment till the filing of return. It is thus apparent that when the amendment introduced by the Finance Act, 2008 of relaxing the time for deposit of TDS was made retrospective from the year 2005 [1st April 2005], the amendment by Finance Act 2010 with regard to other limb of time limit for payment of TDS has to be held retrospective not from 1st April 2010 only. If we recall a....