AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2011 (6) TMI 800
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.... over on the dates mentioned against the respective names. It was also claimed that registered sale deeds were executed in favour of such customers. It was specifically claimed that when the map of such dwelling units was sanctioned in 2004, therefore, the law applicable on that date will be applicable when the plan was sanctioned/approved by the Competent Authorities. Reliance was placed upon the decisions in 39 SOT 498 (Mum), Essar Construction P. Ltd. vs. ACIT (17 ITJ 138) (Indore) and D.K. Construction vs. ITO, 17 ITJ 1 (Indore) and also the decision of the Tribunal in the case of the assessee for assessment year 2004-05 vide ITA No.242 & 243/Ind/2008. 3. On the other hand, the ld. CIT DR strongly defended the impugned order by contending that completion certificate was not granted to the assessee till date and the area is very much prescribed in the section itself, therefore, no deviation is required to be made from the provisions of the Act. It was emphatically submitted that in the year 2005, built up area was defined, therefore, balconies and mumties are very much part of the bungalows/constructed area. From 1.4.2005, the definition of built up area was argued to be change....
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..... 3. Intention behind any deduction u/s 80IB is to promote investment in a particular section, which is less profitable. In assessee's case virtually no investment was made to start the project and return on capital or profitability is very substantial. 4. Project is not approved as a whole by the Municipal Corporation individual building permission has been given. 5. The assessee has constructed the duplexes, which exceeds the maximum limit of 1500 sqft specified in section 80IB(10) which in fact is one of the main basic condition to be fulfilled in order to claim the exemption. The assessee has failed to fulfill this main basic condition. 6. For being eligible for deduction u/s 80IB(10), it is essential that the approved project is completed as laid down u/s 80IB(10). The section 80IB(10) prescribed that the date of completion is to be taken as the date on which completion certificate was issued by the Local Authority. No such certificate has been issued by the Local Authority." In the light of the above objections, we are reproducing hereunder the relevant provisions of the Act: 80-IB. (1) Where the gross total income of an assessee includes any profits and gains derived f....
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....ntial unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; 6b[and] (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed five per cent of the aggregate built-up area of the housing project or two thousand square feet, whichever is less.] The following clauses (e) and (f) shall be inserted after clause (d) of sub-section (10) of section 80-IB by the Finance (No. 2) Act, 2009, w.e.f. 1-4-2010 : (e) not more than one residential unit in the housing project is allotted to any person not being an individual; and (f) in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely:- (i) the individual or the spouse or the minor children of such individual, (ii) the Hindu undivided family in which such individual is the karta, (iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided ....
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....ing; (ii) in the case of a company carrying on scientific and industrial research and development, means the assessment year relevant to the previous year in which the company is approved by the prescribed authority for the purposes of sub-section (8); (iii)in the case of an undertaking engaged in the business of commercial production or refining of mineral oil referred to in subsection (9), means the assessment year relevant to the previous year in which the undertaking commences the commercial production or refining of mineral oil; 19[(iv) in the case of an undertaking engaged 20[in the business of processing, preservation and packaging of fruits or vegetables or] in the integrated business of handling, storage and transportation of foodgrains, means the assessment year relevant to the previous year in which the undertaking begins such business;] 21[(v) in the case of a multiplex theatre, means the assessment year relevant to the previous year in which a cinema hall, being a part of the said multiplex theatre, starts operating on a commercial basis; (vi) in the case of a convention centre, means the assessment year relevant to the previous year in which the convention centre sta....
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....to sub-sec. (10), the date of the construction of the housing project shall "be taken to the date on which, the completion certificate, in respect of the housing project, is issued by the local authority. Whereas in the present appeal, as per the Revenue, till date no such certificate was issued to the assessee, therefore, from this angle also, the assessee has not fulfilled the stipulated condition. The basic idea as per sub-clause (iii) to sub-sec. 10(a) is to complete the housing projects within five years from the end of the F.Y. in which the housing project is approved by the local authority. The approval was granted by the local authority to the assessee on 6.8.2002 and till date, no completion certificate was issued by the local authority, meaning thereby, the housing project was not completed within the prescribed period, therefore, the assessee is not entitled to claim the deduction. 7. During hearing, the ld. Counsel for the assessee relied upon the decision in the case of M/s. D.K. Construction vs. ITO [2011] 17 ITJ 1 (Tribunal) wherein the completion certificate was obtained on 15.12.2008 and application was made for the certificate prior to 31.3.2008 and there was a r....