TaxTMI 
TaxTMI 
2013 (2) TMI 800
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....the first ground of appeal the appellant wishes to prefer the second ground of appeal as follows On the facts and in the circumstances of the case and in law, the honourable CIT (Appeal)-II Pune erred in not allowing the proportionate deduction in respect of residential units/flats for which completion certificate was granted by Grampanchayat Keshavnagar, Mundhwa Pune. The appellant prays that the proportionate deduction under section 80IB(10) in respect of residential units/flats for which completion certificate is granted by the local authority -Grampanchayat Keshavnagar Mundhwa Pune before 31st March 2008 may please be allowed. 3. On the facts and in the circumstances of the case and in law, the honourable CIT (Appeal)-II Pune erred in confirming the allocation of common expenses (which are not directly referable/traceable to the particular project) of Rs. 4,02,958/- to the projects on the basis of sales/turnover of the projects. The appellant hereby prays that the allocation of common expenses as made by the appellant may please be accepted. 2. The assessee is the proprietor of Harikrupa Builders engaged in the business of real estate development and construction of resid....
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....l authority could not be produced because the area in question had been excluded from the PMC limits. It was contended on behalf of assessee that the Collector, Pune was not issuing the certificate during the relevant point of time. In this background, the Assessing Officer raised the following objections: a) When the project was started by the firm M/s. Harikrupa Shah & Associates and the first building plan approval dated 31.03.2001 was also obtained by it, how the appellant was eligible for claim of deduction u/s. 80IB(10). b) The project was not complete as per the revised building plan approval dated 25.01.2007 due to the reasons mentioned above. For the eligibility of claim u/s. 80IB(10), it should have been completed by 31.03.2008 as provided u/s. 80IB(10)(a) of the Act. c) Appellant could not produce the completion certificate from the local authority i.e. Collector Pune. 4. After considering the assessee's reply in this regard, the Assessing Officer rejected the claim u/s.80IB(10) on following grounds: a) Even though the Building Plans were revised subsequently additional building cannot be treated as separate project from the one....
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....the submissions made before the authorities below and requested to allow the claim in question. Main thrust of the Ld. Authorised Representative was that assessee's lay out plan was approved on 29.03.2001 and first building plan for 5 buildings, i.e., A, B, C, D and E was approved on 31.03.2001. The Ld. Authorised Representative submitted that Keshav Nagar Village was included in the jurisdiction of PMC in 1997. However, it was excluded from PMC vide notification dated 17.11.2001. The construction activity went on with regard to buildings as approved vide order dated 31.03.2001. Second plan was approved on 25.01.2007 by concerned Collector, Pune with regard to buildings F, G & H and 10 row houses as the said land was excluded from PMC limit by that time and same was completed on 28.02.2008. In this regard, the Ld. Authorised Representative drew our attention to page 76 of the Paper Book-II, inter alia, mentioned that at the time of second approval buildings A, B, C, D and E were mentioned as existing buildings. Ld. Authorised Representative also drew our attention to the FSI statement of Plot A-1 wherein buildings A, B, C, D & E have been mentioned as existing one while buildin....
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....ority. Explanation.--For the purposes of this clause,-- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or wit....
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....ne, for administrative purpose including building activities etc. g) The assessee got the building plan approved from the Collector Pune on 25.01.2007 on the recommendation of Assistant Director of Town Planning Pune Branch, Pune, dated 14.11.2006. The building plan approved by Collector, Pune, also mentioned originally approved five Buildings A, B, C, D & E and has been clearly mentioned in the approved plan as existing structure and new buildings namely F, G, & H and 10 row houses and a building in Amenity Area were approved. A copy of the building plan approved by Collector Pune is appearing on pages 76 to 79 of the paper book-II, wherein it has been clearly mentioned that buildings A, B, C, D & E are existing ones and buildings F, G & H and 10 row houses and building in amenity area are proposed constructions. h) The assessee had completed the project consisting of five buildings in F.Y. 2007-08 and obtained the certificate of completion from Keshavnagar Grampanchayat in respect 128 flats on 28.02.2008 in respect of all buildings namely - A, B, C, D, E, F, G & H and applied for completion certificate at the strength of the Architect Certificate appearing on pa....
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....e office of the Collector to any project approved before 31.12.2007. A copy of the reply issued by the Collector, Pune and its English translation is appearing on pages 26 & 27 of the Paper Book-I, inter alia, mentioned as under: "TRANSLATION OF LETTER FROM OFFICE OF COLLECTOR PUNE REGARDING COMPLETION CERTIFICATE ISSUED UPTO 31sT DECEMBER 2007 From Office of the Collector Pune Revenue Department Date: 14/01/2010 To Mr. Haribhau Lohkare 19, United Apartment Camp, East Street Pune 411 001 SUBJECT: INFORMATION UNDER RIGHT TO INFORMATION ACT IN RESPECT OF COMPLETION CERTIFICATE GRANTED WITHIN THE LIMITS VILLAGE MUNDHWA, KESHAVNAGAR, TAL PUNE IN RESPECT OF BUILDING PLANS APPROVED BEFORE 31^st DECEMBER 2007 Reference: Your application dated 31st December 2009 This has reference to the above mentioned application. It is to inform to you that no completion certificate has been granted by this Office (the Office of Collector, Pune) in respect of any construction done within the limits of Village Mundhwa, Keshavnagar Grampanchyat approved before 31st December 2007. Kindly take note of the information. In case you have any complaint in respect of this information you may contact the....
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.... and KZK Developers vs. CIT 130 TTJ 157 (Cuttack). In view of this, we find that the Assessing Officer was not justified in observing that the assessee is not eligible for deduction since commencement certificate and completion certificate are not in the name of the assessee. 13. The next objection of the Assessing Officer is that the project is not complete on 31.03.2008. The Assessing Officer observed that on visit to the project site during assessment proceedings in December, 2008, the construction of buildings B-1 to B-10 and amenity building and shop was not started which proved that the project is not complete. In this regard, we find that the Assessing Officer has not been able to appreciate the fact that building plan approved by the PMC on 31.03.2001 consisting of five buildings as stated above and subsequent building plan approved by the concerned Collector on 25.01.2007 consisting of 3 buildings & row houses alongwith amenity space was basically other than first five buildings, whose approval was taken on 31.03.2001. It is more clear from the fact that said approval dated 25.01.2007 acknowledges the existence of five buildings. It makes it clear that approval dated 25....
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.... in ITA.No.1250/PN/2009 and 707/PN/2010 held observed that there is a difference between the layout plan and building plan. It was held that approval of housing project and approval of building plan are two different concepts. Thus it was held that whatever portion of the housing project is otherwise found to be eligible, has to be considered as a housing project for the purposes of deduction u/s.80IB(10). The next objection of the Assessing Officer is that the assessee could not produce the completion certificate from the local authority i.e., Collector, Pune, the competent authority who has sanctioned the revised lay out and building plan of the project. According to the Assessing Officer, Keshavnagar Grampanchayat Mundhwa was not local authority competent to issue completion certificate. It is undisputed that the assessee has obtained completion certificate in respect of 80 flats included in buildings A, B, C, D & E and 48 flats included in buildings F, G & H from Grampanchayat Keshavnagar, Mundhwa, as mentioned above vide order dated 28.02.2008. The Assessing Officer did not appreciate the fact that there was no procedure for issuing completion certificate by Collector, Pune, i....
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....ssessee should not suffer for any administrative change with regard to applicability of building bye laws in particular area. The problem arose with regard to completion certificate by PMC by virtue of the fact that area of the land in question was excluded from PMC limits at relevant point of time as discussed above. In such peculiar conditions, the benefit bestowed on assessee should not be denied for no fault of the assessee. Such liberal interpretation should be used in favour of assessee when he is incapacitated in complying certain provisions for the reasons beyond his control. In case before us, problem arose due to the change of jurisdiction with regard to confusion of applicability of building bye laws because of change of jurisdiction by virtue of exclusion of land in question from PMC limits. The assessee should not suffer for the same. Under such circumstances, liberal interpretation should be used in favour of the assessee. It is settled legal position that law always gives remedy and law does wrong to no one. We are aware that provisions of section 80IB(10) suggest about only completion of construction and no adjective should be used alongwith word 'completion'....