TaxTMI 
TaxTMI 
2017 (5) TMI 294
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....e learned Commissioner of Income Tax (Appeals)-II, Pune is bad in law. 3. The only issue raised in the present appeal is against the addition of Rs. 88,02,525/-. 4. Briefly, in the facts of the case, the assessee was an AOP consisting of two members i.e. Aaijee Group and Sukanto Roy Construction. The assessee had developed a project at Dhanori and had claimed deduction u/s. 80IB(10) of the Act on the profits of the eligible project. For the year under consideration, the assessee had declared total income of Rs. 1,24,96,520/- after claiming deduction u/s. 80IB(10) of the Act at Rs. 88,02,525/-. The Assessing Officer during the course of assessment proceedings noted that the layout plan was first sanctioned by the Pune Municipal Corporation (PMC) on 02.08.2003. The first year of claim u/s. 80IB(10) of the Act was assessment year 2007-08. Originally, the project was sanctioned for 7 buildings A to G for total units of 160. Subsequently, the plan was revised on 10.07.2006 and as per the revised plan there were 6 buildings A to F. The F building was sanctioned with 8 residential units. Subsequently, there was another revision on 09.05.2008 and 20 additional residential units were san....
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.....2008. Hence, the assessee claimed that it was eligible for claiming the deduction u/s. 80IB(10) of the Act in respect of phase 1 project. However, the Assessing Officer did not accept the submissions of the assessee and observed that the due date for completion of project was 31.03.2008. But the project had undergone revision on 09.05.2008 under which the additional units were sanctioned, Assessing Officer, thus, held that in view of revision, the project was not completed. He also noted that the construction of the building G had not started till date. Therefore, the project which the assessee claimed as an eligible project, fails to comply with the mandatory provisions of section 80IB(10) of the Act. The Assessing Officer, thus, denied the deduction claimed u/s. 80IB(10) of the Act at Rs. 88,02,525/-. 5. Before the Commissioner of Income Tax (Appeals), the assessee referred to sanctioned plan and completion certificate issued by PMC on different dates i.e. 05.05.2006 for the completion of wing A and B comprising of 56 units, completion certificate dated 18.10.2006 for Wing C and D comprising of 56 units and certificate dated 31.03.2008 for Wing E and F comprising of 36 units, t....
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....itional 20 flats in the already existing building F wherein 8 flats were constructed earlier and were completed before 31.03.2008 cannot by any stretch of imagination be held to be a separate project. He further noted that the assessee did not increase the land by way of additional purchases rather it will the change in the FSI of the already existing project which got increased from 8839.69 sq. mtrs. to 11811.19 sq. mtrs., which prima facie indicates the project to be one housing project and not two separate projects as contended by the assessee. Even the last completion certificate was not titled as final completion certificate and thus, the Commissioner of Income Tax (Appeals) was of the view that the housing project comprises of two independent projects of phase 1 and phase 2 is not tenable on the basis of material on record. Since, the construction of the additional 60 flats was not completed within the stipulated time period of 31.03.2008 and even the construction of building G had not started till the passing of the order by the Assessing Officer, though, the assessee had not claimed any deduction u/s. 80IB(10) of the Act for the 60 flats but, the additional flats were very ....
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.... available with the assessee is 13870 sq. mtrs., on which buildable area is 8839.69 sq. mtrs. As per the sanctioned plans the total covered area of 148 flats is 8827.46 sq. mtrs. In other words, for the construction of 148 flats the total available area was consumed as per sanctioned plans. The assessee further pointed out that it constructed the 148 flats in buildings A to G and consumed the available buildable area. The assessee received the completion certificate dated 05.05.2006 for the construction of 56 flats in buildings A and B, dated 18.10.2006 for 56 flats in buildings C and D and finally on 31.03.2008 for 36 flats in buildings E and F. The copies of the completion certificates are placed at pages 91 to 95 of the paper book. The assessee for a building which was sanctioned on 11.11.2003, in order to avail the deduction u/s. 80IB(10) of the Act has to complete the project by 31.03.2008. The project was for construction of 148 flats and the assessee has completed the construction of 148 flats within the stipulated time provided under the Act i.e. by 31.03.2008 and has even received the completion certificate for the said flats by 31.03.2008. In other words, the plan to cons....
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....t and the same is not to be considered while determining the eligibility of claim of deduction u/s. 80IB(10) of the Act in respect of the first project. 11. On consideration of the totality of the facts and circumstances wherein when the assessee initially started the project on the same plot area of 13800 sq. mtrs., it had utilized the complete FSI available and had sought sanction of construction of 148 flats which was allowed to the assessee by way of the first plan sanctioned on 11.11.2003 and the second plan was sanctioned on 10.07.2006. As per the second plan the total flats to be constructed by the assessee were 148 flats in buildings A to F on total area of 8827.46 sq. mtrs. As against the built up area of 8839.69 sq. mtrs. the assessee utilized the total available area and once the area was consumed, the project which was initially envisaged by the assessee was constructed and completed by 31.03.2008. The assessee even received the completion certificate for all the buildings by 31.03.2008. Accordingly, we hold that the project for construction of 148 flats is an independent project which was sanctioned as per revised plan dated 10.07.2006 and as per the provisions of sec....