TaxTMI 
TaxTMI 
2012 (9) TMI 1100
X X X X Extracts X X X X
X X X X Extracts X X X X
....half of the Revenue is that opportunity was not granted to the Assessing Officer to go through the additional evidence filed before the ld. CIT(A), therefore, it is violation of the Rules. On the other hand, learned counsel for the assessee defended the conclusion drawn in the impugned order, by inviting our attention to pages 37 & 38 of the paper book, evidencing that if common area of staircase is excluded from the total built up area, such area remains to the extent of 1386.03 sq. ft. only. 2.2. We have considered the rival submissions and perused the material available on record. The facts in brief are that the assessee claimed deduction u/s 80-IB(10) amounting to Rs. 1,86,02,270/- on the total sum of Rs. 7,88,82,014/-. The assessee filed profit and loss a/c, balance-sheet and audit report in form no. 10-CCB for claiming such deduction for Krishna Lok project. The assessee was also asked to furnish such information as contained in pages 1 & 2 of the assessment order. The assessee vide reply dated 10-12-2008 furnished the submissions and the documents filed by the assessee were examined. We further find that in the impugned order, there is no mention of the fact that such addit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....et, kitchen, drawing room, balcony, power room and store etc. We find that if the total area as per approved plan is examined, it comes to 1386.03 sq. ft. (as per sanction plan), and the total saleable area/ super area is 1492.43 sq. ft., which in all fairness is below the prescribed limit of 1500 sq. ft. So far as the common area or stair case is concerned, it cannot be included in the built up area of an individual unit as the same is to be used by all the residents/ inhabitants. If the definition of "built up area" as mentioned in sub-clause (a) of sub-section (14) of Section 80-IB, is analyzed, it speaks about the inner measurement of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common area shared with other residential units. The stair case definitely comes under the common pool used by all the inhabitants, therefore, it cannot be included in the built up area. Even otherwise the Assessing Officer noted from the details submitted by the assessee that three types of flats were sold by the assessee and in the type "A" category the area is 1386.03 sq. ft., whereas in type "B" ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es, which include advertisement and publicity; sales promotion & booking; and selling expenses have been bifurcated, whereas in Schedule "L", financial expenses like bank interest and collection charges, interest and others have been mentioned, Therefore, the contention of the Revenue that these expenses were not bifurcated is without any basis. Even from the assessment order (page 6), there is a categorical finding that the assessee company has not taken any loan secured or unsecured for Krishna Lok and the ledger print out of the current account maintained with Oriental Bank of Commerce and Punjab National Bank were furnished during assessment proceedings which clearly indicates that the total receipt from Krishna Lok project sale is utilized for the purpose of meeting expenses of Krishna Lok and none of the loans from Head Office were transferred to Krishna Lok. There is a further finding that there is no question of transfer any financial expenses to Krishna Lok and further the administrative and other expenses which include salary, bonus other perquisites, employees welfare and the rates and taxes, general expenses, newspaper and periodicals, legal and professional expenses, p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....yond the control and power of the assessee. Our attention was also invited to page 22 of the paper book containing a certificate signed by the Architect of the assessee i.e. Candid Design Consortium Pvt. Ltd., in which the total area of the Type-A flat has been mentioned at 1492.43 sq. ft. Ld. counsel submitted that for A.Y. 2006-07 deduction was allowed to the assessee and it is the same sanction plan which could not be denied for the next year. It was empathetically argued that the total built up area is below the prescribed limit of 1500 sq. ft. and there is no violation of the Act. It was also pleaded that the project was approved on 16-3-2005 which is well before 1-4-2005 and the assessee was to complete the project on or before 31-3-2009. The ld. counsel also relied on the decisions of Visakhapatnam & Delhi Benches of the ITAT as also the decision of Hon'ble Gujarat High Court, which we will discuss while coming to a particular conclusion. The crux of the argument is that requirement of completion certificate was merely directory and not mandatory. Reliance was placed upon the decision dated 29-2-2012 of Hon'ble Karnataka High Court (ITA no. 138 of 2010) to the effect that it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be adjudicated by us pertains to sec. 80- IB(10). We further find that as contained in para 1.2 (page 5) of the impugned order, the ld. CIT(A) has examined the submissions of the assessee and the reason of denial of deduction to the assessee by the ld. Assessing Officer. The relevant portion from the impugned order is reproduced hereunder: "It was further submitted that Addl. CIT wrongly tries to prove that sale with M/s. Rajasthan Global Securities Ltd. (RGSL) are not accounted for properly and undue profit has arisen on account of 80-IB whereas these are normal business transactions undertaken by assessee company with M/s Rajasthan Global Securities Ltd. having no mutual relation whatsoever. The Assessing Officer has objected to the issue of preferential shares and its valuation. The assessee company has issued preferential shares to various persons as per SEBI guidelines and approval of Bombay Stock Exchange. The assessee company is a listed company and does not ah any discretion about the issue price and require to issue shares through preferential allotment only at the rate as per SEBI guidelines and approved by stock exchange. During the year the assessee company has calcula....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wise of all the units. Still the deduction was denied on the presumption that the basis of arriving at such figure was not adduced by the assessee. We are not in agreement with the finding of the Assessing Officer on two counts- firstly, the approval was granted by the Competent Authority; and secondly such bifurcation is as per sanctioned plan which was filed before the Assessing Officer. Uncontrovertedly such bifurcation was filed during assessment stage, first appellate stage and even before us. It is also not in dispute that the approval was granted by the Competent Authority to the assessee on 16-3-2005 meaning thereby the project was approved before the amendment inserted/ substituted by Finance (No.2) Act of 2004, w.e.f. 1-4-2005. Prior to its substitution, sub-section (10), as amended by the Finance Act, 2000, w.e.f. 1-4-2001 and Finance Act 2003 with retrospective effect from 1-4-2002, read as under: "(10) the amount of profits in case of an undertaking developing and building housing projects approved before the 31st day of March, 2005 by a local authority, shall be hundred per cent of the profits derived in any previous year relevant to any assessment year from such hou....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... construction work which is already in progress and again comply with the direction of the law which was inserted on a later date which is prospective in nature. If the intention of the legislature would have been to make it effective from retrospective effect, nothing prevents the legislature to do so. 8.10. If the issue is analyzed in the light of case laws cited before us, we find that the Hon'ble Karnataka High Court vide judgment dated 29th February 2012 in the case of CIT & another Vs. M/s Anriya Project Management Services Pvt. Ltd. (ITA no. 138 of 2010), considered the decision like CIT & ors. Vs. G.R. Developers (ITA no. 355/2009) and held that definition of built up area was inserted by Finance (No.2) Act of 2004, which came into effect from 1-4-2005, is prospective in nature and has no application to the housing projects which were approved by local authority prior to that date, strongly supports the case of the assessee. It was held by the Hon'ble High Court that the assessee was entitled to hundred per cent benefit of sec. 80-IB(10). 8.11. Another case cited was from Visakhapatname Bench of the ITAT in the case of M/s Vishnu Builders Vs. ACIT (ITA nos. 178, 179 & 180....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... proceedings, yet for the sake of consistency and for the purposes of finality in all litigations, including litigation arising out of fiscal statutes, earlier decisions on the same question should not be reopened unless some fresh facts are brought on record in subsequent assessment year. For A.Y. 2006-07, even the ld. CIT(A) decided the issue in favour of the assessee, which was confirmed by the Tribunal (supra), therefore, unless and until any new material facts are brought on record, the revenue is not permitted to take a "U turn", while denying the claimed deduction to the assessee, that too on same facts and circumstances. Our view is fortified by the decision of Hon'ble Jurisdictional High Court in the case of CIT v. A.R.J. Security Printers 264 ITR 276 (Del.); and the ratio laid down in CIT Vs. Neo Poly Pack (P) Ltd. 245 ITR 492 (Del.); Berger Paints India Ltd. Vs. CIT 266 ITR 99 (SC); CIT Vs. Lagan Kala Upvan 259 ITR 489 (Del.); and Union of India & others Vs. Kaumudini Narayan Dalal & another 249 ITR 219 (SC). From this angle also, the assessee is having a strong case in its favour. 8.16. Leave apart, we are of the considered opinion that the assessee is expected to comp....