TaxTMI 
TaxTMI 
2018 (3) TMI 1201
X X X X Extracts X X X X
X X X X Extracts X X X X
....ee on 28-09-2012. The assessee firm developed a housing project „Harsh Paradise‟ with 185 flats. On the said housing project, the assessee claimed deduction u/s. 80IB(10) of the Act. The Assessing Officer disallowed assessee‟s claim of deduction on the ground that the project is not complete before due date. The Assessing Officer further held that Flat Nos. 702 and 703 in Building H3 and Flat Nos. 302 and 303 in Building H4 are internally joined. Thus, the built up area of abovesaid units exceed 1500 sq. ft. Therefore, deduction u/s. 80IB(10) is not allowable to the assessee. Aggrieved by the assessment order dated 31-03-2014, the assessee filed appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) following the order of Tribunal in assessee‟s own case for assessment year 2008-09 allowed the appeal of assessee and held the assessee to be eligible for claiming deduction u/s. 80IB(10) on the housing project under dispute. Now, the Revenue is in appeal before the Tribunal assailing the order of Commissioner of Income Tax (Appeals). 3. The Revenue has raised following grounds assailing the order of Commissioner of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....similar disallowance of deduction claimed u/s. 80IB(10) was made by Assessing Officer. The matter travelled up to the Tribunal in assessment year 2009-10 in the appeal by assessee in ITA No. 1845/PN/2012 decided on 30-10-2013. The Tribunal following its earlier order allowed the appeal of assessee. In assessment year 2010-11, the Commissioner of Income Tax (Appeals) granted relief to the assessee by following the order of Tribunal. The Department filed appeal before the Tribunal in ITA No. 2030/PN/2013. The Tribunal vide order dated 27-10-2014 dismissed the grounds raised by Department against allowing assessee‟s claim of deduction u/s. 80IB(10) of the Act. 4.1 In respect of ground Nos. 3 and 4 of the appeal by Department, the ld. AR submitted that Flat Nos. 702 to 704 in Building H3 and Flat Nos. 302 and 303 in Building H1 have been internally joined by the purchasers subsequent to the purchase of flats. The assessee had constructed all the flats as an independent unit. Completion certificate in respect of said flats from Pune Municipal Corporation (PMC) was received for independent residential units. A copy of the completion certificate is at page 64 of the paper book. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... claim of deduction u/s. 80IB(10) of the Act, despite the fact the project was not complete before due date. We find that for similar reasons the assessee‟s claim of deduction u/s. 80IB(10) was disallowed by Assessing Officer in earlier assessment years. The matter for the first time travelled up to the Tribunal in assessment year 2008-09. The Co-ordinate Bench of Tribunal in ITA No. 1624/PN/2011 (supra) after considering the entire facts of the case accepted the appeal of assessee by observing as under : "14. After going through the rival submissions and material on record, we find that in the instant case assessee has obtained permission for construction of four buildings H-1, H-2, H-3, H-4 and G building. The said G building was to be given to the PMC to be allotted to the weaker section of the society. The housing project was approved by the local authority on 28.05.2003 wherein plan for construction of whole project including H-1, H-2, H-3 & G building, and first floor of H-4 building was sanctioned. The assessee was planning to purchase further TDR for construction of remaining floors of H-4 building. As the project was sanctioned before 01.04.2004, the due dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2.12 sq.mtrs. as detailed above. So irrespective of non-construction of building H-4, assessee is entitled for its claim of deduction u/s.80IB(10) with regard to these buildings H-1, H-2, H-3 & G, because, these are on standalone basis, fulfilled the conditions with regard to claim of deduction u/s.80IB(10). 15. We find that ITAT Pune Bench in the case of Rahul Construction Co. (supra) has held that the Assessing Officer has to verify as to when the building plan of these buildings were firstly approved by the local authority and taking the said date of approval as starting point, he has to verify as to whether these buildings were completed within prescribed time limit, i.e., 31.03.2008 on the basis of completion certificate in respect of such housing project issued by the PMC. In case before us, Revenue authorities have not disputed the fact that assessee has completed the construction in respect of buildings H-1, H-2, H-3 and G as discussed above. There is also no dispute of area of the plot as laid down in provisions of section 80IB(10) of the Act, on which project took place. Only dispute is that building H-4 was not completed at relevant point of time so claim of ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hul Construction Co. (supra), Satish Bohra & Associates (supra). Accordingly we hold that assessee is entitled to the claim of deduction u/s.80IB(10) in respect of all buildings except building H-4. The Assessing Officer is directed accordingly." 7. Thereafter, in subsequent assessment years i.e. assessment years 2009-10 and 2010-11 the Assessing Officer for a similar reasons has held the assessee ineligible for claiming deduction u/s. 80IB(10) of the Act. The Tribunal reiterated its view and held the assessee eligible for claiming benefit of deduction u/s. 80IB(10) in respect of building (except building H4) of residential project „Harsh Paradise‟. The DR has not been able to controvert the findings of Tribunal in earlier assessment years. Accordingly, ground Nos. 1 and 2 raised in appeal by Revenue are dismissed and the findings of Commissioner of Income Tax (Appeals) in holding assessee eligible for deduction u/s. 80IB(10) are upheld. 8. In ground Nos. 3 and 4 the Revenue has assailed the order of Commissioner of Income Tax (Appeals) in allowing benefit of deduction u/s. 80IB(10) in respect of Flat Nos. 702 to 704 in Building H3 and Flat Nos. 302 and 303 in Bui....