TaxTMI 
TaxTMI 
2020 (4) TMI 653
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....uction u/s.80IB(10) of the Act of Rs. 9522022/-. The AO asked to justify the claim of deduction, the assessee has furnished a reply which has examined by the AO. The AO was of the opinion that the housing project in respect of which the assessee's claim of deduction u/s.80IB(10) of the Act was approved on 16-03-2009 that it was not approved before 31-03-2008, so the assessee was not eligible for deduction u/s.80IB(10) of the Act, amounting to Rs. 9522022/-. 4. Being aggrieved, the assessee carried the matter before the ld. CIT(A). the CIT(A) noted that the original plan was approved by SMC in the name of one Shri Kalpesh Kumar Kantilal giving permission dated 19-07-2006 which was for construction and development of Row Houses having 22 units to be constructed. This permission was valid upto 18-07-2007. However, after this the assessee applied for development permission on the same land for construction of residential flats (High Rise Buildings) on 26-11-2008 and received development approval from SMC, Surat on 16-03-2009 in the name of Shri Shailesh P. Gonawala. Therefore, the CIT(A) held that housing project was held on 16-03-2009 which was obviously after 31-03-2008. Theref....
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....ruction,- (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004 but not later than the 31st day of March, 2005], within four years from the end of the financial year in which the housing project is approved by the local authority. (iii) in a case wtiere a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority.] 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) ..... (b) ..... (c) ..... (d) ..... (e) ..... [ underline is ours ] 11.2. Thus,....
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.... and de hors the earlier project for construction of row-houses. 11.3. We thus notice that the objections of the Revenue for eligibility of deduction under s.80IB(10) are three fold: (i) The building plan for the housing project in question is completely alien to the earlier building plan and therefore cannot be seen in continuation of the previous building plan as claimed by assessee. Thus, the housing project seeking to claim deduction under s.80IB(10) of the Act is required to be tested on anvil of section 80IB(10) afresh. The fresh application for approval from the local authority for the new housing project for construction of high rise building has been made subsequent to the cut off date and the approval naturally has flowed subsequent to the cut off date. Thus, the primary condition for eligibility of claim under 80IB(10) is ostensibly unfulfilled. (ii) The housing project which is subject matter of deduction under s.801B(10) should be broadly be in conformity with the housing project approved prior to the cut off date to avail the relaxation under Explanation-1 to section 80IB(10). It is the case of the Revenue that a structural alteration in the....
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....subsequent to the cut off date. In the absence of any continuity or integrity between the initial approval and subsequent approval, as noted above, the date of first approval within cut off limit cannot be reckoned for the purposes of second approval. The basic condition of obtaining the approval from the local authority for housing project in specified time limit thus remains unfulfilled for the housing project in question. 11.6. The housing project in Explanation-l(i) is qualified and punctuated by implicit condition. The use of word 'the' preceding the; expression 'Housing project1 is suggestive and indicative of the fact that: the 'Housing project' should be broadly the same. Approval for a giver housing project at the first instance will not grant an indefeasible or vested right under Explanation-l(i) for a altogether new project. There should be some demonstrable and intense relationship between earlier approval obtained in respect of 'housing project' vis-a-vis subsequent approval. The law cannot be surpassed to grant relief. 12. We take note of the plea propounded on behalf of the assessee that second development permission is m....