2022 (9) TMI 1033

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....proceedings u/s.153A r.w.s.143(3) of the Income Tax Act, 1961, in short "the Act". Heard both the parties. Case files perused. 3. We first of all take up the Revenue's appeal ITA No.576/PUN/2020. Delay of 194 days in filing stands condoned since falling in Covid-19 pandemic outbreak period. 4. Next comes the Revenue's sole substantive grievance raising the issue of section 80IB(10) deduction. The Assessing Officer had disallowed the assessee's corresponding claim to the tune of Rs.10,73,04,401/- in his assessment order dated 30-01-2015. This 80IB(10) deduction claim pertains to the assessee's "Green Lands" residential project at Rahatani, Pune. Both the learned representatives at this stage take us to the CIT(A)'s detailed discussion allowing the assessee's claim as follows : "5. In Ground No.l, the Appellant has contested the disallowance of Rs.10,73,04,401/- claimed under section 80IB(10) of the Act. It is stated by the appellant that in the relevant assessment year the appellant completed a Housing Project viz. 'Green Lands' at Rhatani, Pune. The project consisted of 07 residential buildings bearing Nos. A to G and one commercial building. The project was sanctioned ....

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....herein the Hon'ble jurisdictional bench, vide order dated 19.03.2019, on similar set of facts, has held as below : "6. We heard both the sides on the limited issue of allowing deduction u/s.80IB(10) of the Act and perused the orders of AO and the CIT(A) and the decisions relied upon by the assessee. On going through the finding of CIT(A) on this issue, we find the CIT(A) has rightly allowed the deduction u/s.80IB(10) of the Act to the assessee after considering the following important aspects: 1. It is undisputed fact that the assessee completed construction of 108 flats and obtained completion certificate for the same. 2. As per the Valuation Officer's report, the assessee has complied with the conditions provided in section 80IB(10) and AO ignored the same and failed to comment on the eligibility of section 80IB(10) of the Act. 3. 4. AO failed to appreciate the judgment of jurisdictional High Court in the case of CIT Vs. Brahma Associates (supra) in the right perspective and chose to reproduce part of the judgment to his convenience to deny the claim of the assessee. It is a settled legal proposition that the claim of deduction is allowable on pro-rata basi....

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....ut that the assessee had violated the aforesaid provisions of clause (f) of section 80IB(10) of the Act, wherein flat Nos.A8-302 and 303 were allotted to Mrs.KhushbooKularia and Mr. Ashok Kularia (wife & husband) and A2-103 and 104 were allotted to Mrs. Snehlata Joshi and Mr. Vasant Hoshi (wife & husband). The Assessing Officer thus, denied entire claim of deduction under section 80IB(10) of the Act. The CIT(A) was of the view that two units allotted to spouses of individual being A8-302 and A2-103 had violated the conditions of section 80IB(10)(f) of the Act. He relied on the ratio laid down by the Hon'ble High Court of Madras in CIT Vs. Arun Excello Foundation Pvt. Ltd. reported in 86 DTR 99 (Mad) and Vishwas Promoters Pvt. Ltd. Vs. ACIT reported in 81 DTR 58 (Mad) and was of the view that the assessee was entitled to claim prorata deduction on the profits of balance project excluding two flats which were allotted to spouses of individuals. We are in conformity with the findings of CIT(A), where the violation of clause (f) of section 80IB(10) of the Act has been made by the assessee, then in respect of profits on flats allotted to spouses of individuals is to be excluded and ....

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....-G) completed on or before the above scheduled date 30- 03-2012 (supra). Mr. Khandelwal could not further rebut the clinching stipulation in the foregoing certificate dated 29-03-2012 that the assessee had to complete the drainage system of these four wings at its own cost. We are completely in dark as to when the assessee had incurred its own expenditure to complete the drainage works. 6. We had heard all these three cases on 23-06-2022 and sought for the necessary part completion certificate as well as the site plan. The same came to be filed on 13-09-2022. We kept the matter as part-heard thereafter for 15-09-2022. We have gone through the site plan with the able assistance of both the parties. It emerges that the assessee has only completed "C to F wings" which could hardly be termed as "habitable" in absence of compound walls, sewage treatment plant, drainage and parking etc. Mr. Khandelwal at this stage quoted (2012) 19 taxmann.com 316 (Bom.) CIT Vs. Vandana Properties, (2013) 29 taxmann.com 19 (Mad.) Vishwas Promoters (P) Ltd. Vs. ACIT, (2012) 76 taxmann.com 73 (Bom.) CIT Vs. Akash Nidhi Builders & Developers upheld in (2016) 76 taxmann.com 86 (SC) similar other coordinate ....