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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
आदेश / ORDER
PER SUSHMA CHOWLA, JM:
The appeal filed by the Revenue is against the order of CIT(A)-3, Pune, dated 24.11.2015 relating to assessment year 2012-13 against order passed under section 143(3) of the Income-tax Act, 1961 (in short ‘the Act’).
The Revenue has raised the following grounds of appeal:- 1) The learned Commissioner of Income-tax (Appeals) erred in allowing the deduction u/s.80IB(10) of the Act to the housing project 'Nano Homes' approved on 30.03.2007 and was still incomplete by 31.03.2012
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in violation of section 80IB(10)(a)(i) of the Act which requires such project to be completed before 31.03.2012. 2) The learned Commissioner of Income-tax (Appeals) erred in allowing the claim u/s.80IB(10) of the Act on partial completion of the housing project holding that that the assessee is entitled for claim of deduction u/s.80IB(10) in respect of completed buildings without appreciating the fact that the housing project was approved by the local authority on 30.03.2007 (First Approval) and completion certificate was admittedly not issued by Pune Municipal Corporation with respect to building B and C. 3) The learned Commissioner of Income-tax (Appeals) erred in not appreciating the fact that if the conditions set out in section 80IB(10) are satisfied, then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to a part of the project. The ITAT, Pune decision which was relied on in the case of Belvalkar Housing Schemes is being contested in the Hon'ble Bombay High Court and an SLP has already been filed in the case of M/s. Vandana Properties. 4) The learned Commissioner of Income-tax (Appeals) erred in not appreciating the fact that the building B and building C cannot be separated and moreover the assessee had proposed building B and C in the first plan approved by PMC on 30.03.2007 and, therefore building B and C was part & parcel of the housing project claimed u/s.80IB(10).
The learned Authorized Representative for the assessee at the outset pointed out that the issue raised in the present appeal is covered by the order of Tribunal in the case of M/s. Surana Mutha Developers Vs. ITO in ITA No.360/PN/2013, relating to assessment year 2009-10, order dated 10.04.2015.
Briefly, in the facts of the case, the assessee had developed housing project ‘Nano Homes’. Under the said project, the assessee was to develop 12 buildings. However, building No.B and C could not be developed and the assessee developed only 10 buildings. The assessee claimed the deduction under section 80IB(10) of the Act in respect of said 10 buildings. The Assessing Officer was of the view that where the assessee has not completed the construction of housing project i.e. all 12 buildings, the assessee is not entitled to claim the deduction under section 80IB(10) of the Act.
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The CIT(A) on the other hand, held the assessee entitled to claim prorata deduction under section 80IB(10) of the Act in respect of eligible units. The CIT(A) placed reliance on the ratio laid down by the Pune Bench of Tribunal in the case of Belvalkar Housing Schemes Vs. ITO in ITA No.524/PN/2013, relating to assessment year 2009-10, order dated 24.08.2015.
The Revenue is in appeal against the order of CIT(A).
We have heard the rival contentions and perused the record. The issue which is raised by the Revenue in the present appeal is against prorata 80IB(10) deduction allowed by the CIT(A). The assessee had developed housing project ‘Nano Homes’ which was approved on 30.03.2007. As per the approved plan, the assessee was to construct 12 buildings in the said project but could construct only 10 buildings upto 31.03.2012. The building Nos.B and C were not constructed by the assessee. The assessee thus, claimed deduction under section 80IB(10) of the Act in respect of completed buildings. The issue which is raised before us is whether the assessee is entitled to such prorata deduction under section 80IB(10) of the Act. We find that the Tribunal in series of decisions has decided the issue of prorata deduction in favour of assessee. We place reliance on the ratio laid down in M/s. Surana Mutha Developers Vs. ITO (supra), wherein as against proposed building Nos.A to D, the assessee could only construct building Nos.A to C. In the absence of building No.D within stipulated period, the authorities below denied the claim of deduction under section 80IB(10) of the Act. However, the Tribunal allowed prorata claim of deduction under section 80IB(10) of the Act, in turn, relying on
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the decision of the Hon’ble High Court of Madras. Relevant findings of Tribunal are as under:- “14. Now, coming to the alternate claim of the assessee vis-à-vis building Nos.A, B and C constructed and completed by the assessee against which, completion certificate has been received prior to 31.03.2011 i.e. the stipulated date within which the said project had to be completed. We find merit in the alternate plea raised by the assessee that where building Nos.A, B and C have been completed before the stipulated date, the assessee is entitled to the pro- rata deduction in respect of profits earned from building Nos.A, B and C. We find support from the ratio laid down by the Pune Bench of the Tribunal in the case of Pharande Developers Vs. The Income Tax Officer in ITA No. 715/PN/2009 and ITA No. 175/PN/2011 relating to assessment year 2005-06 order dated 25.06.2013 and in turn reliance was placed on the ratio laid down by the Pune Bench of the Tribunal in the case of D.S. Kulkarni Developers Ltd. Vs. ACIT in ITA Nos. 1428 & 1429/PN/2008, order dated 08.08.2012 and also the subsequent judgment of the Hon'ble Madras High Court in the case of Viswas Promoters (P) Ltd. (2013) 29 taxman.com 19 (Madras) and it was held as under:- “10. On this aspect, we have considered the plea of the assessee in the light of the precedents. A similar situation has been considered by this Bench in the case of D.S. Kulkarni Developers Ltd. (supra) wherein the following discussion is relevant :- “20. In this background, the alternative plea of the assessee springs up. The plea is that the deduction under Section 80- IB(10) be denied only with respect to the units which do not conform to the condition contained in Section 80-IB(10)(c) and for the balance eligible residential units, the deduction should be allowed. The Revenue has opposed the said plea on the ground that the assessee is not entitled to a proportionate deduction under Section 80-IB(10) of the Act. 21. On this aspect, we find that the Mumbai Bench of the Tribunal in the case of M/s Ekta Housing Pvt. Ltd., ITA No.3649/Mum/2009 dated 20.05.2011 has upheld the plea of the assessee for a proportionate deduction under Section 80-IB(10) of the Act where some of the residential units in the project violated the condition contained in Section 80-IB(10)(c) of the Act. The Mumbai Bench after noticing the precedents in the case of — i) ITO vs. Air Developers, 25 DTR 287 (Nag.); ii) DCIT vs. Brigade Enterprises Pvt. Ltd., 14 DTR 371 (Bang.); iii) ACIT vs. Sheth Developers P. Ltd., 33 SOT 277 (Mum.); iv) Bengal Ambuja Housing Development Ltd. vs. DCIT; v) SJR Builders vs. ACIT, 3 ITR 569 (Mum.) held that the assessee would not loose the exemption under Section 80-IB(10) in entirety where some of the residential units wings had a „built-up area‟ in excess of the limit prescribed in clause (c) of Section 80-IB(10) but, it would be entitled to proportionate deduction under Section 80-IB(10) of the Act with regard to the profits
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earned on the eligible units. Particularly, the Tribunal also considered the decision of the Hon‟ble Bombay High Court in the case of Brahma Associates (supra) and held that the same does not envisage denial of proportionate deduction in such circumstances. The relevant discussion, as contained in paragraphs 8 and 9 of the order of the Tribunal in the case of M/s Ekta Housing Pvt. Ltd. (supra) reads as under : - “viii) We now examine the applicability of the decision of the Hon‟ble Bombay High Court in Brahma Associates (supra) to the facts of this case. On a careful reading of this judgement, we find that nowhere it is stated that proportionate deduction should be allowed, in case certain residential units had built-up area in excess of prescribed limit of 1,000 sq.ft.. In fact, this issue was not before the Hon‟ble Jurisdictional High Court. The questions before the Hon‟ble Jurisdictional High Court were different and, hence the judgement cannot be said to be on this issue. The only issue before the High Court is when there is a commercial element in a residential project, will be assessee be denied the entire exemption. In this case, the Hon‟ble High Court has observed that when the local authority approved a plan as a housing project or a residential cum commercial project, the assessee would be entitled to claim for deduction under Section 80-IB(10) even if the project had commercial element in excess of 10%. At paras 27 and 28, the Court observed as follows :- “27. The question then to be considered is, whether the Special Bench of the Tribunal was justified in holding that the projects having commercial area upto 10% of the built-up area of the plot are eligible for deduction under Section 80-IB(10) on the entire project upto 01.04.2005. Once the basic argument of the revenue that the housing projects with commercial user are not entitled to Section 80-IB(10) deduction is rejected, then in the absence of any restriction imposed under the Act, it was not open to the Tribunal to hold that the projects approved by the local authorities having residential buildings with commercial user upto 10% of the plot area would alone be entitled to deduction under Section 80-IB(10). As noted earlier, restriction regarding commercial user has been imposed for the first time by introducing clause (d) to Section 80-IB(10) with effect from 01.04.2005. Therefore, it was not open to the Tribunal to hold that prior to 01.04.2005, projects having commercial user upto 10% of the plot area alone would be eligible for Section 80-IB(10) deduction. 28. In the present case, though the commercial user is more than 10% of the plot area, the Tribunal has allowed Section 80-IB(10) deduction in respect of 15 residential buildings on the ground that the profits from these exclusively residential buildings could be determined on
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stand along basis. In our opinion, that would not be proper, because Section 80-IB(10) allows deduction to the entire project approved by the local authority and not to a part of the project. If the conditions set out in Section 80-IB(10) are satisfied, then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to part of the project. In the present case, the commercial user is allowed in accordance with the DC Rules and hence the assessee was entitled to Section 80-IB(10) deduction on the entire project approved by the local authority. However, the assessee has not challenged the decision of the Tribunal in restricting the deduction to a part of the project. Therefore, while holding that in law, the assessee was entitled to section 80-IB(10) deduction on the profits of the entire project, in the facts of the present case, since the assessee has not challenged the decision of the Tribunal, we are not inclined to disturb the decision of the Tribunal in restricting the section 80- IB(10) deduction only in respect of the profits derived from 15 residential buildings.” ix) Thus, it could be seen that the Hon‟ble High Court do not approve the findings of the Tribunal that a residential building with commercial user up to 10% of the plot area would be entitled to deduction under section 80-IB(10). The issue that, in case where certain residential units are of a built-up area in excess of the prescribed limit of 1,000 sq.ft. in residential project, this would result in the entire exemption being lost, or whether the assessee would be entitled to a proportionate deduction was not before the High Court. Thus, in our opinion, the decision of Hon‟ble Jurisdictional High Court in the case of Brahma Associates (supra) does not come to the rescue of the Revenue.” 22. Following the aforesaid precedent, we, therefore, hold that merely because the assessee has violated the condition under Section 80-IB(10)(c) in relation to the flats on the 11th floor, the deduction under Section 80-IB(10) cannot be denied in its entirety, but, the denial shall be limited to the profits in respect of the flats on the 11th floor alone. For the balance of the residential units, the plea of the assessee for deduction under Section 80-IB(10) of the Act is justified, and the assessee succeeds on this aspect.” 11. Following the aforesaid precedent, we hold that merely because assessee violated the condition prescribed under Section 80-IB(10)(c) of the Act in relation to the amalgamated Bunglow G1 & G2, the deduction under Section 80-IB(10) of the Act cannot be denied in its entirety. In other words, the denial of deduction shall be limited to the profits in respect of the amalgamated Bunglow G1 & G2 alone. For balance of the residential units, which complied with the requirements of clause (c) of Section 80-IB(10) of the Act, assessee shall be eligible for deduction. The Hon‟ble Madras High Court in the case of Arun Excello Foundations (P) Ltd. vs. CIT (2013) 29 taxmann.com 149 (Madras) considered an argument on behalf of the
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Revenue, similar to what has been argued before us, to the effect that in the absence of any contemplation under Section 80-IB(10) of the Act for proportionate relief on partial compliance, section cannot be interpreted to granted pro rata relief. The aforesaid argument of the Revenue has been negated by the Hon‟ble Madras High Court and therefore the claim of the assessee for proportionate deduction under Section 80-IB(10) of the Act cannot be denied. 12. Thus, on the aforesaid aspect, assessee succeeds and we direct the Assessing Officer to re-compute the deduction under Section 80-IB(10) of the Act in relation to the „Lakshdweep‟ project by limiting the denial only to the profits in respect of Bunglow G1 & G2. For balance of the residential units, assessee shall be allowed deduction under Section 80- IB(10) of the Act.” 11. Following the aforesaid ratio laid down by the Pune Bench of the Tribunal (supra) we hold that merely because the assessee had violated the provisions of section 80IB(10)(c) of the Act in respect of two units i.e. row houses D-3 and D-4, the deduction under section 80IB(10) could not be denied in entirety. The assessee is entitled to the said deduction under section 80IB(10) of the Act in respect of balance units which have been constructed as per the conditions laid down in section 80IB(10)(c) of the Act. Only in respect of two units i.e. D-3 and D-4, deduction under section 80IB(10) of the Act would be denied to the assessee. Accordingly, we uphold the order of CIT(A) in directing the Assessing Officer to re-compute the deduction under section 80IB(10) of the Act in relation to the said project by limiting the denial only in respect of row houses D-3 and D-4 and for the balance units the assessee would be entitled to the said deduction under section 80IB(10) of the Act. Thus, the grounds of appeal raised by the Revenue are dismissed.” 15. Following the aforesaid ratio laid down by the Pune Bench of the Tribunal (supra) we hold that merely because the assessee had not completed the building No.D within prescribed time under the provisions of Act, the deduction under section 80IB(10) could not be denied in entirety. The assessee is entitled to the prorata deduction under section 80IB(10) of the Act in respect of building Nos.A, B and C which have been constructed as per the conditions laid down in section 80IB(10) of the Act. Reversing the order of CIT(A), the Assessing Officer is directed to allow the prorata claim of assessee under section 80IB(10) of the Act in respect of building Nos.A, B and C. Thus, the grounds of appeal raised by the assessee are allowed.”
The issue arising in the present appeal before us is identical to the issue before the Tribunal in the case of M/s. Surana Mutha Developers Vs. ITO (supra) and following the same parity of reasoning, we hold that the assessee is entitled to claim prorata deduction under section 80IB(10) of the Act in respect of buildings which have been completed i.e. 10 buildings. The non development of building Nos.B and C does not disentitle the assessee to claim
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the aforesaid deduction. Accordingly, we hold so and direct the Assessing Officer to allow the claim of assessee.
In the result, appeal of Revenue is dismissed.
Order pronounced on this 23rd day of March, 2018.
Sd/- Sd/- (D.KARUNAKARA RAO) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 23rd March, 2018. GCVSR आदेश की प्रयिलऱपप अग्रेपषि/Copy of the Order is forwarded to : 1. अऩीऱाथी / The Appellant; 2. प्रत्यथी / The Respondent; 3. आयकर आयुक्त(अऩीऱ) / The CIT(A)-3, Pune; The Pr.CIT-2, Pune; 4. ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, ऩुणे “ए” / DR 5. ‘A’, ITAT, Pune; गार्ड पाईऱ / Guard file. 6. आदेशािुसार/ BY ORDER, सत्यावऩत प्रतत //True Copy// वररष्ठ तनजी सधिव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण ,ऩुणे / ITAT, Pune