ITO WD 29(2)(5), MUMBAI vs. PADMAVATI ENTERPRISES, MUMBAI

सुनवाई की तायीख / Date of Hearing : 11.01.2017 घोषणा की तायीख /Date of Pronouncement : 11.01.2017 आदेश / O R D E R PER D. KARUNAKARA RAO, AM: There are two appeals under consideration. Both these appeals are filed by the Revenue for the AYs 2010-11 and 2011-12. Since, the issues raised in these appeals are inter-connected / identical, therefore, for the sake of convenience, they are clubbed, heard combinedly and disposed of in this consolidated order. Appeal wise adjudication is given in the following paras of this order.

2. On the facts and in the circumstances of the case and in law, the Ld CIT (A) has failed to consider the fact that some flats had been allotted to either the same person or the member of the same family and flat nos. 1507 and 1508 in B-Wing are a single unit and its built up area is 1227.96 Sq ft.”

3. Briefly stated relevant facts of the case are that the assessee is a builder and developer and filed the return of income declaring the total income of Rs. 76,984/- for the AY 2010-11. AO completed the assessment u/s 143(3) of the Act determining the assessed income at Rs. 9.44 Crs. In the assessment, AO disallowed the claim of deduction u/s 80IB(10) of the Act holding that the housing project was not completed within the time permitted under the Statute and also for violation of the built up area of the flat in the said housing project. Explaining the brief facts, ld Counsel for the assessee submitted that the assessee considered 15.6.2006 as the date of approval of the housing project within the meaning of the proviso to sub- section (10) of section 80IB of the Act. This was the date approved by the Municipal Corporation Authorities approving the assessee‟s housing project. However, Assessing Officer considered 15.7.2005 as the date of approval ignoring the fact that the said date is actually the date of „Intimation of Disapproval‟ (IOD) of the project in the hands of Shir H.B. Singh and others. In this regard, Ld Counsel for the assessee brought to page of the paper book, which is the letter of approval / commencement certificate.

4. After hearing both the parties and on perusal of the said pages of the paper book, we find, the documents relied upon by the AO are not the approvals as they are letter of „IOD‟ u/s 346 of the Municipal Corporation Act. Considering the factual matrix of the case, CIT (A), for the details discussion given in his order, allowed the appeal of the assessee on this issue. We find, the order of the CIT (A) is fair and reasonable on this issue and it does not call for any interference. Accordingly, this ground raised by the Revenue in both the appeals is dismissed. The 2nd ground of the Revenue in both the appeals relates to the built up area 5. of Flat Nos. 1507 and 1508 in B-Wing. In the assessment, Assessing Officer held that these flats are owned by the same family members and they are joined a single flat thereby built up area of the joined flat exceeded the permitted built up area under the Statute. In this regard, AO dismissed the assessee‟s argument that the said flats were independent, not joined at the time of sale of the two flats to the two members of the same family. This joining or merger of flats, if any, was done after