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Income Tax Appellate Tribunal, BENCH “E”,MUMBAI
Before: SHRI D.KARUNAKARA RAO & SHRI PAWAN SINGH
Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JM: 1. This appeal u/s 253 of the Income-tax Act (‘Act’) is directed by Revenue against the order of Ld. Commissioner of Income-tax (Appeals) [for short ‘the CIT(A)] –II, Mumbai dated 14.02.2004 for Assessment Year (AY) 2009-10. The assessee has raised the following grounds of appeal: “Whether on the facts and in the circumstances of the case and in law the Hon’ble CIT(A)-II, Thane is justified in holding that the assessee qualifies for deduction of profits u/s. 80IB(10) on pro-rate basis even though it has not fulfilled the provision of clause ‘(a) (ii)’ of sub section 10 of section 80IB(10).”
2. Brief facts of the case are that the assessee is a partnership firm engaged in the business as Builders & Developers, filed return of income for relevant AY on 30.09.2009 declaring total income of Rs. 31,37,558/-. The assessment was completed u/s 143(3) of the Act on 29.12.2011. The Assessing Officer (AO) while framing the assessment disallowed the deduction u/s 80IB of the Act. On appeal, the ld. CIT(A) allowed the deduction to the assessee. Thus, aggrieved by the order of ld. CIT(A), the Revenue has filed the present appeal before us.
We have heard the ld. Departmental Representative (DR) for the Revenue and ld. Authorized Representative (AR) for assessee and perused the material available on record. The ld. DR for Revenue argued that assessee received the approval from local authority for commencement of project on 25.05.2004 and the assessee has to complete the project within four years from the end of Financial Year (FY) in which the housing project was approved by the local authorities. Thus, the assessee was required to complete the project by 31.03.2009. The assessee failed to complete his project as per the time provided u/s. 80IB(10) and thus, the assessee was not entitled for the deduction eligible for 100% claim. As per the DR, ld. CIT(A) allowed the claim on wrong reasoning. On the other hand, ld. AR of the assessee supported the order of ld. CIT(A) and would argue that development right in the land under the project was acquired by assessee on 26.12.2004. Initially the sanction plan for housing project was obtained by the land owner on 25.05.2000. The assessee has not constructed the housing project as per the sanction plan obtained by the owner but constructed as per subsequent sanctioned plan. It was further argued that three housing projects were sanctioned and the due date for completion of all three housing projects was different. The ld AR for assessee argued that the ld CIT(A) after considering the subsequent sanctioning of plan granted the relief on the basis of decision of jurisdictional High Court in CIT vs. Vandana Properties (ITA No. 3633/09 and 4361/10 dated 28.03.2012.
We have considered the rival contention of the parties and gone through the orders of authorities below and the various documents filed by ld. AR of assessee including the different sanction plan issued by the Local Authorities. The AO during the assessment proceeding observed that assessee has completed 8 building out of 14 building and claimed 100% deduction of profit on completed building u/s 80IB(10). The AO further observed that in case where the housing project has been or is approved by the local authority on or after 01.04.2004, it should complete within four years from the end of FY in which the housing project is approved by the local authority. On asking the details of the housing project ,the assessee submitted copy of approved plan, details of project (building-wise), copy of Commencement Certificate, Certificate in Form No.10CCB of Completion Certificate of eight 3 M/s. Shri Radha Construction buildings in support of claim of deduction u/s 80IB(10). After considering the submission and verification of the document of the assessee, AO concluded that assessee received approval from local authority for commencement of project on 25.04.2004 and assessee has to complete the project within four years from the end of FY i.e. by 31.03.2009. However, the assessee has failed to complete the project. Thus, the assessee is not entitled for 100% claim u/s. 80IB(10). During the appellate proceeding before the ld. CIT(A), the assessee filed three different sanction plan dated 09.11.2006, 18.05.2007 & 27.07.2007 along with Certificate of Architect dated 14.08.2012. It was contended that development right of the land was acquired by assessee-firm on 26.12.2004 and first sanction of the housing plan was obtained by the land owner on 25.04.2004. The construction was not carried out by assessee as per the sanction plan obtained by land owners but the same constructed as per subsequent sanction plan. All three housing projects sanctioned specifically under different housing project and the due date for competition for all housing projects would be different. The assessee requested that the documents filed by them be allowed as additional evidence and requested for admission under Rule 46A. Accordingly, the additional evidence was forwarded to the AO for his verification and remand report vide letter dated 23.10.2012. The AO submitted his remand report on 19.12.2012 stating that first sanction plan was approved on 25.05.2004 by local authority and as per Explanation (i) with section 80IB(10) the approval has to be taken as per the date of approval of housing project. Thus, the time limit for completion of project was ending on 30.03.2009. As the project was not completed, the assessee is/was entitled for deduction u/s 80IB(10). The copy of remand report was supplied to the assessee. In reply to the remand report, the assessee filed written submission dated 19.01.2013 and 21.01.2013 in the written submission, the assessee reiterated that first approval was obtained by land owner on 25.05.2004. It was further contended that deduction u/s 80IB(10) is to be allowed to an undertakings which developed or constructed the housing project for the profit derived from such housing project. It was specifically stated that subsequent housing project approved were conceptually different from the earlier sanctioned plan and highlighted the various distinguishable fact from the earlier sanctioned plan as under:
4 M/s. Shri Radha Construction (a) The total built up area proposed by the land owners was 9980.76 sq. mtrs. where as the developed built up area for the housing projects of the appellant is 10916.32 sq. mtrs. (b) 272 tenements were proposed by the land owners whereas the appellant has constructed 244 tenements in the different housing projects (c) The recreation garden 2 as developed by the appellant is not comparable in shape and area with the one proposed by the land owners. (d) The position of L Wing as developed in north south on the plot of land where as it was east west as proposed by the land owners. (e) The distance between A and B Wings as developed by the appellant is 8 mtrs where as it was 8.3 mtrs as proposed by the land lords. (f) There is a distance of 10 mtrs between) and L wings where as these wings were connected in the plan of the land lords. (g) Wings A,L,B,C,H,I,F,G as developed are structures with lower ground, grounds plus three floors where as these wings were proposed as ground plus three floors by land lords. (h) The wings of the housing projects as developed have different built up area and number of residential units as compared to the plan of the land owners and this fact is certified by the architect in their certificate. (i) The above details establish that the approval granted by AMC as per details in para 1.6 above is for different housing projects as developed by the appellant and said dates are the dates on which the local authority has approved the building plans of the housing projects as developed by the appellant and not 25/05/2004 as certified by the auditors and adopted by the assessing officers.
In additions of the above facts the Ld. AR of the assessee further relied upon the case of CIT vs. Vandana Properties (supra). After considering the additional evidence, remand report furnished by AO and the detailed submission of the assessee. The ld. CIT(A) concluded as under:
“4. I have carefully considered the facts on record and submissions of the Ld. A.R. Undisputedly, first approval was obtained on 25/05/2004 by the land owners from whom the appellant firm has acquired development rights. It is an established legal position that the approval of housing project can be taken by the earlier owner and the subsequent owner can continue to construct the project as per the approved plan for claiming deduction u/s. 80IB( 10). The provisions incorporated in Sec. 80IB (10) do not distinguish the approval obtained by the previous owner and the subsequent owner of the land. On perusal of the details furnished including the certificate of the Architect dated 14/08/2012 and various plans of approval, it is noticed that the first approval was obtained for 14 buildings (Wing- A to N) with 16 Flats in each building. The built up area of the buildings varied from 552.72 sq. mtrs to 792.74 sq. mtrs. Subsequent revised approval is obtained vide letter dated 09/11/2006 for building no. F, G,H, and I with minor variations in the built up area and with increase of one or two flats in 3 buildings. Similarly, another revised approval was obtained on 18/05/2007 with minor variations in the built up area and addition of two flats in building no. A & L. The 3rd revised sanction was obtained on 27/07/2007 with minor 5 M/s. Shri Radha Construction variations in the built up area and making the number of flats 20 per building. Another revised sanction was .obtained on 24/06/2008 in respect of building no. 0 & E without any changes either in the area or number of flats. Thus, it was crystal clear that the number of buildings in the housing project remained the same with minor variations in the built up area, and number of flats. The certificate of the Architect as well as approved plans clearly prove that the subsequent approvals were only the revision of the first approval. Thus, I hold that the housing project approved originally on 25/05/2004 substantially remained the same which has been constructed and developed by the appellant firm. Under these circumstances, as per the provisions of Explanation (i) to Sec. 80IB(10), the date of first approval has to be considered as the date of approval for the purposes of calculation of the date of completion. Accordingly the date of completion for all the buildings falls on 31/03/2009. Undisputedly only 8 buildings have been completed by 31/03/2009. The judicial pronouncements relied upon by the appellant on this account are of no help because In the case of M/s. Vandana Properties (supra), the subsequent approval was taken for E building which was not mentioned at all in the original approval of the plan. The earlier approval buildings A to 0 were also completed before the approval of E building. Under these circumstances, the E building was held to be a separate housing project independent of earlier one. However, in the case of appellant, all the buildings of the first approval remained the same in the revised approval with minor variations. Similarly, in the case of M/s. Kasturi Construction (supra) original plan was approved with 4 wings each having 4 floors, but the subsequent plan was approved for 3 wings each having 8 floors. In this, the constructed area was also increased subsequently to 4079.50 sq. mtrs. from 3379.76 sq. mtrs. Thus the subsequent approval for 3 buildings was considered to be fresh approval on the ground of substantial change. However, in the case of appellant, there has been only minor or superficial changes. Similarly the other cases relied upon are also distinguishable on facts. Therefore, I further hold that the case laws relied upon by the appellant are not applicable under the facts and circumstances of the case of the appellant and accordingly the subsequent approvals cannot be considered as fresh approval of the housing project.
4.1. It is noticed that the appellant has completed 8 buildings namely, D,E,F,G,H,I,] and K and obtained occupation certificates as reported by the A.O. vide his remand report dated ,1/01/2013. In respect of the other buildings, namely, A,B,C,L,M and N, the appellant has not furnished occupation certificate even at the appellate stage. The Ld. A.R. has, however, claimed that the application for obtaining of the occupation certificate had been filed before the local authority by the Architect of the assessee firm on 15/12/2008 and 13/11/2009. No proof for filing of the application dated 15/12/2008 has been filed. Therefore, even after considering the deemed approval within 21 days from the date of filing for application dated 13/11/2009, the date of completion would be after the prescribed date of completion i.e. 31/03/2009. Hence this contention of deemed occupation certificate is also of no help to the appellant. Accordingly, the conclusion which emerges from the facts and circumstances of the case is that the appellant has completed only 8 6 M/s. Shri Radha Construction buildings out of 14 buildings and since each building is a separate project if other conditions are satisfied, the appellant will be entitled for deduction u/s. 801B(10) in respect of the profit derived from such completed buildings. Undisputedly, total area of the land on "which housing project has been constructed. is 16,200 sq. mtrs. i.e. more than 4 acres and hence on proportionate basis, the area under 8 buildings is certainly more than one acre. Thus, it is also clear that the other conditions of the section are satisfied in respect of the 8 buildings completed. Therefore, respectfully following decisions of Hon. Jurisdictional High Court in the case of M/s. Vandana Properties (supra), I hold that the appellant is entitled to claim deduction u/s. 80IB (10) in respect of the 8 buildings which have been completed as such cluster of buildings constitutes a separate housing project. The A.O. is directed to allow the deduction u/s. 80IB( 10) only in respect of the profits derived from 8 buildings completed by 31/03/2009.