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Income Tax Appellate Tribunal, “ F” BENCH, MUMBAI
2 and 1126/Mum/2014 आदेश / O R D E R PER BENCH: These cross appeals are directed against the order dated 05.11.2013 passed by Ld CIT(A)-I, Thane and it relates to the assessment year 2010- 11. The issued urged by both the parties relate to the deduction claimed by the assessee u/s 80IB(10) of the Act.
The assessee is a builder and developer and it claimed deduction u/s 80IB(10) of the Act in respect of a housing project named “U.K. Residential”. The AO noticed that the commercial area of the project had exceeded the maximum limit prescribed in sec. 80IB(10) of the Act. The AO also took the view that the assessee did not obtain completion certificate within the prescribed period. Accordingly, the AO held that the assessee has violated the conditions prescribed in sec. 80IB(10) of the Act and accordingly rejected the claim made u/s 80IB(10) of the Act. The Ld CIT(A) upheld the rejection of claim by concurring with the view of the assessing officer that the commercial area of the project has exceeded the limit prescribed in sec. 80IB(10) of the Act. With regard to the completion certificate, the Ld CIT(A) followed his predecessor’s order, wherein the first appellate authority had held that (a) the assessee had completed the project by the prescribed date and, in fact, applied for completion certificate within that date. (b) Alternatively, the Ld CIT(A) held that the time limit prescribed for completion of the project shall not apply to the assessee, since the project of the assessee was approved prior to the insertion of the provisions prescribing the time limit.
Accordingly, the Ld CIT(A) held that the assessee has complied with the conditions prescribed for completion of the project.
3 and 1126/Mum/2014 3. The assessee is in appeal challenging the order of Ld CIT(A) with regard to the rejection of the claim on the ground of violation of the conditions prescribed for commercial area. The revenue is aggrieved by the decision of Ld CIT(A) in holding that the time limit prescribed for completion of the project is not applicable to the assessee, since the project had been approved prior to the insertion of that condition.
We heard the parties and perused the record. With regard to the appeal filed by the assessee, the Ld D.R fairly admitted that the issue urged by the assessee has since been decided in favour of the assessee by the co-ordinate bench of the Tribunal in the assessee’s own case for assessment years 2006-07 to 2009-10 in to 3922/Mum/2012 and ITA No.6557/Mum/2012 dated 20-02-2015, wherein the Tribunal has decided the issue in favour of the assessee by following the decision of jurisdictional Bombay High Court rendered in the case of CIT Vs. Brahma Associates (2011)(333 ITR 289). The Ld A.R further submitted that the decision rendered in the case of Brahma Associates (supra) has since been approved by the Hon’ble Supreme Court in the case of CIT Vs. M/s Sarkar Builders (Civil Appeal No.4476 of 2015 dated 15-05-2015). In view of the above, we set aside the order passed by Ld CIT(A) on the issue relating to commercial area, since the project has been approved 0n 08-04-2003, i.e., prior to the insertion of the limits for commercial area.
With regard to the appeal filed by the revenue, we notice that the Ld CIT(A) has given a finding that the project has been completed by the assessee prior to the prescribed date. Further we notice that the co- ordinate bench of the Tribunal has held in the assessee’s own case (referred supra) that the completion certificate is not required in respect of projects approved prior to 1.4.2005. We notice that the Co-ordinate bench has followed the decision rendered by Hon’ble Madras High Court in the