Citation Codes

Equivalent Citations

citation codes

Case Number

ITA No. 1250.PN/2009 & 707.PN/2010, (Asstt. Years: 2006-07 & 2007-08)

Advocates

Appellant by: S/Shri Sunil Pathak & Nikhil Pathak
Respondent by: Shri Narendra Kumar, CIT

Judges

I.C Sudhir, J.M
G.S Pannu, A.M

Acts

provisions of Sec. 10(23G) of the I.T. Act 1961

See more information ...

Smart Summary

Tribunal Opinion — Summary (ITA No. 1250/PN/2009 & ITA No. 707/PN/2010)

Factual and Procedural Background

The assessee is a firm engaged in the business of promoters and builders that constructed a housing development at Warje, Pune on land of about 20 acres comprising 16 buildings (A, B, C & D types). The assessee claimed deductions under section 80IB(10) of the Income Tax Act for profits from sale of residential units. The Assessing Officer (A.O.) denied the deduction (claim of Rs. 4,42,18,673 for AY 2006-07 and Rs. 18,43,29,768 for another year) principally on the ground that, although 11 of the 16 buildings were completed within the prescribed time limit, the entire project (16 buildings) was not completed by the statutory cutoff date computed from the first approval of the housing project by the Pune Municipal Corporation (PMC), and therefore the eligibility condition of section 80IB(10) was not satisfied.

The assessee appealed to the Commissioner of Income Tax (Appeals) (CIT(A)), who upheld the A.O.'s disallowance. The assessee further appealed to the Tribunal (I.C. Sudhir, Judicial Member). The Tribunal considered whether the date for computing the statutory completion period and the notion of a "housing project" under Explanation to section 80IB(10) should be applied to the entire sanctioned layout (all 16 buildings) or can be applied to clusters/portions (notably A1–A5 "Atul Nagar" and B1–B6 "Rahul Nisarg") that were separately planned/constructed and completed within the prescribed period.

Legal Issues Presented

Whether the date of first approval of the "housing project" for the purposes of section 80IB(10) is to be taken as the date on which the building plan of the particular housing project (or part thereof) is first approved by the local authority, in accordance with Explanation (i) to section 80IB(10).
Whether the concept of a "housing project" under section 80IB(10) must be equated with the entire sanctioned layout for the whole land (i.e., all 16 buildings) such that deduction is denied if all sanctioned buildings are not completed within the prescribed period, or whether a portion/cluster of buildings (e.g., A1–A5 and B1–B6) that satisfy the statutory conditions can be treated as a distinct project eligible for deduction.
Whether the assessee satisfied the completion-time requirement for the clusters A1–A5 and B1–B6 (based on the dates of building-plan approval and completion certificates) so as to claim deduction under section 80IB(10).

Arguments of the Parties

Assessee's (Ld. A.R.) Arguments

Explanation (i) to section 80IB(10)(a) deems the housing project to be approved on the date the building plan of such housing project is first approved by the local authority; therefore "housing project" and "building plan" are distinct concepts and the date of approval for each cluster must be determined by the first approval of that cluster's building plan.
Different layout and building plans were sanctioned at different times for various groups; A1–A5 (Atul Nagar) and B1–B6 (Rahul Nisarg) had revised plans and completion certificates showing they were completed well before 31 March 2008.
Each of the two clusters occupied more than one acre separately, had residential units not exceeding the maximum built-up area (1500 sq.ft. for Pune), and had no commercial area—thus meeting the statutory conditions of section 80IB(10).
The assessee relied on a CBDT letter (4 May 2001) indicating that a housing project approved by local authority should be considered adequate for the purposes of section 80IB(10) and similar provisions; this supports treating separately approved clusters as eligible projects.
Assessee cited tribunal/court decisions (Saroj Sales Organisation; Brigade Enterprises; Vandana Properties; Mudhit Madanlal Gupta) to support the proposition that a portion of a larger development can qualify as a "housing project" for the deduction if it independently satisfies the conditions.
Assessee also relied on higher court authority (CIT v. Shaan Finance; Bajaj Tempo Ltd.) to urge liberal interpretation of incentive provisions.

Revenue's (Ld. D.R.) Arguments

The A.O. and CIT(A) were correct to take the date of first approval of the housing project (the earliest sanction by PMC for the entire complex) as the starting point; since not all 16 sanctioned buildings were completed by 31 March 2008, the deduction under section 80IB(10) could not be allowed for the claimed amounts.
Benefit of deduction cannot be premised on the CBDT letter dated 4 May 2001 as relied upon by the assessee, because that letter addressed a problem of an individual and is not a binding rule to override the statutory Explanation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Saroj Sales Organisation v. ITO [2008] 115 TTJ (Mum) 485	Held that it is not open to Revenue to include an unrelated block as part of another block merely to deny relief under section 80IB(10); separate commencement certificates for blocks were relevant.	The Tribunal relied on this decision to support the proposition that separately sanctioned/completed blocks should not be aggregated by Revenue to deny benefits; used as precedent to treat A and B clusters independently.
Dy. CIT v. Brigade Enterprises (P.) Ltd. [2008] 119 TTJ (Bang) 269 / [2009] 28 SOT 7 (URO)	Held that a plan for development (a preliminary plan) is only a work order and not the final plan sanctioned by local authority; detailed building plans are necessary for sanction.	The Tribunal cited this decision to emphasize that the date of approval must be the date of final building-plan approval by the local authority, supporting the assessee's contention that separately approved/revised plans determine the statutory timeline.
Vandana Properties v. Asstt. CIT [2010] 128 TTJ (Mum) 89 / [2009] 31 SOT 392	Expressed the view that a portion of a larger housing project can be considered a housing project for the purposes of section 80IB(10) if it satisfies statutory conditions.	The Tribunal referenced this decision as a similar view to Mudhit Madanlal Gupta and used it to support allowing deduction for the eligible clusters A and B.
Mudhit Madanlal Gupta v. Asstt. CIT [2011] 9 taxmann.com 235 (Mum.)	Held that a "housing project" need not be the entire group of buildings on a landholding; a particular building or part of a larger project may constitute a housing project eligible for deduction if otherwise eligible.	The Tribunal relied on this precedent to conclude that eligible portions (A1–A5 and B1–B6) of the larger sanctioned layout can be treated as separate housing projects for claiming deduction under section 80IB(10).
CIT v. Shaan Finance (P.) Ltd. [1998] 231 ITR 308 / 97 Taxman 435 (SC)	Cited as authority supporting liberal interpretation of incentive provisions (as urged by the assessee).	Relied upon by the assessee (and recorded in submissions); the Tribunal acknowledged submissions that incentive provisions merit liberal interpretation when considering the assessee's arguments.
Bajaj Tempo Ltd. v. Commissioner Of Income-Tax [1992] 196 ITR 188 / 62 Taxman 480 (SC)	Cited in support of the principle that incentive provisions should be construed liberally to effectuate legislative purpose.	Placed before the Tribunal by the assessee to bolster the argument for a purposive and liberal interpretation of section 80IB(10); the Tribunal considered this context in assessing submissions.

Court's Reasoning and Analysis

The Tribunal identified the core legal interpretive provision as Explanation (i) and (ii) to clause (a) of sub-section (10) of section 80IB. It reproduced both clauses:

Explanation (i): when approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority.
Explanation (ii): the date of completion shall be the date on which the completion certificate in respect of such housing project is issued by the local authority.

Interpreting these explanations, the Tribunal reasoned that:

The statutory starting point for computing the completion period is the date when the building plan of the particular housing project (or part thereof) was first approved by the local authority, not necessarily the date of an earlier, general layout approval for the entire complex.
Coupling Explanation (i) and (ii) means that the relevant "housing project" and its "completion" are to be ascertained with reference to the building-plan approval and the corresponding completion certificate issued by the local authority for that building-plan approval.
The terms "housing project" and "building plan" are different concepts in the context of the Explanation; therefore, a separate building-plan approval for a cluster is a valid starting point for that cluster's completion-time computation.
The Tribunal drew support from earlier tribunal decisions (Brigade Enterprises, Saroj Sales Organisation, Mudhit Madanlal Gupta, Vandana Properties) which it interpreted as holding that a portion or cluster of a larger development can qualify independently as a housing project for the purposes of section 80IB(10), and that preliminary/development plans are not substitutes for final building-plan approvals by the local authority.

Applying this interpretive framework to the undisputed facts before it, the Tribunal observed that for the A and B clusters:

A1–A5 ("Atul Nagar"): first building-plan approval by PMC recorded on 29.4.2003 (Commencement Certificate No. 4269) with actual construction executed per revised plan CC 4101/27/6/2003; construction completed between 10.1.2005 and 31.8.2005; plot for A group was 139,466 sq.ft.; each flat's built-up area did not exceed 1500 sq.ft.; no commercial area; completion certificates and other material were on record and not disputed by the authorities below.
B1–B6 ("Rahul Nisarg"): first building-plan sanction recorded on 29.4.2003 (Commencement Certificate No. 4269), with actual construction per revised plan sanctioned on 20.3.2004 (CC No. 2225); the project comprised 396 flats; completion certificate dated 14.7.2006; plot area 138,203 sq.ft.; built-up area of flats below 1500 sq.ft.; entirely residential; material facts were not disputed by the authorities below.

Given that Explanation (i) requires treating the date of the first building-plan approval for the particular housing project/part as the starting point and Explanation (ii) requires the completion certificate date for that project/part as the completion date, the Tribunal concluded that the A and B clusters satisfied the statutory conditions and were completed within the prescribed time limit for the purposes of section 80IB(10). The Tribunal therefore found in favour of the assessee on these clusters and set aside the orders of the authorities below on this issue, directing the A.O. to allow the claimed deductions for the specified buildings.

Holding and Implications

HOLDING: The Tribunal allowed both appeals. It held that the assessee is entitled to the claimed deduction under section 80IB(10) in respect of buildings A1–A5 ("Atul Nagar") and B1–B6 ("Rahul Nisarg Co-operative Housing Society Ltd."), and directed the Assessing Officer to allow the deduction. The Tribunal set aside the orders of the authorities below on this issue.

Implications:

Direct effect on the parties: The Tribunal's decision requires the A.O. to grant the section 80IB(10) deduction for the profits attributable to the specified A and B clusters because the first building-plan approval dates and the completion certificates for those clusters satisfy the timing and other statutory requirements, and material facts relating to plot area, built-up area, residential nature and completion dates were not disputed.
Scope and precedent: The opinion relies on earlier tribunal and court decisions to interpret Explanation (i) and (ii) to section 80IB(10) and to support the view that a portion of a larger development that independently satisfies statutory conditions can be treated as a housing project for the deduction. The Tribunal did not state that it was laying down a new binding principle beyond this case-specific application; it applied existing authorities to the facts before it.

Result: Both appeals allowed; the Tribunal directed the Assessing Officer to allow the claimed deductions under section 80IB(10) for the specified buildings.

Show full summary ...

Rahul Construction Co., Rahul Capital, 115/B Prabhat Road, Pune v. Income Tax Officer, Ward 3(1), Pune

ITA No. 1250/PN/2009

I.C. Sudhir, Judicial Member - The assessee has questioned the first appellate order on following grounds :

"(1) The CIT(A) erred in confirming the disallowance of deduction of Rs. 4,42,18,673/- u/s. 80IB(10) in respect of the housing project constructed by the assessee at Warje, Pune.

(2) The CIT(A) erred in holding that the assessee's project consisted of 16 buildings as per the sanctioned layout plan of the plot of land of about 20 acres and as all these buildings were not constructed before 31.3.2008, it did not satisfy the basic condition of section 80IB(10) and therefore, the assessee was not entitled to the deduction u/s. 80IB(10) of the Act.

(3) The CIT(A) was not justified in holding that -

(a) the condition for completion of the project within four years of the year in which the first building plan was passed applied to the assessee's case although the first building plan was passed before the introduction of this condition in section 80IB(10).

(b) the project consisted of 16 buildings and as the assessee had not completed the construction of all these buildings, the condition of completing the housing project u/s 80IB(10) was not fulfilled.

(c) the concept of a 'project' as per section 80IB(10) was to be understood as per the sanctioned layout for the entire land and the condition in section 80IB(10) required the assessee to complete the construction of all the buildings shown in the layout plan within four years.

(d) the assessee's stand that 11 buildings namely A1 to A5 and B1 to B6 covering the land of more than one acre were completed and hence, these buildings together constituted a project and the deduction ought to have been allowed in respect of the profits from these buildings is not a correct stand.

(4) The CIT(A) failed to appreciate that -

(a) the first building plan of the assessee was passed before 1.4.2004 and hence, the condition for completion of the project within four years was not applicable in this case and the deduction u/s 80IB(10) had to be allowed to the assessee as per the provisions of section 80IB(10) on the Statute Book on the date of passing of the first plan.

(b) the assessee had completed 11 buildings namely, A1 to A5 and B1 to B6 by 30.7.2006 which were constructed on a portion of land occupying more than one acre, and therefore they constituted a project and the deduction u/s 80IB(10) was allowable in respect of the profits from these eleven buildings.

(c) there was no definition of the term 'Project' in section 80IB(10) and the same could not be equated with the entire sanctioned layout.

(d) the cluster of 11 buildings namely, A1 to A5 and B1 to B6 satisfied all the conditions of section 80IB(10) and therefore, the profits from these buildings were entitled to deduction under that section.

(5) The CIT(A) failed to appreciate that the interpretation given by him of section 80IB(10) is contrary to the purpose of the section inasmuch as an assessee cannot develop a portion of the land exceeding one acre and claim deduction under section 80IB(10) in respect thereof because such assessee has to put up the layout plan for the whole land and hence such assessee has to perforce construct all the buildings sanctioned as per the layout plan within four years to claim deduction under section 80IB(10) which might not be practically possible due to various reasons."

2. The relevant facts emerging from the orders of the authorities below are that the assessee firm engaged in the business of promoters and builders had claimed deduction u/s. 80IB(10) of Rs. 4,42,18,673/-. The same was denied by the A.O mainly on that basis that out 16 buildings in the project in which one single approval and sanction was taken, only 11 buildings were complete within the prescribed time limit upto 31st March 2008. The A.O. stated that the first lay out plan in respect of entire complex was sanctioned by Pune Municipal Corporation (PMC) vide order No. DPO/45/D/646 dated 3.4. 2003 and the building plan was sanctioned vide commencement certificate No. 4269 dated 29.4.2003. The entire project sanctioned by these orders comprised of A, B, C & D type of buildings were subjected to amendments later. Referring Explanation below Sec. 80IB(10)(a) of the I.T. Act, the A.O held that as per the Explanation (i) when the approval in respect of the housing project was obtained more than once, the very first approval was the date to be taken for the approval of the project for the purpose of Sec. 80IB(10)(a) of the Act. The A.O. stated that in this case, the date of approval of the project was 3.4.2003, therefore, Sec. 80 IB(10)(a) required that the project should have been completed on or before 31st March 2008, which was not fulfilled by the assessee in respect of the entire project comprising of A to D, type of buildings.

3. The contention of the assessee remained that the housing project consisted 16 buildings in a total area of 20 acres and 5 different lay out plans and accordingly different building plans were sanctioned from 3.4.2003 to 13.7.2003. Five buildings i.e. A1 to A 5 known as "Atul Nagar" were sanctioned as per amended lay out plans dated 27.6.2003, 3.10.2003 and 20th April 2004. Further, 6 buildings B1 to B 6 were constructed on the basis of lay out plans sanctioned on 15.9.2004 and 8.3.2006. It was stated that these 6 buildings known as "Rahul Nisarg Co-operative Housing Society Ltd." were separated by a wall from "Atul Nagar" and constituted a project by itself. It was submitted that different groups of building A & B should be treated different projects since these were constructed on plot of land which was more than 1 acre separately. The lay out plans were different for these 2 groups of buildings and these were completed well before 31^st March 2008. The A.O did not agree with these explanations of assessee. The Ld CIT(A) has also upheld the action of the A.O.

4. Reiterating the submissions made before the authorities below, the Ld. A.R referred Explanation (i) to Sec. 80IB(10)(a) of the Act relying upon which, authorities below have denied the claimed deduction. He tried to submit that the very wording of Explanation (i) suggest that approval in respect of the housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority. The Ld. A.R. tried to submit that "housing project and building plan" are two different concepts and thus date of approval of a housing project by PMC cannot be taken as the date of approval of the building plan by the local authority. He submitted that as per Explanation (i) the date on which building plan is approved by the local authority will be taken as approval of the housing project for computation of the period of completion. The Ld. A.R. reiterated the contents of written submission dated 13.8.2009 before the Ld CIT(A) which has been reproduced in para No. 3.4 of the first appellate order. For a ready reference, it is reproduced hereunder :

"(1) In this case, the only issue is regarding the disallowance of claim u/s 80IB(10) of Rs. 4,43,37,400/-. The assessee is a promoter and builder. It has constructed a project on the land admeasuring about 20 acres at S. No. 79/B, Warje, Pune. The first layout plan was sanctioned by Pune Municipal Corporation on 3.4.2003 vide their order No. DPO/45/D/646. The sanctioned layout was for 16 buildings consisting of 680 tenements. The details are given in para 6 of the asst. order. As per the condition laid down in section 80IB(10), the assessee has to complete the project within four years of the year in which the first plan is sanctioned. In this case, therefore, according to the A.O., the assessee had to construct the entire project by 31.3.2008. The A.O. holds that the assessee has completed only A & B type of buildings by this date and the other buildings in C & D type are still under construction and therefore, he held that the assessee had not completed this project within four years and accordingly, he has disallowed the claim of deduction u/s 80IB(10).

(2) In the paper book on page no. 4 the assessee has given the first plan which was sanctioned on 29/4/2003. Thereafter, the plan was revised a few times and on page no. 5, the assessee has given the final plan as per which the buildings of A & B Group were completed. This final plan was passed on 8.3.2006. The A group consisted of five buildings namely A1 to A5 and which cluster is called Atul Nagar. The B group buildings cost of six buildings B 1 - B 6 and this cluster is called Rahul Nisarg. Both these clusters are separately registered societies and they have their separate amenities. The particulars regarding these clusters are as under -

(3) Cluster of A buildings - Atul Nagar

(i) Approval of the project by local authority before 31/3/2007.

The 1st building plan for A type has been sanctioned by Pune Municipal Corporation on 29/4/2003 vide commencement certificate no. 4269 (page No. 4).

However actual construction of A type building was executed as per the revised plan vide no. CC4101/ 27/6/2003 copy of revised plan enclosed on page no 5.

(ii) The size of the plot on which A type buildings i.e. A-1 to A-5 have been constructed is ---- 139466 sq.ft.

(iii) The completion of the project is before 31st March 2008 in case where the plan is sanctioned before 1/4/2004.

The project A type building i.e. A-1 to A-5 consists of 360 residential units and the construction has been completed between 10/1/2005 to 31/8/2005.

Enclosure of proofs (page Nos. 6 to 9):

(iv) The residential unit has a maximum built up area of 1500 sq.ft. for Pune city.

Each unit in A type project in all the buildings of A-1 to A-5 i.e. 360 flats each flat is less than 1500 sq.ft.

(v) The built up area of the flats in this cluster is in the range of ---- sq.ft. to ---- sq.ft. The brochure is enclosed on page ----.

(vi) This cluster has no commercial area at all.

(4) B- Group of buildings Rahul Nisarg -

(i) This cluster consists of 6 buildings B1 to B 6 constructed on land admeasuring 138203 sq.ft.

(ii) The first building plan was sanctioned on 29.4.2003 vide commencement certificate No. 4269 page no. 16

(iii) However actual construction was executed as per revised plan sanction on 20/3/2004 wide cc no. 2225 page no 17

(iv) The project consists of 396 flats and is completed as per the details hereunder -

(v) The built up area of the flats does not exceed 1500 sq.ft. The building plan/brochure is enclosed on page 18 to 23.

(vi) This project is entirely a residential project and there is no commercial area therein."

The Ld. A.R. submitted that the term ''housing project" is not defined anywhere under the Income Tax Act, therefore, there is a possibility of different views on the subject leading to protracted litigation. The Maharashtra Chamber of Housing Industry vide its letter dated 1^stJanuary 2001 had requested for clarification under the provisions of Sec. 10(23G) of the I.T. Act 1961 from the Hon'ble Finance Minister, Government of India. It was requested in the said letter that suitable clarification be made to define the term "housing project" to include various amenities and facilities, inter alia, including that of a convenient shopping etc. The said letter was replied by the CBDT vide its letter dated 4th May 2001. The Ld. A.R. referred the relevant extract of the said letter of CBDT i.e. "with regard to your query regarding the definition of housing project which has been approved by local authority as a housing project should be considered adequate for the purpose of Sec. 10(23G) and Sec. 80IB(10)". The Ld. AR. Referred page Nos. 1 to 71 of the paper book i.e. copies of profits and loss account for A & B type projects; Profit & Loss A/C for C & D Type Project; Commencement Certificate For A Type Project, 1 St Sancation Plan Dt. 29/04/2003 (For A Type); Revised Sanction Plan Ce No. 4101 Dt. 27/06/2003 (For Execution Of Construction For-A Type Project); Completion Certificate For A Type Project; Completion Certificate For B Type Project; 1 St Sanction Plan Dt 29/04/2003 (For B Type); Revised Sanction Plan Ce No. 2225 Dt. 20/03/2004 (For Excution Of Construction For - B Type Project); Completion Certificate For B Type Project; Submission Letter Dated 30/10/2008 To Income tax Officer Ward 3(1); Submission Letter Dated 18/11/2008 To Income Tax Officer Ward 3(1); A Type Project Brouchure; B Type Project Brouchure; and CIT Appeal Submission dated 13.08.2009 and CIT Appeal Submission dated 18.08.2009.

5. The Ld. A.R. contended that in view of above submission and the provisions of the related law, the assessee is very much entitled for deduction claim on the profit earned on the sale of the units in Buildings A1 to A 5 in "Atul Nagar" and in Buildings B1 to B6 in "Rahul Nisarg Co-operative Housing Society Ltd." He placed reliance on the following decisions :

(1) Saroj Sales Organisation v. ITO [2008] 115 TTJ (Mum) 485

(2) Dy. CIT v. Brigade Enterprises (P) Ltd. [2008] 119 TTJ (Bang) 269/[2009] 28 SOT 7 (URO)

(3) Vandana Properties v. Asstt. CIT [2010] 128 TTJ (Mum) 89/[2009] 31 SOT 392

(4) Mudhit Madanlal Gupta v. Asstt. CIT [2011] 9 taxmann.com 235 (Mum.)

6. The ld. A.R. submitted further that liberal interpretation is required to be given to the incentive provision to achieve the object of legislature. In support, he placed reliance on the following decisions :

(1) CIT v. Shaan Finance (P) Ltd. [1998] 231 ITR 308/ 97 Taxman 435 (SC).

(2) Bajaj Tempo Ltd. v. Commissioner Of Income-Tax. [1992] 196 ITR 188 / 62 Taxman 480 (SC)

7. The Ld. D.R. on the other hand tried to justify the orders of the authorities below. He submitted that the assessee had completed only the part of the project upto the prescribed time limit i.e. 31st March 2008 from the date of first approval of the housing project, hence, as per Explanation (i), the assessee was not entitled for the benefit of claimed deduction u/s. 80IB(10) of the Act. He submitted that benefit of deduction u/s. 80IB(10) cannot be given on the basis of CBDT letter dated 4th May 2001 as relied upon by Ld. A.R. since the said letter was addressed to clarify problem of an individual.

8. Considering the above submission, and having gone through the orders of the authorities below, material available on record and the decisions relied upon, we find that the issue involved is as to whether the assessee had completed the housing project within the prescribed time limit since the date of first approval of the project by the PMC.

9. To decide the above issue, it is necessary to decide firstly as to what would be first date of approval of the housing project by the PMC to compute the time limit prescribed for completion of the project to take benefit of deduction u/s. 80IB(10) of the Act. There is no dispute on some material facts that out of 16 buildings in the housing project of the assessee only 11 buildings were completed within the prescribed time limit upto 31st March 2008. The lay out plan in respect of entire complex was sanctioned by PMC vide order No. DPO/45/D/646 dated 3.4.2003 and the building plan was sanctioned vide Commencement Certificate No. 4269 dt. 29.4.2003. Admittedly, the term "housing project" has not been defined in the Income Tax Act but in the context of deduction u/s. 80IB(10) an Explanation has been provided below clause (a) to sub-section (10) to Section 80IB. For a ready reference, the said Explanation is being reproduced hereunder :

"(i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority.

(ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority."

The very reading of above Explanation (i), it makes clear that for the eligibility of the deduction provided u/s. 80IB(10) of the Act, the date on which building plan of such housing project has been firstly approved by the local authority will be treated as approval in respect of the housing project. When we read Explanation (ii) with Explanation (i) it makes clear that completion of construction of such building plan first approved by the local authority will be taken the date of completion of construction of such building plan when completion certificate has been issued by the local authority. In other words, in clause (i) of the Explanation, it has been made clear what would be the housing project, first approval of which by the local authority would be taken as starting point of the Housing Project and in clause No. (ii), it has been made clear that what would be the Completion Certificate in respect of such housing project issued by local authority to compute the prescribed time limit for verification of eligibility of assessee for the claimed deduction. In view of the above Explanation, we find substance in the contention of the ld. A.R. that approval of the housing project and approval of building plan are two different concepts. The Bangalore Bench of the Tribunal in the case of Brigade Enterprises (P.) Ltd. (supra) has held that plan for development is only a work order and not final plan sanctioned by the local authority. For any project, there could not have been a plan without submission of the detailed building plans, by the architect and what requisite details required to be submitted for approval of the building plans by the local authority. In the case of Saroj Sales Organisation (supra), before Mumbai Bench, almost similar facts as before us were there. The commencement certificate in respect of six wings in Block 'N' was separately received by the assessee and all the flats in Block were less than 1000 sq.ft. It was held by the Tribunal that it is not upon to the revenue to include block 'BC' as part of block 'N' just to deny relief to the assessee u/s. 80 IB(10). The Tribunal observed that Block "BC" was meant for higher strata of the Society had been kept separately by assessee in all the respect, assessee had not claimed relief u/s. 80IB in respect of Block "BC". In the case of Mudhit Madanlal Gupta (supra) before the Mumbai Bench, it has been held that the housing project does not necessarily have to be various group of buildings constructed on that particular land, but it can also be a particular building or any building which is part of a large project. It has been further held that whatever portion of the housing project is otherwise found to be eligible has to be considered as a housing project for the purpose of deduction u/s. 80 IB (10) of the Act. Similar view has been expressed by Mumbai Bench of the Tribunal in the case of Vandana Properties (supra).

10. In view of above discussion, we come to the conclusion that for verification of eligibility of benefit claimed u/s. 80IB(10) of the Act by the assessee on buildings A1 to A5 in "Atul Nagar" and buildings B1 to B6 in "Rahul Nisarg Co-Operative Housing Society Ltd.", the assessing authority has to verify as to when the building plans for these buildings were firstly approved by the local authority and taking the said date of approval a starting point, he has to verify as to whether these buildings were completed within the prescribed time limit i.e. 31^st March 2008 on the basis of the Completion Certificate in respect of such housing project issued by the PMC. When we examine the facts of the present case under the above background, we find that the authorities below have not disputed the fact furnished in this regard by the assessee that under the project "Atul Nagar" consisting of buildings A1 to A5, the first building plan for A type was approved by the PMC on 29.4.2003 vide Commencement Certificate No. 4269 (page No. 4 of the paper book). However, actual construction of A type building was executed as per the revised plan vide No. C.C. 4101/27/6/2003 (PAGE No. 5 of the paper book). The size of the plot on which the A type building i.e. A1 to A6 have been constructed is 1,39,466 sq.ft. The project A type building i.e. A1 to A5 consists of 360 residential units and the construction has been completed between 10.1.2005 to 31.8.2005 (page Nos. 6 to 9 of paper book). The authorities below have also not disputed this material fact that residential units has a maximum built up area of 1500 sq.ft. Likewise, these material facts that B Group buildings in "Rahul Nisarg Co-operative Housing Society Ltd.," have been constructed on land area of 138203 sq.ft., has not been denied by the authorities below. They have also not denied these material facts that the first building plan was sanctioned on 29.4.2003 vide Commencement Certificate No. 4269 issued by the PMC (Page No. 16 of the Paper Book). The other material facts like actual construction was executed as per the revised plan sanction on 20th March 2004 vide CC No. 2225 (page No. 17), the project consists of 396 flats and construction of these flats have been completed on 14.7.2006 as per the Completion Certificate issued by the PMC (Page Nos. 13 to 18 of paper book) are not in dispute. The authorities below have also not denied that built up area of each of these flats does not exceed 1500 sq.ft. It is also not in dispute that both the projects are entirely a residential project and there is no commercial area therein. Under the above circumstances, we are of the view that the assessee is very much entitled to the claimed deduction u/s. 80 IB (10) of the Act on the buildings A1 to A5 in "Atul Nagar" and buildings B1 to B6 in "Rahul Nisarg Co-operative Housing Society Ltd." The issue is therefore decided in favour of the assessee. We thus while setting aside the orders of the authorities below on the issue, direct the A.O to allow the claimed deduction u/s. 80IB(10) in question. The related grounds are accordingly allowed.

11. In result, appeal is allowed.

ITA No. 707/PN/2010

12. The first appellate order has been questioned by the assessee on the following grounds :

"(1) The CIT(A) erred in confirming the disallowance of deduction of Rs. 18,43,29,768/- u/s. 80IB(10) in respect of the housing project constructed by the assessee at Warje, Pune.

(2) The CIT(A) erred in holding that the assessee's project consisted of 16 buildings as per the sanctioned layout plan on the plot of land of about 20 acres and as all these buildings were not constructed before 31.3.2008, it did not satisfy the basic condition in section 80IB(10) and therefore, the assessee was not entitled to the deduction u/s. 80IB(10).

(3) The learned CIT(A) failed to appreciate that the 11 buildings numbered A1 to A5 and B1 and B6 constituted one single project and since the assessee had completed all these buildings by 31st March, 2008 and all other conditions of section 80IB(10) were satisfied, the profits in respect of the said 11 buildings were entitled to deduction u/s. 80IB(10).

(4) The learned CIT(A) was not justified in holding that -

(a) The condition for completion of the project within four years of the year in which the first building plan was passed applied to the assessee's case although the first building plan was passed before the introduction of this condition in section 80IB(10).

(b) The project consisted of 16 buildings and as the assessee had not completed the construction of all these buildings, the condition u/s 80IB(10) was not fulfilled.

(c) The concept of a 'project' as per section 80IB(10) was to be understood as per the sanctioned layout for the entire land and the condition in section 80IB(10) required the assessee to complete the entire construction within four years.

(d) The assessee's stand that 11 buildings namely A1 to A5 and B1 to B6 covering the land of more than one acre were completed and hence, these buildings together constituted a project and the deduction ought to have been allowed in respect of the profits from these buildings is not a correct stand.

(5) The learned CIT(A) failed to appreciate that -

(a) the first building plan of the assessee was passed before 1.4.2004 and hence, the condition for completion of the project within four years was not applicable in this case and the deduction u/s 80IB(10) had to be allowed to the assessee as per the provision of section 80IB(10) applicable on the date of passing of the first plan.

(b) The assessee had completed 11 buildings namely A1 to A5 and B1 to B6 by 30.7.2006 and therefore, as they were constructed on a portion of land occupying more than one acre, they constituted a project and the deduction u/s 80IB(10) was allowable in respect of the profits from these buildings.

(c) There was no definition of the term 'Project' in section 80IB(10) and the same could not be equated with the entire sanctioned layout.

(e) Even, the dept. in A.Y. 2005-06 had accepted that the said 11 buildings constituted one project for the purpose of section 80IB(10) and therefore, there was no reason to deny the deduction on the ground that the assessee had not completed all the 16 buildings as per the sanctioned plan."

13. Same facts are there during the year as the assessee has claimed deduction u/s. 80IB(10) on the buildings A1 to A 5 in 'Atul Nagar' and on buildings B1 to B6 in Rahul Nisarg Co-operative Housing Society Ltd. and the same has been denied by the authorities below on the basis that buildings except 'A' group and 'B' group were not completed by the prescribed date 31st March 2008 and thus an identical issues has been raised on similar facts in the appeal for the A.Y. 2006-07.

14. Following the decision taken on an identical issue under similar facts and circumstances of the case in the appeal for the A.Y. 2006-07 hereinabove, we hold that the assessee is very much entitled to the claimed deduction u/s. 80IB (10) of the Act during the year. We thus while setting aside orders of the authorities below in this regard direct the A.O to allow the claimed deduction. The related grounds and thus allowed.

15. Consequently, appeal is allowed.

16. In summary, both the appeals are allowed.

Rahul Construction C... v. Income Tax Officer, ...