IN INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI C.N. PRASAD, JUDICIAL MEMBER /I.TA No.7372/Mum/2014 ( [ [ / Assessment Year: 2010-11 ITO, Wd 2(2), / M/s. Swastik Builders, Thane, Room No. 26, G-6, A-Wing, Vs. 6 t h Floor, Ashar I.T. Park, Hamermal Tower, Wagle Industrial Estate, Station Road, Road No. 16Z, Bhayander (W)-401 101 Thane (W)-400 604 . / . /PAN/GIR No.AALFM 0926G ( /Appellant) .. ( / Respondent) / Appellant by: Shri N. Satya Moorthy /Respondent by: Shri Aditya Ajgaokar / Date of Hearing :12.07.2016 /Date of Pronouncement :23.09.2016 / O R D E R PER C.N. PRASAD, JM: This appeal is filed by Revenue against order of Ld. CIT(A)-II, Mumbai dated 04.09.2014 pertaining to assessment year 2010-11. 2. Revenue has raised following grounds: 1. "Whether on facts and in circumstances of case and in law, Ld. CIT{A) has erred in deleting amount 2 ITA No. 7372/M/2014 of Rs.1,07, 66,186/- being disallowance made on account of wrong claim of deduction u/s 80IB(10) of I.T Act, 1961". 2. "Whether on facts and in circumstances of case and in law, Ld. CIT{A) has erred in allowing deduction u/s 80IB(10) even when area of plot on which housing project was developed is only 3932 sq. mtrs which is less than 1 acre. As per provisions of Act, area of plot should be at least 1 acre in area. 3. "Whether on facts and in circumstances of case and in law, Ld. CIT{A) Thane erred in allowing claim u/s 80IB(10) even though commercial areas of 2406.70 sq. ft. in housing project exceeded 5% or 2000 sq. ft. of built-up area whichever is less. This is violation of criteria specified under provisions of Act". 4. "Whether on facts and in circumstances of case and in law, Ld. CIT{A) erred in allowing deduction U/S. 80IB(10) even when project was not completed before 31/03/2008 as per provisions of section". 5. "Whether on facts and in circumstances of case and in law Ld. CIT{A) erred in allowing deduction u/s 80IB(10) despite fact that assessee himself has admitted in his statement recorded under oath during course of survey that he is not eligible for deduction u/s 80IB(10) of Act". 3. At outset, Ld. Counsel for assessee submits that issue in appeal of Revenue has been decided in assessee s own case for immediately preceding Assessment Years 2009-10 and 2008-09 in ITA Nos. 4838 & 4837/M/2012 dated 21.12.2015 wherein Co-ordinate Bench dismissed appeal of Revenue by affirming order of Ld. CIT(A) in allowing assessee s claim of deduction u/s. 80IB(10). Copy of order is placed on record. Ld. Counsel for assessee further submits that ground No. 2 of grounds of appeal of Revenue regarding area of plot has 3 ITA No. 7372/M/2014 been dealt with by Co-ordinate Bench in para-12 of order. Ground NO. 3 raised by Revenue regarding violation of criteria specified under provisions of Act has been dealt with in para-13 of Tribunal s order. With respect to ground No. 4 and ground No. 5 raised by Revenue in its appeal, Ld. Counsel for assessee submits that both these grounds have been dealt with by Tribunal in para-14 & 15 of Tribunal s order respectively. Therefore, he pleads that order of Co-ordinate Bench may be followed for this Assessment Year also. 4. Ld. Departmental Representative placed reliance on order of Assessing Officer. 5. We have heard rival submissions, perused orders of authorities below and also gone through decision of Co- ordinate Bench in assessee s own case for earlier Assessment Years and we find that issue is squarely covered by said decision wherein Co-ordinate Bench exhaustively dealt with issue and uphold order of Ld. CIT(A) in allowing claim of assessee for deduction u/s. 80IB(10) of Act by observing as under: 11.We have considered submissions of parties and perused material available on record. It is evident from facts on record Assessing Officer has disallowed assessee s claim of deduction under section 80IB(10) for following three reasons: (i) Area of plot is less than one acre; (ii) Commercial area is more than 5% of built up area; and 4 ITA No. 7372/M/2014 (iii) Assessee has not obtained completion st certificate prior to 31 March 2008. 12. As far as first objection of Assessing Officer that land area of project is less than one acre, it is apparent and obvious that Assessing Officer has calculated area of land at 3,932 sq.mtrs., after excluding road set back of 342 sq.mtrs. In our view, aforesaid approach of Assessing Officer is totally unacceptable. As per records, total area of project, as per revised approved plan is 4460 sq.mtrs including area for road set back. Therefore, Assessing Officer is factually incorrect in concluding that plot is less than one acre. Moreover, assessee s contention that additional FSI of 342 sq.mtrs. if taken into consideration would make plot area 4,274 sq.mtrs., which is more than one acre appears to be correct. As Department has failed to controvert aforesaid factual position with any documentary evidence, we are unable to accept view of Assessing Officer, therefore, first objection of Assessing Officer that area of plot is less than one acre is not acceptable. 13. As far as second allegation of Department that commercial area is less than 5% of total built up area, same is also found to be factually incorrect in view of documentary evidence submitted by assessee not only before Departmental Authorities but at this stage also. It is not disputed that in course of original assessment proceedings for impugned assessment year, Assessing Officer has specifically examined this issue and after verifying approved plan and revised approved plan, has found that commercial area is less than 5% of total built up area. same view was again expressed by Assessing Officer in assessment order passed under section 143(3) of Act for assessment year 2006 07. Department has not controverted aforesaid factual position by bringing any material on record. In view of aforesaid, we do not find any infirmity in order of learned Commissioner (Appeals) in accepting assessee s claim of deduction under section 5 ITA No. 7372/M/2014 80IB(10) as assessee has factually proved that commercial area is less than 5% of total area of plot. 14. As far as allegation of Department that partner of assessee firm has accepted that it is not eligible for deduction under section 80IB(10) on going through statement of partner, recorded on 31st July 2008, copy of which was submitted before us, we do not find allegation of Departmental Authorities to be correct. On contrary, observation of learned Commissioner (Appeals) in Para 11.8 of order passed for assessment year 2008 09, is correct as partner has only stated that claim of deduction under section 80IB(10) is not available on addition income offered by firm. 15. As far as last allegation of Department that completion certificate obtained by assessee is beyond 31st March 2008, we are of view that deduction under section 80IB(10) cannot be denied to assessee on such purely technical objection. Moreover, on perusal of completion certificate issued by Meera Bhyander Municipal Corporation, which is submitted in paper book with English translated version, it is very much clear that said certificate clearly mentions that assessee has applied for completion certificate not only before 31st March 2007 but project was complete in all respect by 29th March 2008. In this factual background, merely because certificates were issued by municipal authorities in May 2008, would not deprive assessee form enjoying deduction under section 80IB(10). Moreover, as rightly submitted by learned counsel, principle laid down in judicial precedent if taken note of make it clear that date of grant of completion certificate by municipal authorities would revert back to date of application by assessee. If assessee had applied before due date and completion certificate is issued by competent authority without any clarification then project should be deemed to have been completed before due date. In facts of present case, there is no dispute or doubt that municipal authorities have accepted that project was completed before 31st March 20008. Hence, in our view, assessee s claim of deduction under section 6 ITA No. 7372/M/2014 80IB(10), cannot be denied on ground that it has failed to obtained certificate from competent authority before due date i.e., 31st March 2008. Therefore, on over all consideration of facts and material on record, we are of firm view that learned Commissioner (Appeals) was justified in allowing assessee s claim of deduction under section 80IB(10). In view of aforesaid, we uphold order of learned Commissioner (Appeals) by dismissing ground raised by Department for assessment year 2005 06. 16. facts and issue being similar in ITA no.4837/Mum./2012, for assessment year 2008 09 and ITA no.4838/Mum./2012 for assessment year 2009 10, following our order of assessment year 2005 06, we uphold order of learned Commissioner (Appeals) by dismissing grounds raised by Department . Respectfully following said decision, we uphold order of Ld. CIT(A) in allowing claim of deduction u/s. 80IB(10) for Assessment Year 2010-11 also. 6. In result, appeal filed by Revenue is dismissed. Order pronounced in open court on 23rd September, 2016. Sd/- Sd/- (RAJENDRA) (C.N. PRASAD ) / ACCOUNTANT MEMBER /JUDICIAL MEMBER Mumbai; Dated 23rd September, 2016 . . ./ Rj , Sr. PS 7 ITA No. 7372/M/2014 /Copy of Order forwarded to : 1. / Appellant 2. / Respondent. 3. ( ) / CIT(A)- 4. / CIT 5. , , / DR, ITAT, Mumbai 6. [ / Guard file. / BY ORDER, //True Copy// / (Dy./Asstt. Registrar) , / ITAT, Mumbai ITO, Wd 2(2), Thane (W) v. M/s. Swastik Builder