ACIT, Circle-12, Pune v. Om Associates
[Citation -2019-LL-0919-129]

Citation 2019-LL-0919-129
Appellant Name ACIT, Circle-12, Pune
Respondent Name Om Associates
Court ITAT-Pune
Relevant Act Income-tax
Date of Order 19/09/2019
Assessment Year 2009-10
Judgment View Judgment
Keyword Tags proportionate deduction • completion certificate • claim of deduction • housing project • pro-rata basis • time limit
Bot Summary: The assessee claimed 2 ITA Nos.196, 197 198/PUN/2018 deduction u/s 80IB(10) of the Act. During the assessment proceedings, the Assessing Officer denied the said claim of deduction u/s 80IB(10) of the Act distinguishing the Hon ble Bombay High Court s judgement in the case of Bramha Associates, 333 ITR 289. Relying on various binding decisions on this issue relating to pro-rata claim of deduction, the CIT(A) granted relief to the assessee and directed the Assessing Officer to grant deduction u/s 80IB(10) of the Act on pro-rata basis. In Ground No.5, the appellant has raised an alternate plea claiming that the deduction u/s. In Ground No.2 the appellant has raised an alternate plea claiming that the deduction u/s. 80IB(10) have been complied with, the assessee is eligible to claim deduction u/s. Respectfully following the order of Hon'ble Jurisdictional High Court and IT AT, I hold that the appellant is eligible to claim deduction u/s 80IB(10) in respect of 108 flats completed before 31/03/2012, on proportionate basis.


IN INCOME TAX APPELLATE TRIBUNAL BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM ITA Nos.196, 197 & 198/PUN/2018 Assessment Years : 2009-10, 2013-14 & 2014-15 ACIT, Circle-12, Pune. Appellant V/s. Om Associates, 383, Shaniwar Peth, Pune-411030. PAN : AABFO6002D Respondent Revenue by : Shri N. Ashok Babu Assessee by : Shri Neelesh Khandelwal Date of Hearing : 15.07.2019 Date of Pronouncement : 19.09.2019 ORDER PER D. KARUNAKARA RAO, AM: There are three appeals under consideration filed by Revenue. All three appeals are against three separate orders of CIT(A)-8, Pune commonly dated 31.10.2017 for Assessment Years 2009-10, 2013-14 & 2014-15 respectively. 2. solitary issue involved in all three appeals of Revenue are identical and it relates to direction of CIT(A) to Assessing Officer in favour of granting deduction u/s 80IB(10) of Act on pro- rata basis. 3. Before us, at outset, ld. Counsel for assessee submitted that assessee is builder and promoter. assessee claimed 2 ITA Nos.196, 197 & 198/PUN/2018 deduction u/s 80IB(10) of Act. However, during assessment proceedings, Assessing Officer denied said claim of deduction u/s 80IB(10) of Act distinguishing Hon ble Bombay High Court s judgement in case of Bramha Associates, 333 ITR 289. 4. Further, in first appellate proceedings, CIT(A) examined this issue and analyzed decision taken by predecessor in assessee s own case for later assessment years 2013-14 and 2014- 15 which are also subject-matter of adjudication before us. Relying on various binding decisions on this issue relating to pro-rata claim of deduction, CIT(A) granted relief to assessee and directed Assessing Officer to grant deduction u/s 80IB(10) of Act on pro-rata basis. In process, CIT(A) relied heavily on Bombay High Court s judgement in case of CIT vs. Vandana Properties, 206 taxmann.com 584 (Bom) and many other decisions of Tribunal such as Belvalkar Housing Schemes vide ITA No.524/PUN/2013 dated 28.08.2015. 5. On other hand, ld. DR for Revenue relied heavily on order of Assessing Officer. 6. On hearing both sides on this limited issue of allowability of pro-rata deduction u/s 80IB(10) of Act, we proceed to extract relevant para 8 and 8.1 of order of CIT(A) for assessment year 2009-10 and same are extracted hereunder :- 8. In Ground No.5, appellant has raised alternate plea claiming that deduction u/s. 80IB (10) be allowed on pro-rata basis in respect of 3 ITA Nos.196, 197 & 198/PUN/2018 completed wings B, C & D. identical issue has been dealt by me in A.Y. 2013-14 & 2014-15 in appellant s own case in appeal Nos. 302/2017-18 and 303/2017-18 respectively, wherein it has been held that appellant be allowed deduction u/s. 8oIB(10) on pro-rata basis. My findings in A.Y. 2013-14, vide order dated 31/10/2017, are reproduced below:- 10. In Ground No.2 appellant has raised alternate plea claiming that deduction u/s. 80IB (10) be allowed on pro-rata basis in respect of completed wings B, C & D. AO has disallowed this claim of appellant on basis of Hon'ble Bombay High Court's order in case of Brahma Associates (supra). However case of Brahma associates (supra) is different on facts. In that case matter under consideration of Hon'ble Court was controversy relating to admissibility of deduction u/s 80IB(10) on housing project comprising of residential and commercial units, which had been decided in favour of assessee by holding that entire project was entitled to deduction u/s 80IB(10) irrespective of fact that out of total number of 17 buildings comprised in project, 2 building were commercial and other 15 were residential units. Hence reliance placed by AO is misplaced. On other hand appellant has relied upon case of CIT Vs Vandana properties, 206 Taxmann 584 (Bom), wherein Hon'ble Bombay High Court has held that housing project need not be project and group of buildings, but one single building could constitute separate housing project and assessee could claim deduction u/s 801B (10) for said separate housing project. It is further seen that issue of allowing deduction u/s. 80IB(10) is also covered by decision of Hon'ble Jurisdictional ITAT, Pune in case of Belvalkar Housing Schemes (ITA No. 524/ PN 13), dated 28/08/2015, wherein Hon'ble Bench has held that where part of project has been completed, and all conditions as laid down u/s 80IB(10) have been complied with, assessee is eligible to claim deduction u/s 80IB(10) on completed part on pro-rata basis. relevant excerpts from order of Hon'ble ITAT in case of Belvalkar Housing Schemes (Supra) are reproduced below:- 7. Another reason for disallowing deduction u/s.80IB(10) is, that entire project was not completed within specified time limit. project was approved by local authority on 16-08-2004. As per provisions of section 80IB(10)(a)(iii), housing project should be completed within 4 years from end of financial year in which housing project is approved i.e. by 31-03-2009. Originally, project was approved for 30 flats. Subsequently, 6 more flats were added vide revised layout plan. Undisputedly, 30 flats (10 flats in building and 20 flats in building B), were completed within stipulated time limit of 4 years and completion certificate in respect of those 30 flats were received by assessee from PMC on 08-05-2008. In respect of remaining 6 flats i.e. 2 flats in building and 4 flats in building B, completion certificate was obtained by assessee from PMC on 09- 08-2011 i.e. after expiry of 4 years from end of financial year in which housing 4 ITA Nos.196, 197 & 198/PUN/2018 project was originally approved. It has been repeatedly held by various Hon'ble High Courts and Tribunal, that where part of project has been completed and all conditions as laid down u/s. 80IB(10) have been complied with, assessee is eligible to claim deduction u/s. 801B(10) on completed part of project on pro-rata basis. For this proposition reliance can be placed on decisions of Hon'ble Madras High Court in case of CIT Vs. ArunExcello Foundations (P.) Ltd.; 86 DTR (Mad) 99 and Viswas Promoters Private Limited Vs. ACIT; 81 DTR (Mad) 68 and decision 8 ITA No. 524/PN/2013, A.Y. 2009-10 of Pune Bench of Tribunal in case of M/s. Rohan Homes Vs. Asstt. CIT in ITA No. 423/PN/2011 for assessment year 2007-08 decided on 31-01-2013. Thus, we accept alternate plea of assessee and hold that assessee is eligible to claim deduction on 30 flats on proportionate basis. 11. In case of appellant also, it is undisputed that buildings B, C & D were completed within time frame stipulated u/s. 80IB(10). Hence, rationale of above judgments is squarely applicable to facts of appellant's case. Respectfully following order of Hon'ble Jurisdictional High Court and IT AT, I hold that appellant is eligible to claim deduction u/s 80IB(10) in respect of 108 flats completed before 31/03/2012, on proportionate basis. I also find that identical plea taken by appellant in its own cases in A. Y. 2011-12 and 2012-13 has been duly considered by Ld. CIT (A)-5, Pune, while dealing with appeals of those two years. Ld. CIT (A)-5, Pune, vide order dated 26/02/2016 and 24/10/2016 in Appeal Nos. 310/2014-15 & 130/2015-16 respectively for A.Y. 2011-12 & 2012-13, vide F. No. PN/CIT (A)- 5/Addl.CIT, R-1, Pune has decided issue in favour of appellant. AO is accordingly directed to work out proportionate deduction u/s 80IB(10) and allow that to appellant. Ground No. 2 is allowed." 8.1. As facts in year under consideration are same, I see no reason to differ from my decision in A.Y. 2013-14 as well as A.Y. 2014-15. Following my order in A.Y. .. IB(10) on pro-rata basis. Accordingly, AO is directed to work out proportionate deduction u/s.80IB(10), and allow that to appellant. Ground No.5 is allowed. 7. Considering above findings of CIT(A) on this issue and also considering settled nature of this issue at level of Jurisdictional High Court in case of Vandana Properties (supra) in favour of granting of pro-rata deduction u/s 80IB(10) of Act in favour of assessee, we are of opinion that common issues raised by 5 ITA Nos.196, 197 & 198/PUN/2018 Revenue in all three appeals are dismissed. Thus, all grounds raised by Revenue in all three appeals are dismissed. 8. In result, all three appeals of Revenue are dismissed. Order pronounced on 19th day of September, 2019. Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER Pune; Dated : 19th September, 2019. Sujeet Copy of Order forwarded to : 1. Appellant. 2. Respondent. 3. CIT(A)-8, Pune. 4. Pr.CCIT, Pune. 5. DR, ITAT, Bench, Pune. 6. Guard File. BY ORDER, True Copy Senior Private Secretary , ITAT, Pune. ACIT, Circle-12, Pune v. Om Associate
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