Income Tax Appellate Tribunal - Mumbai
Vidhi Builders, Kalyan vs Department Of Income Tax on 25 January, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH "F",
MUMBAI
BEFORE SHRI N.V.VASUDEVAN(J.M) & SHRI R.K.PANDA (A.M)
ITA 2554/MUM/2011(A.Y.2007-08)
The Income Tax Officer, M/s. Vidhi Builders,
Ward 3(2), 2nd Floor, Rani Mansion, 3/11, Narmada Lokgram,
Murbad Road, Kalyan (W). Vs. Kalyan (E),\
(Appellant) PAN:AAEFV 6246P
(Respondent)
Appellant by : Shri V.V.Shastri
Respondent by : Shri Satendra Pandey
Date of hearing : 25/01/2012
Date of pronouncement : 31/01/2012
ORDER
PER N.V.VASUDEVAN, J.M:
This is an appeal by the revenue against the order dated 31/12/2010 of CIT(A)-1, Thane relating to A.Y 2007-08. Ground of appeal raised by the revenue reads as follows:
"On the facts of the case and in law, the ld. CIT(A) has erred in deleting an addition of Rs.33,45,105/- made on account of denial of assessee's claim of deduction u/s. 80IB(10) of the I.T. Act, 1961, without appreciating the findings of the AO regarding violation of conditions prescribed for claim of deduction u/s. 80IB(10) of the I.T. Act.
2. The assessee is a partnership firm engaged in the business of Civil Construction. The assessee had under taken construction of building projects at Village Gouripada, Taluka Kalyan on Plot Bearing Survey No.22 & 23 H No.1(PT). On this land the assessee constructed two projects namely Amurt Dham comprising Building No. 9&10 and Vidhi Complex Comprising Building No.11 to 14. In respect of the project Amurt Dham the assessee did 2 ITA 2554/MUM/2011(A.Y.2007-08) not claim deduction under section 80 IB(10) of the Income Tax Act 1961 (the Act). For the Project Vidhi Complex the assessee claimed deduction under section 80 IB(10) of the Act. The AO denied the deduction on 3 counts , viz,
(i) the plot area was less than one acre at 3461.68 sq mtr as against 4746.26 sq mtr as claimed by the assessee, (ii) the project comprises commercial area exceeding 2000 sq ft and (iii) the project failed to be completed before deadline date of 31/03/08. On the first count, the AO's finding was that, after surrendering the plot for DP road, the net plot area remained with the appellant stood at 3461.68 sq. mtr which was less than one acre and , therefore, the AO held the project to be failed to satisfy one of the conditions. On the second count, the AO found the project to have 778.95 sq mtr of commercial area thereby exceeding the permissible commercial area of 2000 sq ft and , therefore, the AO came to the conclusion that, the appellant assessee failed to qualify for the benefit of deduction. On the third count, the AO found the plan was approved before 0 1/04/04 and hence the project was required to be completed before 31/3/08, whereas the local authority have issued part completion certificate as on 31/3/08 and hence the AO held the project to be incomplete, thereby the project failed to qualify for the claim of deduction.
3. On appeal by the assessee the CIT(A) held that in calculating the plot area on which the project is constructed at D.P. Road cannot be excluded. With regard to the completion of the project on or before 31/3/2008 the CIT(A) found that the completion certificate issued by KDMC clearly showed that building No.9 to 14 were completed and OC given. With regard to the contention that the commercial area in the project was more than 2000 sq. ft. the CIT(A) held that as far as project Vidhi is concerned the project for 3 ITA 2554/MUM/2011(A.Y.2007-08) which deduction under section 80 IB was claimed the commercial area was less than 2000 sq.ft.
4. Aggrieved by the order of the CIT(A) the revenue has preferred the present appeal before the Tribunal.
5. We have heard the rival submission. At the time of hearing it was accepted by both the parties that on very same project Vidhi the assessee had claimed deduction under section 80IB of the Act in A.Y2005-06 and 2006-07 and this Tribunal in ITA No.1212/Mum/09 & ITA No.1449/Mum/10 respectively upheld the claim of the assessee.
6. On the question of commercial area in the project being more than 2000 sq.ft., the Tribunal held as follows:
"3. One of the condition to be fulfilled by the Assessee for claiming deduction u/s.80-IB(10) of the Act is that under clause (d) of Sec.80- IB(10) of the Act, the built-up area of the shops and other commercial establishments included in the housing project does not exceed five per cent of the aggregate built-up area of the housing project or two thousand square feet, whichever is less. The objection of the AO was that in the Project Vidhi Complex there was commercial area and since it was not a building project in the sense consisting of only buildings for residential purposes, the deduction under section 80IB(10) was not to be allowed. On this objection it is seen from the submissions made by the Assessee before the CIT(A) that as far as the Project Vidhi complex is concerned, there was no commercial area whatsoever. Eighteen shops admeasuring in all 2700 sq. ft. was part of Amurt Dham project for which the Assessee did not claim any deduction u/s.80-IB(10) of the Act. It was the further submission of the Assessee that existence of shops in certain buildings of the same sanctioned layout but not forming part of the housing project for which deduction u/s.80-IB(10) of the Act is claimed will not in any manner vitiate the claim for deduction u/s.80-IB(10) of the Act. In this regard the Assessee relied on the decision of the Hon'ble Mumbai Bench of the Tribunal in the case of ITAT Mumbai in the case of Saroj Sales Organization Vs. ITO 115 TTJ 485 (mum). The case of Saroj Sales Organization (supra) was a case of a 4 ITA 2554/MUM/2011(A.Y.2007-08) Builder where there were two projects being constructed by name Nisarg and Breezy Corner. For AY 05-06, The Assessee claimed deduction u/s.80-IB(10) of the Act on the profits of Nisarg Project. The AO treated both the projects as one project and found that in the project Breezy corner the built up area of some of flats were more than 1000 sq.ft. and he therefore held that the Assessee was not entitled to deduction u/s.80-IB(10) of the Act. The Tribunal held that the two projects were to be treated as different projects for applying the tests laid down in Sec.80-IB(10)(d) of the Act.
4. On this aspect there is no specific finding rendered by the CIT(A). In this regard a copy of sanctioned plan was filed before us. The contention of the ld. Counsel for the assessee that as far as the Project Vidhi Complex is concerned, there was no commercial area whatsoever, could not be verified from the copy of the plan as produced before us. Since the CIT(A) has also not given any finding in this regard it would be appropriate to set aside this issue to the AO for fresh consideration. The AO will verify the sanctioned plan to find out if the Project Vidhi Complex has any commercial area. The fact that commercial area in the form of shops exist in the buildings Amrut Dham which is part of the same sanctioned layout, but not forming part of the housing project Vidhi Complex, for which deduction u/s.80-IB(10) of the Act is claimed will not in any manner vitiate the claim for deduction u/s.80-IB(10) of the Act. In this regard the decision of the Hon'ble Mumbai Bench of the Tribunal in the case of ITAT Mumbai in the case of Saroj Sales Organization Vs. ITO 115 TTJ 485 (mum) supports the view that the existence of commercial area for the project for which deduction u/s.80-IB(10) of the Act is claimed alone should be seen though commercial area is built in the same sanctioned layout but in a different project. On verification, if commercial area is found to exist in the project Vidhi Complext, the AO will also verify if such area is within the permitted limits as laid down in Sec.80-IB(10) of the Act. The AO is accordingly to directed to verify the facts in this regard and while considering the claim for deduction u/s.80-IB(10) of the Act."
7. With regard to the total area of the plot on which the construction was completed the Tribunal hold as follows:
"5. The next issue is with regard to the total area of the plot on which the project was constructed. One of the condition for allowing deduction u/s.80-IB(10) of the Act is that the project is on the size of a plot of land which has a minimum area of one acre. According to the AO the plot area after reducing the area consumed for D.P.Road was only 5 ITA 2554/MUM/2011(A.Y.2007-08) 3461.68 sq. meters which was less than one Acre. According to the assessee the plot area is 4746.26 sq.mtrs including the area given for D.P.Road. On this issue the CIT(A) held as follows:-
"5.2 Ground of appeal No.2: This ground of appeal is related to the disallowance of the claim of deduction u/s. 80 IB(10) at Rs. 34,57,156/- in respect of the project called 'Vidhi complex'. As stated in the assessment order, the appellant was engaged in the construction of two buildings known as 'Amurt Dham' and 'Vidhi Complex'. As per the appellant, 'Vidhi Complex' was a project, which was 80 IB(10) compliant. The project 'Amurt Dham', was considered to be 80 IB(10) non compliant. The appellant had, therefore claimed deduction u/s. 80 IB (10) only in respect of 'Vidhi Complex'. The project 'Vidhi Complex' was undoubtedly a 'housing project' of the appellant, which was being constructed on a part of land admeasuring 4746.26 sq. mtrs inclusive of DP road. After excluding the area occupied by the DP road, the net area of the plot was 3461.68 sq. mtrs only. This fact was confirmed by the partner of the firm as well as the architect, Mr. R.L. Modak. This clearly means that the project was being constructed on a plot of land which was less than one acre in area. The mandatory condition for a project to become eligible for deduction under section 80IB(10) is that the project should be constructed on a plot which is not less than one acre in area. Section 80 IB(10) clearly stipulates that the 'housing project' should be on the size of a plot which has a minimum area of one acre. The appellant has clearly violated the condition laid down in clause 9b) of sub section (10) of section 80 IB. Further, the building project was not sanctioned by the Kalyan Dombivili Municipal Corporation (KDMC). In view of these violations of the mandatory conditions laid down in section 80 IB(10), the project 'Vidhi Complex' is not eligible to get deduction u/s. 80 IB(10). The disallowance of claim of deduction u/s. 80 IB(10) is, therefore, confirmed and the order of the AO is upheld on this issue. The ground of appeal No.2 is, therefore, dismissed."
6. Thus factually it is not in dispute that the project 'Vidhi Complex' was constructed on a part of land admeasuring 4746.26 sq. mtrs inclusive of DP road. After excluding the area occupied by the DP road, the net area of the plot was 3461.68 sq. mtrs only. The question is whether the area given for the purpose of forming DP road has to be excluded or included for the purpose of calculating the size of the plot 6 ITA 2554/MUM/2011(A.Y.2007-08) on which the housing project has been constructed. On this issue we find that the Hon'ble Mumbai ITAT in the case of Umiya Enterprises vs. ITO in ITA No.2750/M/09 for A.Y 2004-05 has considered this issue. In that case the dispute was whether the area for road set back, recreation open space and internal road set back is to be excluded for the purpose of calculating the size of plot area on which the housing project is constructed. The Tribunal held as follows:
"So far as the precise point raised by the CIT(A) is concerned, it is seen from page 66, which is a copy of the communication dated 20.09.2003 sent by Kalyan-Dombivli Mahanagar Palika that it mentions the size of the plot as 4600 sq.metres only. The communication dated 29.6.2000 (page 63 of the paper book) also refers to the area of the plot as 4600 sq.metres. The assessee has also filed at page 68 of the paper book an annexure to the communication issued by the Kalyan-Dombivli Mahanagar Palika dated 20.09.2003, referred to earlier. This annexure is a map showing the details of the site plans, plan of the residential units to be built by the assessee etc. It also contains an area statement which shows that the area of the plot is 4600 sq. metres. It further shows that there is a deduction 656.75 sq. metres for road set back. This deduction is thereafter set off by an addition of equivalent area allowed by MNP. The net area of the plot after the deduction of the area for road set back has been shown at 3943.25 sq. metres. Thereafter there is a deduction of 591.49 sq. metres for recreation open space and 411 sq. metres for internal road . The net plot area is then shown at 2940.76 sq. metres. The area of 656.75 sq. metres, which was earlier deducted for road set back, is added and the total area plot is shown at 3597.51 sq. metres. It will be seen that the total plot area has been worked out by the MNP at 3597.51 sq.metres only after deducting 591.49 sq. metres for recreation open space. The recreation open space is however part of the plot and though for the purpose of municipal regulations, a portion of the plot has to be reserved as a recreation area but for the purpose of clause (b) of section 80IB(10), the recreation area has also to be considered as part of the plot only. There is no condition in the clause that recreation area has to be excluded while examining whether the plot is of the size of one acre or less. If the recreation area of 591.49 sq. metres is added to the total plot area of 3597.91 sq. metres, it gives an area of 4189 sq. metres which is the size of the plot. The total plot area has been arrived at by MNP 3597.51 only for the purpose of calculating the permissible FSI. The permissible FSI as per column 9 of the area statement is one, which means that the assessee can build 3597.91 sq.metres in the said plot. However, for the purpose of clause (b) of section 80IB(10), the plot area has been taken at 4189 sq. metres, if not at 4600 sq. metres, even on
7 ITA 2554/MUM/2011(A.Y.2007-08) this basis, the size of the plot is more than one acre. In our opinion, the CIT(A) committed an error in simply excluding 656.75 sq.metres from the area of 4600 sq.metres without appreciating that the exclusion is only for the purpose of D.P. Road which does not reduce the size of the plot as a whole. We are therefore satisfied that there is no violation of the conditions prescribed by clause(b)."
7. In view of the decision of the Tribunal referred above we are of the view that the order of the CIT(A) on this issue has to be reversed. We direct accordingly. The CIT(A) has also made passive remark that the project has not been sanctioned by the KDMC. This is not correct and the required approval had been filed before us and had also been filed before the AO and the AO has also made reference to the same in his order. We therefore, hold that the assessee would be entitled to deduction under section 10 IB(10) of the Act subject to the verification of the existence of commercial area in the project Vidhi Complex. The fact that the commercial complex exists in the Amurt Dham Project would not be relevant for denying the claiming of the assessee for deduction under section 80 IB(10) of the Act for the Project Vidhi Complex. With the aforesaid observation we set aside the order of the CIT(A) and direct the AO to allow the claim for deduction under section 80 IB(10) of the Act after verifying the commercial area in the project Vidhi complex. For statistical purposes appeal of the assessee is treated as allowed."
8. As far as completion of the construction is concerned, the certificate of KDMC dated 31/3/2008 is clear that Building No.9 to 14 were completed and occupation certificate was given. The AO's stand that project was only partly completed cannot therefore, be sustained. The deduction under section 80 IB(10) was claimed only in respect of the project Vidhi Complex which comprise of building No.11 to 14. As far as this project is concerned there could be no doubt that the construction was completed on 31/3/2008.
8 ITA 2554/MUM/2011(A.Y.2007-08)
9. For the reasons given above we upheld the order of the CIT(A) and dismiss the appeal of the revenue.
10. In the result, the appeal of the revenue is dismissed.
Order pronounced in the open court on the 31st day of Jan. 2012.
Sd/- Sd/- (R.K.PANDA ) (N.V.VASUDEVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated. 31st Jan.2012
Copy to: 1. The Appellant 2. The Respondent 3. The CIT City -concerned
4. The CIT(A)- concerned 5. The D.R"F" Bench.
(True copy) By Order
Asst. Registrar, ITAT, Mumbai Benches
MUMBAI.
Vm.