Sun Enterprises,, Baroda vs Assessee

M/s. Sun Enterprise The Assistant Commissioner of R.V. Desai Road, Vs IncomeTax,Circle-5, Race Nr. Krishna Tower, Course, Baroda. Navapura, Baroda.

PAN AAXFS 3471Q

अपीलाथ / (Appellant) तयथ / ् (Respondent)

By Assessee : Mr. Sakar Sharma.

By Revenue : Mr. Nimesh Yadav, Sr.D.R.

ु वाई क तार ख/ Date सन of Hearing : 04 /06/2015

घोषणा क तार ख / Date of Pronouncement: 19/06/2015

आदे श/O RDER

PER N.S. SAINI, ACCOUNTANT MEMBER:

ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

2 These are the appeals filed by the assessee against the orders of the CIT (A)-V, Baroda dated 16-10-2009 for A.Y. 2006-07, dated 24- 12-2012 for A.Y. 2007-08, dated 24-12-2012 for A.Y. 2008-09.

2. In all the appeals common ground taken is that the CIT (A) erred in confirming the rejection of the claim of an assessee u/s. 80IB(10) of the Income Tax Act on the ground that the assessee failed to satisfy the conditions laid in the Act.

3. The brief facts of the case are that during the course of assessment proceedings it was submitted that assessee is a developer of "Sun Bungalows" scheme on the land measuring 5386.619 sq. mtr. was belonging to Faridbhai Abdulbhai Mohibi and others which was acquired and in the possession of assessee by entering into agreement dated 26-7-2002. The total area under construction for residential units was more than 1 acre and assessee offered the profit on sale of commercial portion for taxation and claimed benefit u/s. 80IB(10) for the said residential units. It was also stated that Section 80IB(10) was amended by Finance Act,2004 w.e.f. 1-4-2005 and inserted new sub clause (d) in the said section. The said amendment was applicable to the cases who have obtained permission from local authority after 1-4- 2005 and same was not applicable to cases where the permissions were obtained prior to 1-4-2005.

4. The Assessing Officer disallowed the claim u/s. 80IB (10) of Rs.29,59,155/- for A.Y. 2006-07,Rs.22,26,649/- for A.Y. 2007-08, and Rs.64,28,640/- for A.Y. 2008-09 for the following reasons:-

ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

3 i) that the project included construction of commercial complex measuring 836.04 sq.mtr which was more than 5% of the aggregate built up area. Thus the firm has violated the prescribed condition in Clause (d) of Sec. 80IB(10).

ii) That the project was approved by a single approval letter and that the assessee will have to satisfy all the conditions from year to year irrespective of the fact that the commercial portion had been sold in earlier years. The entire project is to be viewed as a single project and the conditions have to be applied on the entire project and Clause (d) of the section 80 (10) has not been satisfied.

iii) The land is not in the name of the assessee firm and that ownership of lands is an essential element which carries with it the right to develop the land and build housing projects thereon. According to A.O. the developer should first develop the land and then take necessary permission to construct.

iv) Assessee in the instant case has acted merely as an agent for collection of the land consideration on behalf of the land owner and a contractor for the construction of the house on behalf of the unit holders.

v) The approval of the project is not in the name of the

assessee firm.

5. Against the aforesaid disallowance assessee filed appeal before the CIT (A).

6. Before the CIT (A) assessee reiterated the arguments made before the A.O. and drawn attention to the decision of Special Bench of ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

4 the Tribunal in the case of Brahma Associates vs. JCIT 122 TTJ 433 (SB) (Pune).

7. On appeal the CIT (A) confirmed the disallowance made by A.O.

8. Before us, Authorised Representative of the assessee submitted that in A.Y. 2005-06 the claim for deduction of the assessee under sec. 80-IB (10) was disallowed by the Assessing Officer and the same was allowed by the CIT (A). The Revenue carried out the matter in appeal before the Tribunal and the Tribunal restored the matter back to the file of the CIT (A) to readjudicate the issue considering the decision of the Special Bench of the Tribunal in the case of M/s. Brahma Associates vs. JCIT 119 ITD 255 and the provisions of Sec. 80-IB (10) of the Act.

9. In the set aside proceedings the CIT (A) passed order on 4-8- 2014 allowing the claim for deduction u/s. 80 IB (10) to the assessee for an amount of Rs.6,15,848/-. It was the submission of the Authorised Representative of the assessee that the Revenue has not filed any further appeal to the Tribunal and therefore having allowed the claim for deduction u/s. 80-IB (10) was for the initial Assessment Year 2005- 06 the Revenue turned and disallowed the claim on the same of facts.

10. In rebuttal, the Departmental Representative submitted that as the tax effect in the appeal was below Rs. 3 lakh and therefore, the Revenue could not have filed appeal before the Tribunal against the order of the CIT (A). Therefore, the argument of the assessee that the Revenue has accepted the claim in A.Y. 2005-06, therefore no disallowance u/s. 80 IB (10) can be made for subsequent years.

11. We have heard the rival submissions perused the orders of the lower authorities and material available on record. In the instant case ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

5 the CIT (A) has held that the assessee is not eligible for deduction u/s. 80-IB (10) by observing as under:-

"5. Coming to the second argument regarding applicability of Clause (d) to the facts of the appellant's case, it is noted that admittedly the commercial area is more than 5% of the aggregate built up area.

5.1. I am not in agreement with the appellant that the amended provision of Section 80IB (10) is applicable in respect of the cases where the approval was obtained after 1-4-2005. For the sake of clarity the amended section 80IB (10) is reproduced below:

"[(10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2007 by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from such housing project if, ---

(a) Such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998 and completes such construction, --

(i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004 on or before the 31st day of March, 2008.

(ii) In a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004, within four years from the end of the financial year in which the housing project is approved by the local authority.

Explanation --- For the purposes of this clause,---

(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 ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

6 which the completion certificate in respect of such housing project is issued by the local authority;

(b) the project is on the size of a plot of land which has a minimum area of one acre:

Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf;

(c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometers from the municipal limits of these cities and one thousand and five hundred square feet at any other place;

and

(d) 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.]

A perusal of the above section suggests that it is applicable to all the housing projects which were approved before 31-03- 2007.

5.1.1. Further, the deduction is admissible if all the conditions (a) to (d) are cumulatively satisfied. The claim of the appellant is to be considered in the context of the provisions in the Act and the relevant assessment year. In the instant case the claim is for A.Y. 2006-07 and for the said assessment year Clause (d) is the essential condition prescribed in the section and the said condition has not been satisfied by the appellant. It may happen that prior to A.Y. 2005-06 for the same project deduction u/s. 80-IB (10) might have been claimed and allowed but from A.Y. 2005- 06 the condition (d) is also to be complied with for ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

7 allowability of deduction. In view of above, even if it is found that the facts of the case fulfil the observations of Hon'ble ITAT in the case of M/s. Shakti Corporation the claim of deduction u/s. 80 IB (10) is not admissible as condition laid down in Clause (d) is not satisfied."

12. Being aggrieved by the above observation the assessee is in appeal before us.

13. It is not in dispute that the commercial built up area of the assessee is 836.04 sq. mt., which is 7.52% of the total built up area. The contention of the assessee is that as the plan was approved on 31- 7-2002 i.e. before 1-4-2005 and therefore, insertion of clause (d) in section 80 IB(10) by the Finance Act (No.2)2004w.e.f. 1-4-2005 is not applicable in the instant case. For the above, the assessee relied upon the decision of the Hon'ble S.C. in the case CIT vs. M/s. Veena Developers & Others wherein it was held as under:-

"(e) Clause (d) inserted to Section 80 IB(10) with effect from 1-

4-2005 i.e. prospective and not retrospective and hence cannot be applied for the period prior to 1-4-2005."

14. We find that the issue under consideration is squarely covered by the decision of the Hon'ble jurisdictional High Court in the case of Manan Corporation vs. ACIT [2013] 356 ITR 44 (Guj.) wherein it was held as under :-

"The object of section 80-IB (10) of the Income-tax Act, 1961, was essentially to provide incentive to undertakings in developing and building housing projects. Section 80-IB (10) originally indicated 100 per cent. deduction on the profits derived from housing projects approved by a local authority subject to certain conditions set out in the provision. However, this provision was amended by the Finance (No. 2) Act, 2004, with effect from April 1, 2005. By virtue of the amendment having come into effect from April 1, 2005, deduction is permissible to housing projects having residential units with commercial units to the extent permitted therein. Clause (d) has been introduced, which provides ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

8 that the built-up area of the shops and other commercial establishments included in the housing project should not exceed 3 per cent. (with effect from April 1, 2005) of the aggregate built up area of housing project or 5,000 sq. ft., whichever is higher or 2000 sq. ft., whichever is less from April 1, 2010. The amendment could not be held to be retrospective as there was no explicit and specific wording expressing retrospectively and even if it is assumed for the sake of argument that it is to be read by implication that does not appear to be reasonable. A taxing statute granting incentives for promoting economic growth and development should be liberally construed to facilitate and advance the objectives of the provision. When there are two possibilities of interpretation of a taxing statute, that which is favourable to the assessee should be always preferred. Moreover, the Government of India, Ministry of Finance, Department of Revenue issued Instruction No. 4 of 2009 to all Chief Commissioners of Income-tax and all Directors-General of Income-tax to the effect that the deduction in respect of section 80-IB (10) of the Act would be available on year to year basis where the assessee showing profits on partial completion or on the year of completion of the project. From a reading of the instruction, it can be also said that the Government being aware of both the accounting methods has expected either of them to be followed in cases of individual assessees. However, in the post- amendment period, strict adherence to the completion period of four years is insisted upon where the project completion method is followed. This limitation of period did not exist prior to the amendment. The amendment cannot discriminate against those following the project completion method if in the interregnum period, amendment is brought in the statute.

There were two projects of the assessee, namely, KP and PP, in respect of the profits earned from which the assessee claimed deduction under section 80-IB(10) in the assessment year 2006-07 . The whole project was approved and completed prior to the insertion of the amended provision of section 80- IB(10) of the Act with effect from April 1, 2005. The Assessing Officer denied the deduction on two counts, namely, that the assessee failed to carry out its obligation necessary for claiming such deduction and that the assessee violated the condition laid down under the provision. The principal objection was of non- fulfilment of the condition of limitation of built up area being more than 1,500 sq. ft and its ratio to commercial shops being more than 5 per cent. of the created built up area of housing project or 2,000 sq. ft, whichever is less. This was upheld by the Tribunal. On appeal to the High Court:

ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09.

9 Held, that there was no criteria for making commercial construction prior to the amendment of the section and the plans were approved as housing projects by the local authority for both the projects of the assessee. Permission for construction of shops had been allowed by the local authority in accordance with rules and regulations, keeping in mind presumably the requirement of large townships. However, the projects essentially remained residential housing projects and that was also quite apparent from the certificates issued by the local authority and, therefore, neither the absence of such provision of commercial shops nor on account of such commercial construction having exceeded the area contemplated in the prospective amendment could the deduction be denied to the assessee whose plans were sanctioned according to the prevalent rules. The assessee was entitled to deduction under section 80-IB (10).

15. We following the above decision are of the view that clause (d) to section 80 IB (10) which has been inserted w.e.f. 1-4-2005 will not be applicable in the instant case where the project was approved on 31-7- 2002. We therefore, set aside the order of the CIT (A) on this issue. As the issue of allowability under section 80 IB (10) has been restored by the CIT (A) to the file of the A.O. with certain direction against which no appeal has been filed by both the parties. Therefore, those directions remained and A.O. is directed to consider the issue in light of the said directions of the CIT (A). This ground of appeal of the assessee is allowed.

16. In the result appeals are allowed.

Order pronounced in the Court on Friday the 19th day of June, 2015 at Ahmedabad.

Sd/- Sd/-

(RAJPAL YADAV) ( N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER

Ahmedabad. Dated 19/06/2015 ITA No 3262/Ahd/2009- A.Y.2006-07 ITA No.276/Ahd/2013-A.Y. 2007-08 ITA. No.277/Ahd/2013-A.Y0 2008-09. 10

Patki

आदे श क त ल प अ!े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. संबं धत आयकर आयु त / Concerned CIT

4. आयकर आयु त(अपील) / The CIT(A)-V, Baroda.

5. वभागीय #त#न ध, आयकर अपील य अ धकरण / DR, ITAT,

6. गाड% फाईल / Guard file.

आदे शानस ु ार / BY ORDER,

उप/सहायक पंजीकार ( Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad

1. Date of dictation- :8, 11, 15, 16-06-2015

2. Date on which the typed draft is placed before the Dictating Member -9, 12, 15 & 16-06-2015

3. Date on which the approved draft comes to the Sr.P.S./P.S. 16-6-2015.

4. Date on which the fair order is placed before the Dictating Member for Pronouncement 19-6-2015.

5. Date on which the file goes to the Bench Clerk 19-6-2015.

6. Date on which the file goes to the Head Clerk..................................

7. The date on which the file goes to the Assistant Registrar for signature on the order..........................

8. Date of Despatch of the Order..................