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M/s U K Builders, 308, New Majestic Shopping Centre, 144, JSS Road, Mumbai-400004. Vs. Asstt.Commissioner of Income Tax, Circle-2, A Wing, 6th floor, Ashar I T Park, Wagale Industrial Estate, Road No.16-Z, Thane (W)-400604
October, 30th 2015
             ,   "" 
  IN THE INCOME TAX APPELLATE TRIBUNAL" F" BENCH, MUMBAI

  BEFORE S/SHRI B.R.BASKARAN (AM) AND SANJAY GARG, (JM)
   ..,      ,                                       

                  /I.T.A. No.344/Mum/2014
             (   / Assessment Year : 2010-11)

M/s U K Builders,               / Asstt.Commissioner of Income Tax,
308,                                Circle-2,
New Majestic Shopping Centre,   Vs. A Wing, 6th floor, Ashar I T Park,
144, JSS Road,                         Wagale Industrial Estate,
Mumbai-400004.                         Road No.16-Z,
                                       Thane (W)-400604
    ( /Appellant)               ..     ( / Respondent)



                 /I.T.A. No.1126/Mum/2014
             (   / Assessment Year : 2010-11)
Income Tax Officer,15(1)(1),    / M/s U K Builders,
Room No.119,                        308,
Matru Mandir, 1st Floor,        Vs. New Majestic Shopping Centre,
Tardeo Road,                           144, JSS Road,
Mumbai-400007                          Mumbai-400004

    ( /Appellant)               ..     ( / Respondent)



     ./   ./PAN :AABFU2463L



           / Appellant by                Shri Vimal Punmiya
           / Respondent by               Shri Abhinay Kumbhar



            / Date of Hearing                   : 29.10.2015
            /Date of Pronouncement :29.10.2015
                                      2                ITA No.344/Mum/2014 and
                                                                 1126/Mum/2014



                               / O R D E R

PER BENCH:

      These cross appeals are directed against the order dated 05.11.2013
passed by Ld CIT(A)-I, Thane and it relates to the assessment year 2010-
11. The issued urged by both the parties relate to the deduction claimed
by the assessee u/s 80IB(10) of the Act.


2.   The assessee is a builder and developer and it claimed deduction u/s
80IB(10) of the Act in respect of a housing project named "U.K.
Residential". The AO noticed that the commercial area of the project had
exceeded the maximum limit prescribed in sec. 80IB(10) of the Act. The
AO also took the view that the assessee did not obtain completion
certificate within the prescribed period. Accordingly, the AO held that the
assessee has violated the conditions prescribed in sec. 80IB(10) of the Act
and accordingly rejected the claim made u/s 80IB(10) of the Act. The Ld
CIT(A) upheld the rejection of claim by concurring with the view of the
assessing officer that the commercial area of the project has exceeded the
limit prescribed in sec. 80IB(10) of the Act. With regard to the completion
certificate, the Ld CIT(A) followed his predecessor's order, wherein the
first appellate authority had held that
      (a) the assessee had completed the project by the prescribed date
      and, in fact, applied for completion certificate within that date.

      (b) Alternatively, the Ld CIT(A) held that the time limit prescribed
      for completion of the project shall not apply to the assessee, since
      the project of the assessee was approved prior to the insertion of
      the provisions prescribing the time limit.





Accordingly, the Ld CIT(A) held that the assessee has complied with the
conditions prescribed for completion of the project.
                                      3                     ITA No.344/Mum/2014 and
                                                                      1126/Mum/2014


3.     The assessee is in appeal challenging the order of Ld CIT(A) with
regard to the rejection of the claim on the ground of violation of the
conditions prescribed for commercial area. The revenue is aggrieved by
the decision of Ld CIT(A) in holding that the time limit prescribed for
completion of the project is not applicable to the assessee, since the
project had been approved prior to the insertion of that condition.


4.     We heard the parties and perused the record. With regard to the
appeal filed by the assessee, the Ld D.R fairly admitted that the issue
urged by the assessee has since been decided in favour of the assessee by
the co-ordinate bench of the Tribunal in the assessee's own case for
assessment years 2006-07 to 2009-10 in ITA Nos.3920 to 3922/Mum/2012
and ITA No.6557/Mum/2012 dated 20-02-2015, wherein the Tribunal has
decided the issue in favour of the assessee by following the decision of
jurisdictional Bombay High Court rendered in the case of CIT Vs. Brahma
Associates (2011)(333 ITR 289). The Ld A.R further submitted that the
decision rendered in the case of Brahma Associates (supra) has since been
approved by the Hon'ble Supreme Court in the case of CIT Vs. M/s Sarkar
Builders (Civil Appeal No.4476 of 2015 dated 15-05-2015). In view of the
above, we set aside the order passed by Ld CIT(A) on the issue relating to
commercial area, since the project has been approved 0n 08-04-2003, i.e.,
prior to the insertion of the limits for commercial area.


5.   With regard to the appeal filed by the revenue, we notice that the Ld
CIT(A) has given a finding that the project has been completed by the
assessee prior to the prescribed date. Further we notice that the co-
ordinate bench of the Tribunal has held in the assessee's own case
(referred supra) that the completion certificate is not required in respect of
projects approved prior to 1.4.2005. We notice that the Co-ordinate bench
has followed the decision rendered by Hon'ble Madras High Court in the
                                      4               ITA No.344/Mum/2014 and
                                                                1126/Mum/2014





case of Cit Vs. Jain Housing & Construction Ltd (2013)(30 taxmann.com
131).    Hence, by following the decision of the co-ordinate bench, we
dismiss the appeal of the revenue.

6.      In the result, the appeal filed by the assessee is allowed and the
appeal of the revenue is dismissed.

        Pronounced accordingly in the open court on 29th Oct, 2015.

                th
              29 Oct, 2015    

          Sd                                     sd
     ( /SANJAY GARG)                      ( .. / B.R. BASKARAN)
  / JUDICIAL MEMBER                     / ACCOUNTANT MEMBER
 Mumbai: 29th Oct, 2015
.../ SRL , Sr. PS

    /Copy of the Order forwarded to :
1.  / The Appellant
2.    / The Respondent.
3.    () / The CIT(A)- concerned
4.     / CIT concerned
5.    ,   ,                      /
     DR, ITAT, Mumbai concerned
6.     / Guard file.
                                                          / BY ORDER,
               True copy
                                                    (Asstt. Registrar)
                                             ,  /ITAT, Mumbai

 
 
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