Harshvardhan Constructions v. ITO (2020) 81 ITR 299/183 ITD 497 / 207 TTJ 663 (Mum.)(Trib.)

S. 80IB(10) : Housing projects-Building competition certificate-Mere delay in issuing competition certificate-Exemption cannot be denied-Inner measurements of a residential unit as well as projection or balcony would form part of built-up area-Within a composite housing project, where there are eligible and ineligible units, assessee can claim proportionate deduction in respect of eligible units-Higher GP rate cannot be a sole decisive factor for declining an assessee’s claim of deduction-Period during which lockdown was in force in view of COVID-19 pandemic, would stand excluded for purpose of working out time limit for pronouncement of orders, as envisaged in rule 34(5). [S. 255, ITAT R. 34(5)]

Tribunal held that when the builder having completed housing project within stipulated time period had applied for completion certificate, but issuance of same involved delay on part of local authority, in such type of cases there would be no justification in denying assessee’s claim for deduction u/s 80IB(10) of the Act.   Tribunal also held that if  the assessee builder had de facto provided to purchaser of flat exclusive possession/ enjoyment of dry balcony attached with flat, same would be included while computing built-up area of such flat.-Held, yes however, if such dry balcony is either in nature of a service projection to be used for servicing building or carrying out repairs of building, or a common area shared with other residential units, then same would not be included in built-up area of flat. Tribunal also held that within a composite housing project, where there are eligible and ineligible units, assessee can claim deduction in respect of eligible units in project and claim proportionate relief in units satisfying extent of built-up area. Excess profit was attributable to steep rise in price of land in year in which flats were sold, had also not been taken cognizance of by Assessing Officer in course of assessment proceedings. Accordingly the claim of deduction could not be declined. Tribunal also held that period during which lockdown was in force in view of COVID-19 pandemic, same would stand excluded for purpose of working out time limit for pronouncement of orders. (AY. 2011-12, 2013-14)