TaxTMI 
TaxTMI 
2012 (12) TMI 60
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....O) claimed by the assessee without appreciating the fact that the assessee did not own one acre of land at the time of commencement of project and also at the time of approval of the project." 3. "On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in allowing the deduction uls.80IB(1O) claimed by the assessee without appreciating the fact that the assessee is not the full fledged owner in respect of an area of one acre which is the minimum requirement for eligibility for deduction uls.80IB(1O) as the assessee has sold undivided interest over the land held by entering into agreements with individuals for transfer of undivided share of interest in land and into contracts for construction of residential units." 4. "On the facts and in the circumstances of the case and in law, the Id. CIT(A) has erred in deleting the disallowance of interest of Rs.75,750/- without appreciating the fact that the interest bearing funds were diverted by the assessee for giving interest free advances to assessee's sister concern." 3. Ground no.1 is late filing of the audit report in form 10CCB. 3.1 The Assessing Officer noticed that the audit rep....
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....cisions as relied upon by the assessee (supra) in pars 26 to 28 as under: 26. As for the first two reasons, the following decisions cited by the appellant are relevant. In CIT Vs. Contimeters Electricals (P.) Ltd., the Hon'ble High Court of Delhi has held that, the provisions of section 80-IA(7) requiring filing of audit report along with return were not mandatory but directory. If the audit report was filed at any time before framing of assessment, then the requirement of section 80-lA(7) would be met. In CIT Vs. Berger Paints (India) Ltd. (No. 2)(2003) 126 Taxman 435, the Hon'ble High Court of Calcutta has held that, furnishing of auditor's report on date of filing of return was not mandatory, but only directory in nature, and, therefore, the assessee could not be denied investment allowance merely on the ground that it failed to tender the auditor's report on the date of filing of return. 27. In CIT Vs. Gujarat Oil & Allied Industries (1993) 201 lTR 325, the Hon'ble High Court of Gujarat has held that, where an assessee could riot file audit report along with return, but filed it later before completion of assessment by ITO, he was entitled to deduction under section 80J. In C....
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....s further submitted that at the time of approval of the plan when the project was having the plot size of less than one acre as prescribed u/s 80IB(10)(a), the assessee has not fulfilled the conditions and therefore, the assessee is not entitled for deduction u/s 80IB of the Act. He has relied upon the order of the Assessing Officer. 7.1 On the other hand, the ld AR of the assessee has submitted that the project has been completed on the land of more than one acre and therefore, the conditions prescribed u/s 80IB(10) is fulfilled. He has referred the site plan sanctioned on 9.2.2005 and submitted that the size of the plot is more than one acre and the project plan has been sanctioned by the local authorities. The ld AR has further submitted that the requirement of the provisions is that the project should be on the plot of land having minimum area of one acre and therefore, when the project, which is completed by the assessee is admittedly on the plot of land having size of more than one acre then the said condition is fulfilled. The ld AR has submitted that the assessee held 0.96 acres and 0.5 acre was held by the partner of the firm. It was further submitted that the section doe....
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....or completion of the project within the prescribed time period. Therefore, we are of the considered opinion that the assessee has complied with the requirement of having the project on the area of plot of land minimum of one acre. Accordingly, this issue is decided against the revenue and in favour of the assessee. 10. Ground no.3 is regarding the ownership of land. 10.1 The Assessing Officer was of the view that since the assessee has executed the sale deed for sale of undivided interest in the land and entered into separate agreements for construction of building; therefore, what was done by the assessee for execution of contract for construction of the building on behalf of the persons to whom the undivided interest in land has been transferred. Accordingly, the Assessing Officer held that the assessee was not the owner of the land but has constructed the project on behalf of the individual and therefore, the assessee is a contractor not eligible for deduction u/s 80IB as per Explanation to sec. 80IA. 10.2 On appeal, the CIT(A) has held that there is no requirement of the assessee must be the owner of the land on which the housing project was constructed. The C....