TaxTMI 
TaxTMI 
2014 (2) TMI 740
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.... income and consequential claim u/s 80IB(10) on that amount needs to be accepted." 3. We have heard the Ld. AR as well as the Ld. DR and considered the relevant material on record. At the outset we note that an identical issue has been considered and decided by this Tribunal is assessee's own case for the assessment year 2007-08 vide order dated 12.10.2012 in ITA No. 2648/2012 in para 5.5 to 5.7 as under: "5.5 We have carefully considered the version of Ld. CIT in the light of available on our record. We have carefully gone through the clause-7 of the agreement and the distribution of revenue by the assessee in its account. The distribution of the revenue in the account of the assessee is in accordance with intent and purpose of clause-7 of the agreement. According to clause-7 of the agreement SPPL is entitled to 35% share of the gross sale proceeds of the units inclusive of the value of the land. According to distribution in the account of the assessee SPPL has received Rs. 15.11 crore which is 35% of gross sale proceeds of the unit amounting to Rs.43. 17 crores. A sum of Rs. 11.62 crore is credited to the account of SPPL on account of land etc. and Rs.3.49 cror....
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.... available to an undertaking and not to the individual constituent of an undertaking. 5.6 We have also not found any force in the submission Ld. DR that 35% share allocable to SPPL was in the nature of overriding title. Clause-7 of the agreement which has been sought to be interpreted by Ld. CIT DR in this manner does not indicate that 35% of the gross revenue to be shared by SPPL was in the nature of overriding title, therefore, this argument of Ld. CIT DR has to be rejected and it is to be held that 35% share received by SPPL was not in the nature of overriding title to the revenue but it is only share of profit of SPPL. 5.7 In view of above discussion it is held that the impugned assessment order is neither erroneous nor prejudicial to the interest of revenue on account of allocation of profit between members as per accounts of the assessee as allocation of profit in the accounts of the assessee is in accordance with clause-7 of the agreement and manner of allocation of profit in the account cannot alter the quantum of deduction available to AOP under section 80 18(10)." 4. The facts for the assessment year 2007-08 and for the assessment years ....
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....n 1500 square feet. He has referred para 3.ii of the AO in this respect. The Ld. DR has also relied upon the decision of Co-ordinate Bench of this Tribunal in case of ITO Vs Everest Home Construction India Pvt. Ltd. 26 Taxman.com 246 in rejoinder the Ld. AR of the assessee has relied upon the decision of Hon'ble Gujarat High Court in case of Manan Corporation Vs ACIT 255 CTR (Guj.) 415 and submitted that the issue in case of Everest Home Construction India Pvt. Ltd. decided by the Coordinate Bench of this Tribunal is now covered by the decision of Hon'ble Gujarat High Court. 8. Having considered the rival submissions and carefully gone through the relevant record as well as the decisions relied upon by the parties we note that an identical issue has been considered and decided by this Tribunal in assessee's own case for the assessment year 2007-08 vide order dated 25.4.2012 in ITA No. 4327/2010 in para 2 to 6.2 as under: "2. The revenue has raised the following grounds: 01 On the facts and circumstances of the case as well as in law, the Ld. CIT(A) erred in directing Assessing Officer to delete the addition made of Rs.4,43,....
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.... area of the flats in the project is not disputed as it is less than 1500 sq.ft. However, the assessee has received the consideration in some of the flats for more than 1500 sq.ft area which includes built up area plus the common area and may be called as 'super built up area'. It is pertinent to note that when the project has been sanctioned and the completion certificate has been issued as per the sanctioned plant which is for the residential flats having less than 1500 sq.ft, then even if the assessee has received the consideration for more than 1500 sq.ft in some of the flats, which would not constitute violation of conditions as prescribed u/s 80IB(10)(c) because the built up area is less than 1500 sq.ft. The CIT(A) has given the details of the flats in question at page 12 & 13 as under: COPA CABNA 'A' AND 'C' Flat referred in impounded papers Build up area of flats including carpet area, thickness of walls and enclosed Balcony (in sq.mt) Build up area (in sq.fts) 1001 94.88 1021.28 1002 94.87 1021.18 BONITA, AND EVORA 102 132.81 1429.57 103 132.81 1429.57 201 132.33 1424.40 202 132.81 1429.57 203 132.6....
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....relevant material on record. The Assessing Officer has considered the residential flat and commercial project as one integrated project and thereby held that the area of commercial establishment in the project is more than the limit prescribed u/s 80IB(10)(d). 5.2 On appeal, the CIT(A) held that the residential and commercial projects are totally independent; therefore, the claim cannot be disallowed. 6. We find that the layout plan of the entire building, which was redeveloped by the assessee and assessee's sister concern M/s R Associates was approved by the Pune Municipal Corporation (PMC) by one approval order and subsequently two separate projects for residential and commercial was sanctioned by the PMC. Therefore, the Assessing Officer took the entire project as one as the layout of the development of the building was approved by the PMC by one approval. Without going into the controversy, whether the residential or commercial project are two separate projects or parts of once project, we are of the view that as per the pre- amended provisions of sec. 80IB(10), there is no such condition of commercial area in the project; therefore, once a proje....