AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 552
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.... of Board's Circular dated 3.6.2010. 2. On the facts and in the circumstances of the case and in law, whether the learned CIT was right in disallowing assessee's claim of deduction U/s.80IB(10) when booking of and allotment of bunglows No.(12) & (14) was made when amendment in Sec.80IB(10)(e) & (f) was not in force that the sequence of the events, the date of booking and allotment, first payment and Banakhat itself proves beyond doubt that the amendment made by Finance (No.2) Act 2009 is not applicable to the fact and circumstances of the case of the appellant and considering the same, the claim of the appellant for deduction U/s.80IB(10) be allowed. 3. That the appellant has cited Board's Circular dated 3.6.2010 being explanatory Notes and the purpose of the amendment in Sec.80IB(10) is misread and misinterpreted and thereby claim of the appellant disallowed by learned A.O. and confirmed by learned CIT(A) be allowed. WITHOUT PREJUDICE 4. In the alternative the appellant has claimed deduction of profit U/s.80IB(10) @ 100% and in case, as alleged by learned A.O. and confirmed CIT(A) that there is violation of conditions for one unit, the profit earned of the said unit be taxed a....
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....ellant is not accepted and discussion is in paras 7 to 11 and finding is in para (12) &(13) of the assessment order. 2. The amendment in Sec.80IB(10)(e) & (f) have been came into force with effect from 1.4.2010 inserted by the Finance (No.2) Act 2009., which is reproduced as under: The object of tax benefit for housing project is to build housing stock for low and middle income household which has been ensured by limiting the size of the residential units. However, this being circumvented be some developers by entering into agreement to sell multiple adjacent unit to a single buyer. Accordingly new clauses have been inserted in the said sub-section to provide that the undertaking which develops and builds the housing project shall not be allowed to allot more than one residential unit in the housing project to the same person. No other residential unit in such housing project is allotted to any other following persons, namely; i) The individual or spouse or minor children of such individual, ii) The Hindu Undivided Family in which such individual is the Karta. iii) Any person representing such individual, the spouse or minor children of such individual or the Hindu Undivided F....
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....hare Certificate of ownership of Bunglow No. 14 in Anurag Bunglows is also standing in the name of Kantaben D. Patel and further in the Members List of the Society, the name of Kantaben D. Patel is appearing and maintenance deposit of Rs. 50,000/- has been paid by Kantaben and list of members wherein name of Kantaben D. Patel is appearing against Unit No. 14. Further, the entrance fees in the Society of Rs. 5/- and share subscription of Rs. 250/- is also in the name of Smt. Kantaben D. Patel. Moreover in Sale Deed dated 7.4.2010 in Annexure on Page 102 of Paper Book it is clearly stated that Registration Fees is exempt to the ladies buyer and all the documentary evidences are lying on the record of the learned A.O. 7. There is no condition precedent in Sec. 80IB(10) regarding investment of funds. Even as per Sec. 80IB(10)(f) there is no condition which the learned A.O. has stated in the assessment order as well as CIT(A) in appellant order and for further clarifications the amended section is reproduced as under: "80IB(10)(f): in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is....
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.... not a member of the family of Dipakkumar D. Patel 2. Hindu Undivided Family in which such individual is a Karta Kantaben is not the member of Hindu Undivided Family of Dipakkumar D. Patel 3. Any person representing such individual, the spouse or the minor children of such individual or the Hindu Undivided Family in which such individual is the Karta Dipakkumar D. Patel not representing such Individual i.e. Dipak D. Patel [Self] but representing his mother and also not representing his wife Smt. Gira or minor daughter Suchi and also not re Karta of HUF of his family. 11. The learned A.O. as well as CIT(A) both the authorities are bound by the circular No.5 (2010) dated 3.6.2010 explaining the amendment brought by Finance Act (2) of 2009 dated 3.6.2010 which is reproduced by learned CIT(A) in appellate order on page (19) para (3). The purpose of amendment brought in section is mentioned in the Circular Para 33.7 and the facts of the case of the appellant is totally different. In the case of appellant there are two separate Unit No.12 and 14 which are independent bunglows and amendment in Statute Book and the purpose is mentioned below: The condition No. 80IB(10)(c )which is repr....
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....ision of violation and total denial of exemption the A.O. denied exemption U/s 11 & 12 for assessment years 2001-02 to 2003-04. The CIT(A) has held that only such part of the income which was violated of section 13(1)(d) could be brought to tax on maximum marginal rate and the entirety of the income of the assessee could not denied exemption which was confirmed by Tribunal. On appeal to High Court, the Hon'ble Madras High Court dismissing the appeal that denial of exemption should only to the extent of the income which was violating of section 13(1 )(d) and not the total denial of exemption U/s 11. The Hon'ble Madras High Court has also followed the Bombay High Court decision in the case of D.I.T. (Exemption) vs. Sheth Mafatlal Gagalbhai Foundation Trust, 249 ITR P. 533. The zerox copies of various decisions of High Courts and Tribunals is submitted during the course of appeal hearing. 13. In view of the above stated facts and circumstances of the case the appeal of the appellant may please be decided on merits. Ahmedabad App. Rep. by N C Amin, Advocate 10th Dec. 2014" 3.1. He submitted that the authorities below were not justified in denying the claim of deduction made....
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....residential unit and if he has to share that common area with owner of another residential unit, then that common area has to be excluded while computing builtup area to extend benefit under section 80-IB(10). Considering the same, observation of AO that built-up area of the Scheme is in excess of 1500 sq.ft. is incorrect. However, as appellant has violated provisions of section 80IB(10)(f) referred supra, AO was correct in rejecting entire deduction u/s.80IB(10) claimed by appellant for reasons discussed hereinabove. The Appellant in its alternate contention has stated that only proportionate disallowance should be made as violation of Section 80IB(10) is only with reference to two units for which reliance was placed on decision of Vishwas Promoters (Pvt) Limited. This alternate contention cannot be accepted as decision relied upon by Appellant is in different context because in the said case, certain residential block had built-up area in excess of 1500 sq.ft., whereas in the present case, Appellant has violated the basic object of providing concession to housing project as discussed herein above and provision of Section 80IB(10)(f) relied upon by AO does not provide any concess....
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....014 for AY 2010-011 is allowed. 5. Now, we take up the Assessee's appeal in ITA No.2426/Ahd/2014 for AY 2011-12. The assessee has raised the following grounds of appeal:- 1. That the learned A.O. has erred both in law and on the facts of the case in determining total income of Rs. 2,45,32,270/- as against the returned income shown as NIL. 2. That the appellant is fulfilling all conditions as enumerated in Sec.80IB(1)(a)(b)(c)(d)(e) & (f). However, without considering it properly and intention of the section, the disallowance made by learned A.O. even though all the materials are available on record and therefore claim of the appellant be allowed as claimed in return of income. 3. That the appellant has not allotted residential units to one individual Dipakkumar Dahyabhai Patel and there is no violation of conditions prescribed U/s.80IB(10)(e)(f) of the I.T.Act 1961 and therefore the claim of the appellant disallowed by the learned A.O. U/s 80IB(10) on irrelevant facts be allowed. 4. On the facts and circumstances of the case of the appellant that no two units have been booked in the name of one individual and documentary evidences are on the record of the learned A.O. and cons....