2015 (6) TMI 940

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....g the Assessing Officer to allow proportionate deduction of 80IB(10) on flats which are having built up area of below 1000 sq. ft. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) has failed to appreciate that the conditions of 80IB(10) have not been fulfilled for the whole project/building and cannot be approved in piecemeal for some flats in the building. " 2. The assessee firm engaged in the business of construction and development of residential and commercial properties and claimed deduction u/s 80IB(10). During the assessment proceedings u/s 143(3) r.w.s 153A, the Assessing Officer found that the assessee has constructed various housing units having built up area more than 1,000 sq. ft., therefore, the as....

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....TA No. 2592/Mum/2006 3. Bengal Ambuja Housing Development Ltd Vs. DC ITA No. 735/Kol/2005 4. Bengal Ambuja Housing Development Ltd Vs. DC ITA No. 458 dismissed by Cal HC. 6. Having considered the rival submissions as well as relevant material on record, we note that there are series of decisions of this Tribunal, wherein, the Tribunal has held that in case of certain dwelling units exceeds the area prescribed u/s 80-IB(10) then the assessee would be eligible for deduction proportionately to the extent of the dwelling unit having the constructed area less than the limit provided in the section. We further note that even in case of ACIT Vs. Ekta Sankalp Developers (supra), the Tribunal has observed and held in para 5 as under:- "5. We, fa....

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.... 80- IB(10) are satisfied, then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to the part of the project.' [emphasis ours] That the same is rendered upon examining the provision in a different context would be of no moment, which though prevailed with the tribunal in the case of Ekta Housing (P.) Ltd. (supra) (copy on record) in-as-much as it is trite law that it is the ratio of the decision which is binding and has precedent value. The said order by the tribunal, in-so-far as it does not state any legal reasons for so deviating, is, with respect, clearly inconsistent with the express and clear verdict by the hon'ble jurisdictional high court as extracted here-in....

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....fy the condition of section 80-IB(10)(c), is an eligible project. The word 'project', clearly mentioned in each of the other clauses, is conspicuous by its absence in clause (c). That is, s. 80-IB(10)(c) represents a condition precedent qua the residential unit comprising the housing project and not qua the project; its language not admitting of such a view. We may though at once clarify that the decision by the hon'ble court being binding, we would not have for a moment hesitated to hold otherwise if we found anything to so suggest in the decision in Brahma Associates (supra), which is sans any reference to s. 80-IB(10)(c), or if that meaning or intention was found expressed in its plain language; it being trite that there is no equity abo....

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....80-IB(10)(c), is, for the reasons afore-stated, thus not in conflict with the decision by the hon'ble jurisdictional high court in Brahma Associates (supra). The deduction toward the residential units satisfying the condition of s. 80-IB(10)(c), arrived at on a proportionate basis, is therefore upheld." 7. Thus it is clear that the Tribunal in case of ACIT Vs. Ekta Sankalp Developers (supra) has decided the issue in favour of the assessee. Accordingly, we do not find any merit in the contention of Ld. DR. It is pertinent to note that an identical issue was considered by this Tribunal in assessee's own case for A.Y. 2004-05 to 2006-07 vide order dated 19.10.2012 in para 5-6 as under:- "5. We have heard the rival submissions and gone throug....