TaxTMI 
TaxTMI 
TaxTMI 
2015 (12) TMI 360
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....impugned assessment year declaring income of Rs. 46,18,320/-. During the course of assessment proceedings it was noted by the AO that assessee had claimed deduction of Rs. 1,41,62,188/- u/s.80IB(10) of the Act, for a property constructed in Survey No.50/11, Santhamarenahalli, K R Puram, Bangalore. For verifying the claim of assessee, AO made a reference to the District Valuation Officer (DVO in short). DVO recommended disallowance of the claim made by the assessee u/s.80IB(10) of the Act noting that out of the four blocks in the land area of 3 acres and 36guntas, the three blocks which were referred to him by the AO were situated in a land area which was below one acre. Further as per the DVO, some portion of the land was developed as individual plots and disposed off. AO put the assessee on notice on the recommendation of the DVO. Assessee thereupon stated that it had different apartments named Lake City Residence, Lake Vihar, Manju Anugraha, Lake Beauty, Lake Glacier and Lake Enclave but there were all part of one project called Lake City Residency. As per the assessee, DVO had not considered the Lake City Residence and Manju Anugraha for calculations. Assessee submitted that giv....
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....ority then 80IB(10) of the Act could be availed provided other conditions set out therein were satisfied. According to him there was no case for the Revenue that any of the other conditions set out in 80IB(10) was not satisfied. 06. Per contra, Ld. DR strongly supported the orders of the authorities below. According to him, DVO's report clearly mentioned that assessee had deviated from the original approved plan. 07. We have perused the orders and heard the rival contentions. Report of the DVO which has been extracted in the assessment order is reproduced hereunder for brevity : "The assessee company has obtained an approval to construct 204 units with the land area of 3 acres and 36 guntas i.e.15782.22 sqm with the single unit whereas as per site condition there are four apartments viz., Lake city Residency, Lake beauty, Lake Glacier and Lake Enclave. However only three apartments are referred to this office viz., Lake Beauty, Lake Glacier and Lake Enclave. The land utilized for the above three apartments are as follows : 1 Lake Enclave 17 .90x22 80 = 408.12 Sqm or 4393 sft which is less thai 2 Lake Glacer and Lake Beauty 38.25 x29.25 = 1118.81 sqm or 12043 Sft which is ....
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....e of the plot of land is lost and, therefore, the assessee subject to fulfilling other conditions becomes entitled to Section 80IB (10) deduction on construction of a housing project on a plot having area of one acre, irrespective of the fact that there exist other housing projects or not. In these circumstances, the decision of the Tribunal in rejecting the contention of the Revenue regarding the size of the plot cannot be faulted." 09. Thus once a plot of land has more than one acre, the number of housing projects therein would not matter. There is no case for the Revenue that assessee had violated any conditions or not satisfied any other conditions set out u/s.80IB(10) of the Act. Though DVO has pointed out deviation from the approved project he has not stated what such deviation was and how it violated any condition set out in Section 80IB(10) of the Act. This being the case, we are of the opinion that assessee was eligible for the claim of deduction u/s.80IB(10) of the Act. Nevertheless, we find from the orders of lower authorities that no verification has been done with regard to the quantum of the claim. Denial of the claim has been made for the sole reason that area of t....
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.... through Finance Act, 2010 had to be construed retrospectively. 16. Before us Ld. DR submitted that assessee had deducted tax at source on the claim of expenditure of Rs. 4,83,79,766/-, but had remitted it to the exchequer with substantial delay. Payments effected were for subcontracts. Therefore according to him, AO was justified in invoking section 40(a)(ia) of the Act. 17. Per contra, Ld. AR supported the order of CIT (A). Reliance was placed on judgment of Hon'ble jurisdictional High Court in Anil Kumar & Co., V. ITO (354 ITR 170). 18. We have perused the orders and heard the rival contentions. There is no dispute that tax was deducted by the assessee and remitted by it before the due date of filing the return of income. As per the AO, amendment to Section 40(a)(ia) made through Finance Act, 2010, was applicable only prospectively. We find that this issue had come up before the Hon'ble jurisdictional High Court in the case of Anil Kumar & Co (supra). Their Lordships had held as under at para 3 to 6 of its judgment dt.01.02.2013 : "3. The Tribunal, after explaining the effect of the amendment by the Finance Act, 2008, held that the tax deducted during the last month of the ....