2011 (5) TMI 958

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....material facts are like this. The assessee is engaged in the business of construction and development of properties. In the original assessment, the AO declined the assessee's claim for deduction under section 80-IB(10) on account of violation of the conditions as specified in the said section. The matter traveled in appeal before the CIT(A)-9 and vide order dated 30.3.2009, the CIT(A), inter alia, directed the AO as follows: "The appellant's claim is supported by the decision of Hon'ble Mumbai ITAT in the case of M/s. Saroj Sales Corporation ITA No.4008/M/07 order dt.24.1.2008 wherein on identical facts the Hon'ble ITAT following the Hon'ble Supreme Court decision in case of Bajaj Tempo Ltd reported in 196 ITR 188 has observed tha....

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....ons. This rule of proportionately is well founded in the Income tax law and is recognized under various provisions of the Act. The Hon'ble ITAT Chennai in the case of Arun Excello Foundations Pvt Ltd v. ACIT (2007) 108 TTJ 71(Chennai) has also upheld the pro-rata deduction on eligible residential units. Thus, respectfully following the above judgments of the various ITAT and Courts and particularly the jurisdictional ITAT in the case of Saroj Sales Organisation (supra), I hold that asssessee is entitled for deduction u/s.80IB on pro-rata basis. The AO is therefore directed to allow the deduction u/s.80IB(10) subject to verification of the areawise calculation done during the course of survey operation. This ground of appeal is partly allowe....

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....of deduction u/s.80IB(10) withdrawn by the assessee for A.Y. 2003- 04 will come to Rs. 3,37,36,621 (51.52% of Rs. 6,54,82,573). In view of the above total income of the assessee is revised as under: Assessed income as per order u/s.143(3) r.w.s.147 dt.17.12.08 : 6,83,48,200 Less: Relief allowed by CIT(A) As per original assessment u/s.143(3) deduction u/s.80IB(10) allowed. Rs. 6,54,82,573 Less During survey u/s.133A, assessee has withdrawn the deduction u/s.80IB(10) on pro-rata basis. Rs. 3,37,36,621   Rs.3,17,45,952 Relief allowed by CIT(A) u/s.80IB(10) Rs. 3,17,45,952 Revised total income Rs.3,66,02,248"   5. The assessee was aggrieved that the AO did not verify the area-wise....

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.... "subject to verification of area-wise calculation done during the course of survey operation", it is not open to the AO to proceed to adopt the calculation made during survey operation without further verification. We, therefore, deem it fit and proper to remit the matter back to the file of the AO with specific direction to verify the area-wise calculation of all ineligible flats and allow deduction u/s.80IB(10) on pro-rata basis in respect of flats which are found to be eligible for deduction irrespective whatever statement may have made by the assessee during the survey operation. It is only elementary that the statements made in the course of survey proceedings under section 133A have no evidentiary value and when the assessee can demo....