TaxTMI 
TaxTMI 
2016 (7) TMI 446
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....llowing grounds: "1. On the facts and in the circumstances of the case and in low, the Ld CIT(A) erred in relying on the order of the Hon'ble Madras High Court in the case of Vishwas Promoters Pvt. Ltd. and the order of the Hon'ble Bombay High Court in the case of Vandana Properties while allowing claim of deduction u/s 80IB(10) of the I.T. Act to the assessee, without appreciating the fact that these decisions of the High Courts were not accepted by the department and SLPs have been filed against them. 2. Whether on the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in treating tower nos T1 to T3 (part of the project of 6 towers) independent of remaining towers nos T4 to T6 based on dif....
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....the income was assessable u/s 115JB of the IT Act, without appreciating the fact that the assessee is eligible to avail MAT credit in subsequent years." 3. In C.O. No.18/Mum/2016, assessee has filed the appeal on the following grounds: "1. The Commissioner of Income-tax (Appeals) [C.I.T.-(A)] ought to have allowed the deduction of Rs. 3,15,00,929/- as claimed by the Respondent assessee under section 80IB [10] of the Income-tax Act, 1961 (hereinafter said the "Act"). The learned C.I.T.[A] has grossly erred in disallowing the deduction in respect of profits arising on sale of Units in Towers T2 and T3 on the alleged ground that all the tenements did not comply with the statutory requirements. The aforesaid finding being arbitrary,....
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....and not on the estimated profit. Assessing Officer observed that many of the flats in building T2 like 103, 303, 503, etc. were of 1831sq.ft. Similarly many of the flats in building T3, like 101, 301, 501, are of 1831sq.ft. and assessee itself submitted in their submission dated 15.03.2013, since 2/3 of flats were admeasuring less than 1500sq.ft. at least to allow 2/3rd of deduction u/s.80IB. But it was found important to understand that the deduction u/s.80IB is for one single undertaking and deduction cannot be given on proportionate basis. According to Assessing Officer, as per the provisions of section 80IB the project undertaken to be eligible for 80IB has to be completed within a period of 4 years. But as per the above discussion, it ....
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....- T.C. (Appeal) Nos. 1014 of 2009, 857 of 2010 & 190 to 192 of 2012, W.A. No.471 of 2010, M.P. Nos. 1,1,1,2 and 2 of 2012 dated November 2, 2012 wherein issue has been decided in favour of assessee. 7.1 As far as assessee's entitlement on proportionate basis u/s.80IB(10) of the Act is concerned, Hon'ble Bombay High Court in case of M/s. Vandana Properties in Appeal No. ITA 3633 of 2009 held as under: "Facts The assessee had constructed buildings A, B, C and D over a period of many years on a plot 01 land, admeasuring 2.36 acres situated at Kandivali (West), Mumbai. Pursuant to an order passed by the State Government in the year 2001 permitting conversion of the status of the land, the assessee became entitled to constru....
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....of one acre must be vacant. The said Section allows deduction to a housing project constructed on a plot of land having minimum area of one acre and it is immaterial as to whether any other housing projects are existing on the said plot of land or not. The court also noted that Central Board of Direct Taxes (CBDT) by its letter dated 4th May 2001 addressed to the Maharashtra Chamber of Housing Industry had stated that additional housing project on existing housing project site can qualify as infrastructure facility under Section 10(23G) provided it is taken up by a separate undertaking, having separate books of accounts, so as to ensure that correct profits can be ascertained for the purpose of Section 80IB. It was not the mandate of the Se....
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....idering a claim of deduction. The undertaking qualifying for deduction u/s.80IB of the Act is an undertaking developing and building housing projects and the deduction is in respect of profits and gains derived from such housing project, satisfying the conditions stipulated in the clause therein. Thus, within a composite housing project, where there are eligible and ineligible units, assessee can claim deduction in respect of eligible units in the project and even within the block, assessee is entitled to claim proportionate relief in the units satisfying the extent of built-up area. CIT(A) rightly held that assessee was eligible for deduction u/s.80IB of the Act for Tower T1 amounting to Rs. 1,44,91,313/- being eligible profit u/s.80IB of ....