2019 (3) TMI 1132

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....edings although row houses are part of the project." 3. At the outset, on the sole issue has been challenged by the Revenue i.e. the relief granted by the ld.CIT(A) holding that the AO has in the current assessment year not brought anything new against the assessee and the claim of deduction u/s.80IB of the Act. Therefore, the AO is directed to allow the claim of deduction u/s.80IB of the Act. 4. Being aggrieved, the Revenue has filed this appeal before this Tribunal. The ld.CIT-DR relied on the order of the AO 5. On the other hand, the ld.Counsel for the assessee submitted that the issue is in covered by the decision of ITAT Surat in ITA No's.2666/Ahd/2011 & 227/Ahd/2013 dated 03.08.2018. 6. We have heard the rival submissions and perused the material available on record. We find that the issue is covered by the order of Tribunal in ITA No's.2666/Ahd/2011 & 227/Ahd/2013 dated 03.08.2018 for A.Y. 2007-08 & 2008-09 held as under :- 12. On careful consideration of above rival submissions, we find it appropriate, necessary and profitable to reproduce the relevant paras of first appellate order wherein the ld. CIT(A) granted relief to the assessee, which reads as f....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... (10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2007 by a local authority shall be hundred per cent, of the profits derived in the previous year relevant to any assessment year from such housing project i f - (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998 and completes such construction,- (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008 ; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004, within four years from the end of the financial year in which the housing project is approved by the local authority. Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is fi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....contested that it had not claimed the tax benefits for the profits derived from the Row Houses for which the appellant had maintained separate account. The appellant's case is also supported by various judicial pronouncements. The Jurisdictional Hon'ble ITAT, Ahmedabad in the case of Radhe Developers V/s. I.T.O. Ahmedabad 'A' Bench of Ahmedabad Tribunal (ITA No. 2482/Ahd./2006) & Income-tax Officer, Ward-2(5), Ahmedabad VS. Shakti Corporation. Ahmedabad ITAT Appeal No. 1503 of 2008 aptly support the case of the appellant. Thus in my opinion, for claiming deduct U/s. 80IB(10) the ownership of the Land is not a condition and subject to fulfillment of conditions of Section 80IB(10) of the Act, deduction is available, to any Undertaking, which derives profit from developing and building of housing projects. Further, from the perusal of Assessment Order I find that Assessing Officer has nowhere observed that the area of the Flats sold by the appellant is more than the area prescribed except on the Row Houses for which the appellant had paid tax. In support of it's claim, the appellant has submitted Certificate of an Architect certifying that the Built up area of none....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ty", the flats constructed in this project are having more than the prescribed limit area as per section 80IB(10). At Page No. 5 & 6 of the Order, he observed that in the Agreements made for the Sale Flats terminology used, like Super Built up area, Carpet Area, Built up area, in relation to the area of the flats sold is very vague and confusing and concluded that appellant used vague terminology is used to avoid verification in relation to a vital parameter, i.e. area of the flat in relation to the claim of deduction U/s. 80IB(10). In view of the above, the AO concluded that the appellant is not entitled for the benefit u/s. 80IB(10) of the Act." 14. In view of contentions of the AO and findings and observations recorded by the ld. CIT(A) in the impugned first appellate order, we observe that undisputedly the appellant though had purchased the land survey No.882/1/2/2, Amli, Silvasaa vide agreement dated 18.01.2005 and due to civil dispute pending before the Court final sale deed in favour of appellant was executed on 31.03.2008. Therefore, all the necessary permissions for development of housing project, building and developing of housing project on the said land was obt....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d row houses and no claim has been made on the row houses measuring area of more than 1500 sq.ft. and the claim u/s. 80IB(10) of the Act has been made only on the flats which are measuring less than 1500 sq.ft. this fact is clearly discernable with the computation of income filing along with return of income (assessee paper book pg.1 & 2) wherein net profit as per P&L a/c. on flat sale amounting to Rs. 2,68,88,714/- has been shown and amount of Rs. 2,65,52,967/- has been claimed as deduction u/s. 80IB(10) of the Act. Thus, in view of ratio of decision of Hon'ble Madras High Court in the case of Vishwas Promoters (supra) claim of the assessee, on the flats which fulfill the conditions laid down provision of u/s. 80IB(10) of the Act is allowable and the ld. CIT(A) was right in allowing the same. 17. So far as last contention of the AO that the entire housing project has to be treated as single unit is concerned, in the case of Vishwas Promoters (supra) Hon'ble High Court of Madras also made it clear that each residential block in a housing project is a 'housing project' in itself for purpose of claiming deduction u/s. 80IB(10) of the Act. Therefore, this contention o....