TaxTMI 
TaxTMI 
2019 (5) TMI 677
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....the parties, we, for the sake of convenience, proceed to dispose of both the appeals by a consolidated order. 3. The relevant facts as culled out from the material on record are as under :- Assessee is a partnership firm stated to be engaged in the business of Promoter and Builders. Assessee electronically filed its original return of income for A.Y. 2007-08 on 31.10.2007 declaring total income of Rs. 1,13,50,042/-. The assessment was initially processed u/s 143(3) of the Act on 30.12.2009 by denying the claim of deduction u/s 80IB(10) of Rs. 6,85,84,507/-. Subsequently, the case was re-opened by issuing notice u/s 148 of the Act on 29.03.2014 which was served on the assessee. Thereafter, the case was taken up for scrutiny and assessment was framed u/s 143 r.w.s. 147 of the Act vide order dt.13.03.2015 and the total income was determined at Rs. 21,97,74,320/-. Aggrieved by the order of AO, assessee carried the matter before Ld.CIT(A), who vide consolidated order dated 12.10.2016 for A.Ys. 2007-08 and 2012-13, granted substantial relief to the assessee. Aggrieved by the order of Ld.CIT(A), Revenue is now in appeal before us and has raised the following effective ground : ....
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....s been held as under:- "9. After going through the above submission and material on record, we find that the assessee has claimed deduction u/s. 80IB(10) in respect of project Kumar Shantiniketan. According to the Assessing Officer, built up area of two flats (Flats No.3 and 4 in building 'D' exceeded 1500 sq. ft. which is not in dispute. Now the alternate contention before us is whether deduction should be allowed on proportionate basis in respect of units whose built up area is less than 1500 sq. ft. We find that ITAT, Pune "A" Bench in Rohan Homes in ITA. No. 423/PN/2011 dated 31.03.2013 wherein Tribunal has held as under: "11. We have carefully considered the aforesaid plea set up by the learned CIT-DR. On a careful reading of that the entire judgment of Bombay high Court in the case of Vandana Properties (supra), we do not find any - support to the proposition that proportionate deduction u/s 80IB(10) of the ........... 12 ............... . 13 The Calcutta Bench of the Tribunal in the case of Bengal Ambuja Housing development Ltd. (supra) held as under:- ..................... 14 ............ . 15 ............ . ....
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....ed claim for deduction u/s 80IB(10) if some of its residential units are of built up area exceeding prescribed limit in clause (c) of section 80IB(10) of the Act. "...................." It is also clarified that Madras High Court in the case of Vishwas Promoters 81 DTR 68 has held that even if built up area of few units exceed 1500 sq. ft. assessee would not lose deduction in entirely and prorate deduction would be allowed. This takes care of the objection of the Ld. Departmental Representative in this regard. In view of above discussion we set aside the order of the CIT(A) on the issue and direct the Assessing Officer to re-work and allow deduction u/s 80IB(10) of the Act to the Assessee." 4.4 In view of the above facts and following the decision of the Hon'ble Pune ITAT in this regard for A.Yrs. 2008-09 & 2009-10 in Appellant's own case, the Assessing Officer is directed to rework the deduction in respect of the Appellant's project 'Kumar Shantiniketan' as per directions issued by the Hon'ble ITAT in its order dated 15.04.2013. Ground of Appeal No.1 raised by the Appellant is therefore, held to be allowed. The Appellant succeeds ....
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....der ITA. No. 1164/PN/2012 - A.Y.2008-09 and ITA No.2210/PN/ 2012 - A.Y. 2009-10 where in the following paragraphs it has been held as under:- "17. After going through the above submission and material on record, we find that the assessee has disallowed the claim of the assessee on three account viz., the project Kuamr Kruti is part of larger project named Kumar City project, assessee should have completed the project by 31.03.2008. Further, the commercial area; in Kumar City project is more than limits prescribed, the said condition has also been violated and lastly built up area of eight flats exceed 1500 sq. ft. which is also violation of conditions prescribed u/s. 80IB(10). As discussed above, following the reasoning in project Kumar Shantiniketan, we have allowed deduction on prorates basis with regard to completed eligible flats vide pars 9 of this order. Accordingly Assessing Officer is directed to rework deduction of claim u/s. 80IB(10) on eligible flats after excluding eight flats whose area exceed prescribed limit of area. 18. Regarding two remaining issues we find no dispute that project Kumar Kruti is a part of Kumar City project as far as layout dated ....
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....tified in holding that this project is a part of Kumar City project. Even if there is a common layout plan but independent building plan, the project approved under separate building plans is to be considered as independent project and not part of larger project. We find that ITAT Pune 'A' Bench in Apoorva Properties and Estates Pvt. Ltd. vs. DCIT dated 21.08.2009............................... ..................................................................... 19................................. 20. Our finding is fortified by the ratio laid down by the ITAT Pune Bench in Adiya Developers discussed above. We also find that ITAT Pune Bench in DClT vs. Ankit Enterprises had occasion to decide similar issue and taking all facts and circumstances into consideration, decided the similar issue in favour of assessee wherein sanction of building plan has been made basis for holding independent project for the purpose of claiming deduction u/s. 80IB(10). We find that ITAT Pune Bench in P.V. Mahadkar & Associates in ITAT No. 1117/PN/2010 has discussed and decided similar issue in favour of assessee by observing as under:- 21. In view of above, project Ku....