TaxTMI 
TaxTMI 
2015 (7) TMI 1362
X X X X Extracts X X X X
X X X X Extracts X X X X
....the appeals, the common ground of appeal taken by the assessee is that the Commissioner of Income Tax (Appeals) erred in disallowing proportionate deduction under sec. 80IB of the Act. 3. The common ground of appeal taken by the Revenue in all the years under consideration is that the Commissioner of Income Tax (Appeals) erred in directing the Assessing Officer to allow deduction under sec. 80IB(10) on proportionate basis. 4. The brief facts of the case are that the Assessing Officer observed in assessment year 2007-08 that in the housing project constructed by the assessee known as "Devashri Garden - Phase I, (Building C), Soccoro, some of the residential units constructed were more than 2000 sq.ft. and as per sec. 80IB(1), the maximum b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T in T.C. (Appeal) No. 1014/2009 order dated 02/11/2012. 11. Being aggrieved by this order of the Commissioner of Income Tax(Appeals), both the assessee and the Revenue are in appeal before us. 12. The Revenue is in appeal before us for allowing deduction under sec. 80IB(10) to the assessee on proportionate basis and the assessee is in appeal before us against the order of Commissioner of Income Tax(Appeals) for disallowing the deduction under sec. 80IB(10) on proportionate basis. 13. The Departmental Representative relied on the order of the Assessing Officer. 14. On the other hand, the Authorized Representative of the assessee submitted that the assessee developed and sold the flats in line with approved plans/construction license/occ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laim of deduction u/s 80 IB(10). iii) The assessee promoter, himself provided facilities for converting two units into one unit at the construction stage, itself. iv) Thus, all the conditions prescribed for availing deduction u/s.80 IB(l0) were not fulfilled. v) For claiming deduction u/s.80 IB(10), all the conditions are required to be met simultaneously. In its submission, the appellant has mainly stressed on the following aspect. i) That it has complied with all the provisions provided to claim deduction u/s.80 IB(10). ii) In the approved plan all the units were less than 1500 sq. feet each. iii) It has sold all the units separately and there are separate agreements for all the units. iv) There was no restriction on selli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ilar to that of M/s. Miraj Enterprises. In this case, the A.O. disallowed the claim of deduction u/s.80 IB(10) on the ground that many units were larger than the prescribed area u/s.80 IB(10). The CIT (A), in his order directed the A.O. to allow deduction, because the alterations were made after the flats were sold, which was beyond the control of the promoter. The ITAT confirmed the order of the CIT (A) and Honourable High Court dismissed the appeal of the revenue, saying that no substantial question of law arise. The only difference in facts in the above mentioned case and the instant case is that, in this case, alterations were made by the promoter during the construction stage itself, albeit at the request of the buyer. Therefore, in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y deduction on this. We hold that the Tribunal is not correct in its view, that by reason of these Units being in excess of 1500 sq.ft., the entire claim of the assessee in respect of these two projects would stand rejected under Section 80 IB(10) of the Income Tax Act. Thus, going by the definition of "housing project" under Explanation to Section 8OHHBA of the Act as referred to above as the construction of "any building" and the wordings in Section 801B(10) of the Act, the question of rejection in entirely of the project on account of any one of the blocks not complying with the conditions, does not arise. Even in the case of each one of the blocks, wherever there are flats which satisfied the conditions particularly of the nature stated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2005-06, 2006-07, 2007-08 and 2008-09, thereby answering the substantial questions of law in favour of the assessee, that the assessee is entitled to the claim of deduction in respect of all the blocks forming part of the projects called Agrini and Vajra, but to the extent of each of the blocks satisfying the conditions under Section 80 IB(10) of the Act, the assessee would be entitled to the relief on a proportionate basis." Thus, it is clear that the facts are identical in the instant case to that of discussed above. Relying on the above quoted decision, the A.O. is directed to allow deduction u/s.80 IB(10) to the appellant on proportionate basis. This second ground of appeal of the appellant is hereby allowed. 7. It is seen that the ....