TaxTMI 
TaxTMI 
2018 (4) TMI 1852
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.... Learned Assessing Officer erred in not accepting the fact that departmental valuation officer has pointed out that the gross plot of area of land is 4077.21 square meters and therefore it is more than 1 acre. 2. On the facts and in the circumstances of the case and in law the Learned Assessing Officer erred in not considering the plot size on the date of submission of plan and not appreciating the fact that surrender for the road is a subsequent event and conditions for 1 acre has to be seen on the date of submission of the plan. 3. On the facts and in the circumstances of the case and in law the Learned Assessing Officer erred in not allowing the deduction of Rs. 18,57,570/- u/s 80IB(10) of the Income Tax Act, 1961 altho....
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.... hand was 4077.21 sq.mtrs. However, on account of proposed road, the area reserved for the proposed housing project was less than one acre. The Assessing Officer denied 80IB(10) deduction to the assessee while giving effect to the order of Tribunal under section 254 of the Act. The CIT(A) upheld the order of Assessing Officer, against which the assessee is in appeal. 6. The learned Authorized Representative for the assessee pointed out that plot of land purchased by the assessee was referred as 40R in 7/12 extract, which was taken to be 4000 sq.mtrs. However, the actual area of the plot was 4077.21 sq.mtrs. as per triangulation method i.e. actual measurements were more than one acre and hence, the assessee was entitled to claim the afore....
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....be allowed to the assessee. The present appeal before the Tribunal is second round of proceedings. The Assessing Officer in the first round, denied the claim of deduction under section 80IB(10) of the Act on the ground of non fulfillment of condition of area of the plot. The Tribunal vide order dated 30.07.2013 (supra) noted that as per 7/12 extract, size of plot was mentioned as 4000 sq.mtrs. and even in the area statement of the approved building plan, the size of plot is mentioned as 4000 sq.mtrs. However, in the middle of the same building plan which was relied upon by authorities below, there was mention of area by way of triangulation method as 4077.1 sq.mtrs. The said contention of assessee was not considered while denying the assess....
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....00 sq.mtrs. was considered as correct plot area, then net area of plot was below one acre. He was of the view that area which was purchased and sanctioned in the plan and in the possession was less than one acre. The DVO also commented on other conditions to be fulfilled and found no other faults, except that total area of the plot of land on which the housing project was constructed was less than one acre. The assessee on the other hand, has submitted that it is the gross area which has to be considered and not the net area. The area which was left for DP road and other road is part of housing project and the same had to be taken into consideration while computing total area available for development. He stressed that in the sanctioned pla....
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.... Courts have pronounced the question of easement or right of possession had to be determined on the basis of boundaries over which such rights were generally exercised. The Courts had also held that boundaries as existed at the site must prevail over the dimensions. The Tribunal thus, held that for applicability of the said section, one had to simply ascertain the size of plot available for the impugned housing project and the amenities space which was parted with by the developer was subject to allotment of additional FSI and the developer was not in a dis-advantageous situation. 10. Coming to the facts of present case before the Tribunal, the Tribunal in the first round had noted that in the area statement, area of plot was mentioned a....
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....I. In other words, the assessee gained from leaving the land for DP road. The Courts have time and again held that the condition which needs to be fulfilled for claiming the deduction, as per clause (b) is the actual measurement of plot of land on the date of start of development. The assessee had in the present set of facts, purchased the plot of land, which measured slightly more than one acre at 4077.21 sq.mtrs. In other words, the basic condition of fulfillment of having plot area of one acre stands fulfilled by the assessee. The said area had to be set apart only as per the requirements of different rules under the Municipality Act, but the same does not lead to the conclusion that the assessee had less than one acre of plot of land ar....