TaxTMI 
TaxTMI 
2021 (9) TMI 1196
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.... the facts of the case are that the appellant firm, M/s. Giridhari Constructions, is in the business of construction of flats and for the assessment year 2011-12 it had filed its return of income on 30.09.2011 admitting Rs. Nil income after claiming a deduction of Rs. 2,65,22,346/- as deductions under the provisions of section 80IB(10). The case was selected for scrutiny and notices u/s. 143(2) and 142(1) were issued and assessment was completed u/s. 143(3) of the Act vide order dated 24.03.2014 by disallowing the claim of deduction u/s. 80IB(10) and determining the total taxable income of Rs. 2,65,22,346/- and tax payable of Rs. 1,11,45,750/-. 2.1. The assessee firm had under taken construction of a housing project by name "Girdhari Hari ....
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....uring this assessment year, the appellant disclosed profits from 76 flats out of these only 7 flats exceeded more than 1500 sft. The appellant explained that this is because of considering the common areas like balcony etc. which exceeds more than 1500 sft. Since only 7 flats out of 76 flats exceeded 1500 sft, the remaining 69 flats are within limit and are sold and the appellant disclosed profit. Therefore, disallowing deduction on flats is not proper. In the remand report also the AD mentioned that only 7 flats were deviated which are above 1500 sft. 5.1 Regarding the above issue, the appellant relied upon the following case laws: a) Decision of ITAT Pune in the case of Jayant Maniklal Lunavat vs. ACIT Circle 3 vide ITA No. 229/Pn/201....
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....n entire deduction u/s. 8016(10) is allowable. 5.2 Keeping in view of the facts of the case and several case laws relied upon by the appellant, and also relying on the case law in the case of M/s. Kura Homes Pvt. Ltd., of ITAT, 'A' Bench, Hyderabad, order in ITA No. 216/Hyd/2010 dated 21-12-2012 wherein it was held as under: "The next question that arise is whether the assessee is entitled to NIL deduction or full deduction or proportionate deduction u/s. 80IB of the 'f1' et as the size of some of the flats has exceeded the prescribed size limit. This matter has been examined in detail by the 'f1' Bench of this ITAT in the case of oar Vs. Saket Engineers (P) Ltd., supra, and it has been held that the assessee is ....
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....duction claimed by the assessee u/s. 80IB(10) on pro-rata basis when the assessee has not fulfilled the preconditions for claiming the said deduction. (2). Any other ground that may be urged at the time of hearing." 6. Before us, the ld. AR besides reiterating the submissions made before the CIT(A) and submitted that the appellant gave a break up that out of total 322 flats, the revenue booked only 291 flats, and 28 flats were given to landlord in respect to the development agreement and 3 flats are not yet registered. He submitted that the appellant submitted year wise break up for income booked in respect of 291 flats as per which the revenue has been book in the seven different financial year. Accordingly, for the year under considera....