TaxTMI 
TaxTMI 
2017 (3) TMI 1864
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....f dwelling houses. The assessee has filed his return of income for the year under consideration on 30.11.2006 and claimed deduction u/s. 80IB(10) of the Act. The Assessing Officer has denied the claim of deduction u/s. 80IB(10) on the ground that the size of the housing unit is exceeding 1,500 sq.ft., the limit specified under the provisions of section 80IB(10). The assessee challenged the action of the AO before the CIT(A), however could not succeed. Before the tribunal, the ld. AR of the assessee has submitted that the AO took the built up area of the housing unit as per the brochure issued by the assessee without measuring the actual built up area. He has also referred section 80IB(14)(a) of the Act and submitted that as per the def....
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....e ld. AR has further pointed out that for the assessment year 2007-08 the AO has accepted the claim of deduction u/s. 80IB(10). Alternatively, the ld. AR has contented that even in case some units are found to be exceeding the area of 1,500 sq.ft. only on the proportionate disallowance of deduction u/s. 80IB(10) has to be considered. 3. On the other hand, the ld. AR has submitted that residential units in question were inspected and measured by the architect of the assessee and in the presence of the assessee. Therefore, the finding of the AO is based on the facts as per the measurement carried out at the site. He has further contented that the AO has categorically stated in the assessment order that when this point was confronted to the....
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.... of these flats was wrongly taken by the AO without excluding the common area. There is no bar of raising the fresh plea or making claim at the appellate stage however, if the claim of the assessee is based on the facts which are required to be investigated then this rule of raising the fresh plea before the appellate authority as held by the Hon'ble Supreme Court in the case of NTPC Vs CIT 229 ITR 383 is not applicable. In the case in hand it is undisputed that the AO has pointed out to the assessee that the area of the flats in the projects are exceeding 1,500 sq.ft. and therefore the assessee's claim is not allowable upon which the assessee had withdrawn his claim by filing a revised return. Since the revised return was filed w....
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.... than the limit prescribed under the provisions. 5. In the result the appeal of the assessee is dismissed. Pronounced in the open court on this 15th day of March, 2017 ============= Document 1 1. The order of the learned Commissioner of Income-tax(Appeals) passed under Section 250 of the Act in so far as it is against the Appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case. 3. 4. The learned CIT(A) is not justified in law in not allowing the claim of deduction U/s 80IB(10) of a sum of Rs. 1,19,94,340/- on the facts and circumstances of the case. The learned CIT(A) was not justified in not considering the fact that the AO has applied the d....