TaxTMI 
TaxTMI 
2022 (2) TMI 877
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....hat the ld.CIT(A) has erred in law and on facts in restricting addition at Rs. 1,81,06,445/- made u/s.80IB(10) of the Income Tax Act, 1961 [hereinafter referred to the Act] to Rs. 11,83,663/-. 3. Brief facts of the case is that the assessee is engaged in the business of development and building infrastructure housing projects. For the Asstt.Year 2012-13, the assessee filed its return of income on 20.7.2012 declaring total income at Rs. 2,440/- after claiming deduction under section 80IB(10) of the Act of Rs. 1,81,06,445/-. The assessment was completed by the AO on the ground that one of the unit sold by the assessee is above 1500 square feet and therefore the entire claim of deduction under section 80IB was rejected by the AO. 4. Aggr....
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....d this being a fresh document/ evidence, a remand report way called from the AO. The AO in his remand report dated 25.04.2018, accepted the fact that except one unit, all the units sold are of less than 1500 Sq Ft. and thus DVO's report as an additional evidences may be considered in view of natural justice. The AO in his Remand report has mentioned as under: " As the scrutiny assessment was time barring on 31,03.2015 and the Report of DVO was not received, the AO has no other option and order u/s. 143(3) of the Act was passed on 31.03.2015 determining the income at Rs. 1,81,08,885/- after making addition of Rs. 1,18,06,445/- (incorrectly stated Rs. 1,18,06,445/- instead of Rs. l,81,06,445/~ ) on the account of the disallowance....
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....s of 1508.41 Sq Ft. This fact has also been confirmed under DVO's Report as well as remand report. Merely because one unit is in excess of 1500 SqFt, the deduction u/s 80IB(10) cannot be denied on the entire project as held by Higher Authorities in following cases - * Bengal Ambuja Housing Development Ltd. vs. DCIT, 1TA No.l595/Kol/2005, vide order dated 24th March 2006 * Saroj Sales Organisation vs Income Tax Officer (ITAT Mumbai) (2008) 8(5 TTJ Mum 485 1 all earlier years, similar deduction u/s.80IB(10) of the Act has been allowed. The appellant has furnished the copies of assessment orders from A.Yrs. 2008-09 to 2010-11. hi view-of tins, the disallowance made by AO invoking the provisions of Section 80IB(10....
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....h is admeasuring 1508.41 square feet. This fact has also been confirmed by the Department Valuation Officer. The assessee cannot be denied of entire remaining housing projects under this provision just because one unit is in excess of 1500 square feet. In this connection, judgment in the case of Viswas Promoters P.Ltd (supra) supports the case of the assessee. The relevant paragraphs of the judgment are para-14 and 15, which are as follows: "14. On the facts admitted by the Revenue, in the projects "Agrini" and "Vajra", there are number of flats which are below 1500 sq.ft., and the relevant built-up area requirement is specified under Section 80IB(10)(c) of the Income Tax Act. Thus, the built-up area in some of the flats in both th....
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.... project" as referring to construction of any building and the wordings in Section 80IB(10) of the Act. In the circumstances, we hold that the mere fact that one of the blocks have units exceeding built-up area of 1500 sq.ft, per se, would not result in nullifying the claim of the assessee for the entire projects. Consequently, in respect of each of the blocks, the assessee is entitled to have the benefit of deduction in respect of residential units satisfying the requirement under Section 80IB(10)(c) of the Act. In so holding, we also agree with the decision of the Bombay High Court in CIT v. Vandana Properties [2012] 206 Taxman 584/19 taxmann.com 316, which was decided by the Bombay High Court on similar lines as in the assessee's cas....