TaxTMI 
TaxTMI 
2022 (11) TMI 1303
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.... Mumbai in Income Tax Appeal No.4635/Mum/2013, for the relevant assessment year 2009-10. 2. The following questions of law have been proposed for our consideration:- "A. Whether on the facts and circumstances of the case and law the Ld. ITAT has erred in not considering the two facts at all unearthed during survey proceedings dated 1/12/2011 which clearly suggest non compliance of the requirement of provision of section 80 IB of the Act? B. Whether on the facts and circumstances of the case and in law the Ld. ITAT has erred in holding that the structural changes noticed in the building as on the date of survey could not be determinative of the facts which exited on the date of sale and giving of possession without looking into the fact....
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.... the inspectors on duty during survey proceedings who have physically verified the subject premises -Poseidon dated 01/12/2011? E. Whether on the facts and circumstances of the case the appellate prays that the order of the ITAT on the above grounds be set aside and that of Assessing Officer be restored" 3. The dispute in the present appeal centers around whether the assessee was entitled to the benefit of deduction in terms of Section 80IB(10) of the Act. According to Section 80IB(10) of the Act, an undertaking is entitled to the benefit of 100% deduction on the profits derived in the previous year relevant to any assessment year from such housing project if, such an undertaking fulfills the requirement of the dates fixed under the said....
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....ect, the Assessing Officer relied upon and highlighted the following facts:- i. That there were only three flats on each floors in 'A' Wing of the project as against five flats shown in the BMC approved plans. ii. That each flats measure built up area of 1572.95 sq.f.t, 1391.98 sq.ft. and 1083.64 sq.ft. per floor. iii. That there were only three electric meters per floor for three flats constructed on each of the floors. iv. That there were only three main doors on each floor. v. That the copy of advertisements given in national dailies also indicated that the same were for 2/3/5 bedroom hall kitchens and pent houses for this project. vi. That there were only three flats per floor was endorsed by the report from independent arch....
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.... is also certified by the Engineers of the Mumbai Municipal Corporation. c. As per the approved plans each of the individual flats are self contained units having separate drawing room, dining room, kitchen, bed rooms and toilets; d. The BMC Authorities have issued an occupancy certificate for the building thereby certifying that the construction and development of the building is as per approved plans; e. The individual flats have been separately sold to various buyers as per the registered agreements for sale executed with the buyers; f. The Stamp Duty Registration Authorities have registered the agreements as individual flats and have assessed the stamp duty for each of the individual flats; g. As per the possession certificate....
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....y be issued if the construction was in accordance with the sanctioned plans dated 15.04.2022. The Tribunal also proceeded to hold that there was no allegation by the survey team during the earlier survey conducted in the year 2006 that the assessee was not raising the construction as per the approved plan. It was also held that if there was any modification effected to a residential unit completed and in regard to which a completion certificate had been issued by the competent authority, the assessee could not be held responsible. 8. Learned counsel for the respondent vehemently urged that the Tribunal could not have summarily brushed aside the second report submitted pertaining to the year 2011, which clearly reflected that there were onl....
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....that two separate agreements had been executed. The conclusions drawn by the CIT (Appeals) based on the material on record goes to show that the view expressed and subsequently upheld by the Tribunal cannot be in any way said to be a view or a conclusion which is perverse. The question essentially involved in the case, which had to be established beyond any doubt by the Revenue, ought to have been that the respondent had not only built but also sold the residential units, in respect of which the benefit of 100% deduction was claimed with an area of more than 1000 sq.ft., which only then could have justified the action of the Revenue in denying the benefit of 100% deduction under the said provision. In the present case, however, the revenue ....