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2024 (6) TMI 1283
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....Ld. CIT(Appeals) grossly erred in disallowing deduction u/s 80IB(10) of the Act in respect of units where built up area exceeds the limit of 1000 sq. fts only when area of open sky balcony is added to built area." 2. At the time of hearing, the Ld. Counsel for the assessee submits that ground no.1 of grounds of appeal is not pressed and accordingly ground no.1 is dismissed as not pressed. 3. Coming to ground no.2 i.e. disallowance of deduction u/s 80IB(10) of the Act in respect of units where built-up area exceeding the limit of 1000 sq. fts only when area of open balcony is added to built-up area, the Ld. Counsel for the assessee submits that this issue is decided in favour of the assessee for the assessment years 2008- 09 and 2009-10 and also for the assessment years 2010-11 and 2011- 12 by the Tribunal. Ld. Counsel for the assessee submits that the order for the assessment years 2008-09 and 2009-10 in ITA Nos.1950/Del/2012 & 5849/Del/2012 dated 30.05.2016 is placed on record. Similarly, the order for the assessment years 2010-11 & 2011-12 in ITA Nos. 2022 & 2023/Del/2016 dated 26.04.2018 is placed on record. 4. Ld. DR supported the orders of the authorities below. 5.....
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.... reproduced in on Para 28 of this order) which have been excluded from the benefit of deduction by including the balconies open to sky for the purpose of calculating the built-up area of the individual units." 6. Similarly for the assessment years 2010-11 & 2011-12 the Tribunal in ITA Nos. 2022 & 2023/Del/2016 dated 26.04.2018 decided the issue in favour of the assessee following the order of the Tribunal for the assessment years 2008-09 & 2009-10 observing as under: - "12. In view of the above decision, while respectfully following the same, we hold that the balconies open to the sky are to be excluded from the calculation of the built-up area of a particular residential unit and according qualify for deduction under section 80IB(10) of the Act. We further hold that in view of the dispute as to the measurements between the assessee and the DVO, we restore this limited issue as to the discrepancy in measurements in respect of the alleged units with the area exceeding 1000 Sq.ft. to the file of the Assessing Officer for fresh examination and adjudication thereon after giving due opportunity to the assessee to present their case. Grounds of appeals of the assessee are ans....
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....e Assessing Officer should not have been disturbed the project completion method followed by the assessee regularly and there is no cogent reason to change the method. This finding of the Ld.CIT(A) was upheld by the Tribunal for the assessment years 2008-09 & 2009-10 observing as under: - "13. In view of discussion of the facts of the case and the legal position as above it is held that the Project Completion Method followed by the appellant is a recognized method of accounting prescribed by the ICAI which has been regularly followed by the assessee. The assessee being a real estate developer and not a construction contractor, Project Completion Method is the right method for determining the profits. The Project Completion Method being followed should not have been disturbed by the Assessing Officer as it was being regularly followed by the assessee in earlier years also and there is no cogent reason to change the method. We, accordingly, uphold the findings of the Ld.CIT(A) on this issue." 13. We further observe that the appeal of the Revenue has been dismissed by the Hon'ble High Court in ITA No.766/2016 and 178/2017 dated 16.05.2017 holding that there is no substanti....
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....e of Viswas Promoters (P) Ltd. vs ACIT 255 CTR 149 has held 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 project. Consequently, it was held, that assessee was entitled to the benefit of deduction u/s 80IB (10(c) of the Act in respect of each of the blocks. The Pune Bench of the ITAT has held in the case of Siddhivinayak Kohinoor Venture vs ACIT (2014) 159 TTJ 390 that construction of even one building with several residential projects of the prescribed size would constitute a housing project for the purpose of section 80IB(10) of the Act. The Pune Bench further held that each block in a particular project has to be taken as an independent building and hence is to be considered a housing project for the purpose of claiming deduction u/s 80IB(10). Para 32 of the order is relevant in the present appeal also and is being reproduced herein under for a ready reference: - "32. The argument of the Revenue, based on the statement of Chief Engineer, PCMC, in our view, does not help the case of the Revenue as the following discussion would show. The case set u....
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.... 1991. Thus, the Hon'ble High Court proceeded to observe that the expression 'housing project' in s. 80-IB(10) would have to be construed as commonly understood. Even in the case before us, there is no dispute that the expression 'housing project' is not defined in the Development Control Rules for PCMC and therefore, the concept of housing project' as sought to be understood by the AO based on the explanation of Chief Engineer. PCMC is not relevant for the purposes of s, 80IB (10) of the Act. Thus, the argument of the Revenue to the effect that since SWRH and 'S'1 projects have been approved by PCMC under a common approval, the two projects should be combined and considered as a single project for the purpose of s. under s. 80-IB( 10) of the Act in our opinion is misplaced." 35. Therefore, in view of the facts of the case as well as the judicial precedents discussed above, we dismiss ground no. 3 of the Department's appeal." 17. Following the order of the Tribunal, we reject ground no.3 of grounds of appeal of the Revenue. 18. Coming to ground no.4 of grounds of appeal of the Revenue Ld. Counsel for the assessee submits that there is no addition/....