2018 (1) TMI 1646 - AT - Income Tax

Disallowance of deduction claimed u/s 80IB(10) in respect of housing project - AO has disallowed assessee s claim of deduction alleging violation of conditions of clause (f) of section 80IB(10) which provides that more than one residential unit in a housing project cannot be sold to a person / individual - whether for violation of the conditions of clause (f) of section 80IB(10) of the Act in respect of two flats assessee s claim of deduction in respect of entire housing project can be disallowed? - HELD THAT - Undisputedly except violation of conditions of clause (f) of section 80IB(10) of the Act in respect of two flats all other conditions of section 80IB(10) of the Act are fulfilled in respect of the housing project which is evident from the fact that there is no other allegation made by the AO. In our view for violation of conditions of clause (f) of section 80IB(10) of the Act in respect of two flats the deduction for the entire housing project or in respect of other flats which otherwise are complying to the conditions of section 80IB(10) cannot be disallowed. The disallowance if any has to be restricted to the flats which violate the conditions of section 80IB(10). The Hon ble Jurisdictional High Court in CIT v/s Bramha Associates 2011 (2) TMI 373 - BOMBAY HIGH COURT has held that deduction under section 80IB(10) can be allowed on proportionate basis in respect of flats which fulfilled the conditions of section 80IB(10). The ratio laid down in the aforesaid decisions though are in the context of clause (c) of section 80IB(10) of the Act however they will apply to the facts of the present case as there is not much difference in the object for which section 80IB(10) was introduced even after introduction of clause (e) and (f) to section 80IB(10) by Finance Act 2009. Therefore applying the ratio laid down in the decisions cited before us we hold that the assessee will be entitled to deduction under section 80IB(10) of the Act proportionately in respect of flats which fulfilled all the conditions of section 80IB(10).

Summary

Issues:
Delay in filing the appeal, disallowance of deduction claimed under section 80IB(10) of the Act for a housing project.

Analysis:
1. Delay in filing the appeal:
The appeal by the assessee was filed with a delay of 57 days, and the assessee sought condonation for the delay. The Tribunal, after examining the affidavit and submissions, concluded that the delay was due to genuine reasons and decided to condone it, allowing the appeal to be heard on merits.

2. Disallowance of deduction under section 80IB(10) of the Act:
The main issue in this case was the disallowance of the deduction claimed by the assessee under section 80IB(10) of the Act for a housing project. The Assessing Officer disallowed the deduction as more than one residential unit was allotted to a single individual, violating the conditions of the Act. The Commissioner (Appeals) upheld this decision, stating that no deduction could be allowed if the conditions were violated.

3. Arguments and Decision:
The Authorized Representative argued that despite the violation of conditions for three flats, the entire housing project should not lose the deduction. They cited relevant case laws to support their contention. The Tribunal analyzed the provisions of section 80IB(10) and the legislative intent behind it, emphasizing a liberal construction of the beneficial provision. It was noted that apart from the violation for three flats, all other conditions were met. Relying on precedents, the Tribunal held that the deduction should be allowed proportionately for the flats complying with the conditions. The decision was based on the principle that disallowance should be limited to the specific flats in violation, not the entire project.

4. Judicial Precedents:
The Tribunal referred to judgments by the Jurisdictional High Court and the Madras High Court, which supported the proportionate allowance of deduction under section 80IB(10) for compliant flats. These decisions were deemed applicable to the present case, even with the introduction of new clauses in the Act.

5. Final Decision:
The Tribunal partially allowed the appeal, directing the Assessing Officer to compute the deduction under section 80IB(10) proportionately for the compliant flats. The decision was based on a comprehensive analysis of the Act, legislative intent, and relevant judicial precedents.

In conclusion, the Tribunal's judgment addressed the delay in filing the appeal and provided a detailed analysis of the disallowance of deduction under section 80IB(10) for a housing project, emphasizing a proportionate allowance based on compliance with statutory conditions.