2014 (11) TMI 1258 - AT - Income Tax

Deduction u/s.80IB(10) - AO observed that commercial area exceeded the prescribed percentage of 10 of the total construction area therefore the assessee is not eligible for deduction u/s.80IB(10) - HELD THAT - AO has carried out verification of these two flats and found that Flat No.103 was sold by the assessee company to Shri Dharmendra Dhade vide agreement dated 22.06.2000 and Flat No.104 was sold by assessee company to Shri Suresh Kadam. vide agreement dated 4.7.2000. Subsequently vide agreement dated 3.3.2005 flat No.103 was sold by Dharmendra Dhade to Smt. Pratima Suresh Kadam wife of Shri Suresh Kadam. AO also reported that as per floor plan these two flats were separate from each other by a brick wall and also had two separate entrances and separate kitchens. We found that both the residential units independently capable of being use of stand alone basis and area of each unit was within 1000 sq.ft.. With regard to the commercial area the CIT(A) also recorded a finding to the effect that in terms of decision of jurisdictional High Court there was no condition of 1000 sq.ft. for shops and this condition was only for residential unit. CIT(A) also recorded a categorical finding that the project was commenced on 9-3-2000 and a completion certificate was also issued on 23-1-2003. AO has included the commercial area at 6% on the basis of the certificate of architect and occupancy certificate after inclusion of club house. AO has also computed the area which neither form part of residential area nor of built-up commercial area accordingly following the decision of case of Brahma Associates 2011 (2) TMI 373 - BOMBAY HIGH COURT wherein as held that deduction should not be denied to projects which include commercial area when the project is approved by the local authority even where commercial area exceeds 10%. After relying on various judicial decision of coordinate benches of the Tribunal the CIT(A) has followed the decision of the Hon ble High Court in the case of Brahma Associates - Decided against revenue.

Summary

Issues:
Appeals by Revenue against CIT(A)'s order for A.Ys. 2001-02, 2002-03, 2003-04, 2004-05, 2006-07 regarding deduction u/s.80IB(10).

Analysis:
1. Common Issues - Decline of Claim of Deduction u/s.80IB(10):
- AO observed area exceeding 1000 sq.ft. for two flats and commercial area exceeding 10%.
- CIT(A) deleted disallowance citing Brahma Associates case where flats were sold to different individuals.
- AO's claim of commercial area exceeding 5% was disputed based on project approval and common area exclusion.
- CIT(A) found project approval with higher commercial area permissible for deduction u/s.80IB(10).
- Judicial decisions supported deduction even with commercial area exceeding 10%.

2. Application of Amended Provisions of sec.80IB(10):
- Tribunal held conditions should be tested at project conceptualization, not at amendment date.
- Approval date determines applicability of amended provisions.

3. Judicial Pronouncements and Conclusion:
- CIT(A) confirmed flats' area compliance and project approval for deduction.
- AO's inclusion of commercial area was disputed based on project approval and common area exclusion.
- CIT(A) followed Brahma Associates case and upheld deduction for all years under consideration.

4. Final Decision:
- Tribunal dismissed Revenue's appeals, affirming CIT(A)'s order for all years.

This detailed analysis highlights the key issues involved in the legal judgment, the arguments presented by both parties, the application of relevant laws and judicial precedents, and the final decision rendered by the Tribunal.