2015 (4) TMI 1351 - AT - Income Tax

Deduction u/s 80IB - pro-rata deduction u/.80- IB(10) - project Garden Estate was allowable on a proportionate basis or not, i.e., excluding the profit attributable to the area covered by the flats exceeding the upper limit of 1000 sq. ft., as prescribed u/s.80-IB(10)(c) of the Act - HELD THAT - In the instant case, eighteen flats have admittedly been converted into nine duplex flats, implying at least nine allotments to the same allotee/s, or to his family member, attracting the rigor of s. 80-IB(10)(e)/(f). This aspect ought to have, in view of the changed law, providing for the eligibility of the project w.r.t. allotment, brought to our notice, which we consider as a serious failing, which gets in fact compounded in view of the earlier lapse in not clarifying to the tribunal the fact that the Revenue is also in appeal, so that the assessee s appeal stood heard by it in isolation despite it being a case of cross appeals, and on the same issue. So much so that we think that it was a proper case for recall of the assessee s appeal for being heard along with the instant appeal, which again has not been attempted by the Revenue. In fact, the relevant facts came to light only on perusing the file; the matter, as afore-stated, being closed as a squarely covered matter, which it indeed is, i.e., qua facts. The purview of an appellate authority, it needs to be appreciated, is to ascertain the correct tax liability by enabling determination of the correct income chargeable to tax, and the parties are obliged to assist the court in arriving at the correct decision The consequence would be that profit of the project Garden Estate shall not be eligible for deduction u/s. 80-IB(10) for the current year; it being again trite that only a cumulative satisfaction of all the qualifying conditions would render a project as an eligible project. This aspect of the matter, which we regard as legal in view of the admitted facts, being further determined by the tribunal in the assessee s own case, and with reference to which the assessee pleads its facts as identical with that for the preceding year, even as stated by the ld. CIT(A), having not been either considered during the assessment or the first appellate stage, or even before us, we only consider it fit and proper to restore the matter back to the file of the ld. CIT(A) to consider the eligibility of the said project, particularly with reference to the amended law, i.e., clauses (e) and (f) to s. 80-IB(10), inserted with effect from the relevant assessment year, determining the said issue after allowing reasonable opportunity of hearing to both the sides, in accordance with law. Revenue s appeal is allowed for statistical purposes.

Summary

Issues:

1. Allowance of deduction u/s.80-IB(10) on a proportionate basis.
2. Interpretation of eligibility conditions under section 80-IB(10) for a housing project.
3. Impact of amendments to section 80-IB(10) by Finance Act, 2009 on project eligibility.

Issue 1: Allowance of deduction u/s.80-IB(10) on a proportionate basis

The appeal by the Revenue challenged the CIT(A)'s decision partly allowing the Assessee's appeal contesting its assessment under section 143(3) of the Income Tax Act, 1961 for the assessment year 2010-11. The key matter was the allowance of deduction u/s.80-IB(10) on the project 'Garden Estate' on a proportionate basis. The Tribunal noted that the issue was covered in the Assessee's favor by previous tribunal decisions for subsequent years, and the hearing was closed based on this understanding.

Issue 2: Interpretation of eligibility conditions under section 80-IB(10) for a housing project

The housing project 'Garden Estate' faced scrutiny due to the conversion of 18 1 BHK flats into 9 duplex flats, exceeding the 1000 sq. ft. limit, potentially disqualifying it for deduction u/s.80-IB(10). The CIT(A) allowed a proportionate deduction excluding the area of the duplex flats. The Tribunal, based on factual examination, found no violation of section 80-IB(10)(c) for the project, allowing deduction on the entire profits. The Revenue's appeal contested this decision citing legal precedents emphasizing that a project is either eligible as a whole or not, disallowing proportionate deduction.

Issue 3: Impact of amendments to section 80-IB(10) by Finance Act, 2009 on project eligibility

The Tribunal highlighted amendments to section 80-IB(10) by Finance Act, 2009, introducing conditions regarding allotment of residential units in housing projects. The new clauses (e) and (f) set conditions for project eligibility concerning allotment, aiming to prevent circumvention of area restrictions. In the case at hand, the conversion of flats into duplex units triggered these new conditions, potentially disqualifying the project for deduction. The Tribunal noted a failure to address this issue earlier and decided to refer the matter back to the CIT(A) for reconsideration in light of the amended law, emphasizing the need for compliance with all qualifying conditions for project eligibility.

In conclusion, the judgment addressed the issues of deduction allowance under section 80-IB(10), interpretation of eligibility conditions for housing projects, and the impact of legislative amendments on project eligibility. The decision underscored the importance of adhering to all qualifying conditions for claiming deductions under the Income Tax Act, ensuring accurate determination of tax liability.