2018 (5) TMI 245 - AT - Income Tax

Deduction u/s 80IB in respect of the profits of Project A&B and D&E - built up area - Held that - 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 accordingly qualify for deduction under section 80 IB(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 answered accordingly.

Summary

Issues Involved:
1. Disallowance of deduction under section 80-IB(10) due to non-fulfillment of conditions.
2. Method of accounting: Project Completion Method vs. Percentage Completion Method.
3. Inclusion of open-to-sky balconies in the built-up area calculation.
4. Eligibility of units exceeding 1000 sq. ft. in area.
5. Deduction claim for commercial projects exceeding prescribed limits.

Detailed Analysis:

1. Disallowance of Deduction under Section 80-IB(10):
The Assessee, a partnership firm engaged in real estate development, claimed deductions under section 80-IB(10) for profits from various sub-projects within Project Vista. The Assessing Officer (AO) disallowed these deductions, citing non-fulfillment of conditions such as obtaining separate approvals and exceeding the area limits for certain units and commercial projects. The CIT(A) partly allowed the deductions for units under 1000 sq. ft., based on the District Valuation Officer's (DVO) report, and found the commercial project area within prescribed limits. The Tribunal upheld the CIT(A)'s decision, noting that a housing project can include both eligible and ineligible units, and deductions are available for eligible units even if the entire project is approved as a single unit.

2. Method of Accounting:
The AO rejected the Project Completion Method adopted by the Assessee, favoring the Percentage Completion Method, and partly disallowed the deductions. However, the CIT(A) accepted the Project Completion Method for both AY 2010-11 and 2011-12. The Tribunal confirmed this approach, referencing the jurisdictional High Court's decision supporting the Project Completion Method.

3. Inclusion of Open-to-Sky Balconies:
The Assessee challenged the disallowance of deductions for units exceeding 1000 sq. ft., arguing that the excess area resulted from including open-to-sky balconies in the built-up area. The Tribunal ruled in favor of the Assessee, stating that open-to-sky balconies should be excluded from the built-up area calculation, thus allowing the deductions for these units.

4. Eligibility of Units Exceeding 1000 Sq. Ft.:
The Tribunal addressed discrepancies in the DVO's measurements of certain units exceeding 1000 sq. ft. It remanded the issue to the AO for fresh examination and adjudication, providing the Assessee an opportunity to present its case regarding the correct measurements.

5. Deduction Claim for Commercial Projects:
The Assessee contended that the commercial project, with a built-up area of 4896 sq. meters, was separate and not included in the deduction claim under section 80-IB(10), as it constituted only 2.90% of the total built-up area of the housing project. The Tribunal accepted the CIT(A)'s findings and allowed the deduction claim, noting that the commercial project's area was within acceptable limits.

Conclusion:
The Tribunal ruled in favor of the Assessee on several issues, including the exclusion of open-to-sky balconies from built-up area calculations and the acceptance of the Project Completion Method. However, it remanded the issue of unit measurements to the AO for further examination. The Revenue's appeal was dismissed, and the Assessee's appeals were partly allowed for statistical purposes. The order was pronounced in the Open Court on 26th April 2018.