2019 (5) TMI 677 - AT - Income Tax

Deduction u/s 80IB(10) on pro rata basis in respect of Kumar Shantiniketan projects - as noticed that the flats bearing Nos.3 and 4 at D Building with garden area of 236.03 sq.ft and the garden area was not considered in that built up area of the flats - AO had observed that if the garden area was included in the built up area then the maximum permissible built up area would exceed the mandatory requirement prescribed u/s 80IB(10) accordingly denied the claim of deduction u/s 80IB(10) - HELD THAT - As decided in assessee's own case 2013 (11) TMI 465 - ITAT PUNE and 2017 (1) TMI 1663 - ITAT PUNE deduction u/s.80IB(10) was to be allowed on prorata basis with reference to qualifying residential units and assessee would not be denied claim for deduction u/s.80IB(10) if some of its residential units are of built up area exceeding prescribed limit in clause (c) of section 80IB(10) of the Act In view of the above decisions, in the present case it is held that whatever portion completed by the assessee which satisfies the conditions prescribed u/s.80IB(10) is eligible for deduction - Decided in favour of assessee.

Issues Involved:
1. Deduction under Section 80IB(10) of the Income Tax Act.
2. Pro rata basis deduction for qualifying residential units.
3. Inclusion of garden area in the built-up area calculation.
4. Determination of independent housing projects for tax deduction purposes.

Detailed Analysis:

1. Deduction under Section 80IB(10) of the Income Tax Act:
The primary issue in both appeals concerns the deduction claimed by the assessee under Section 80IB(10) of the Income Tax Act for the project "Kumar Shantiniketan." The Assessing Officer (AO) initially denied the deduction on the grounds that the built-up area of two flats exceeded the stipulated 1500 sq. ft. limit when including the garden area, thus violating the provisions of Section 80IB(10). This led to the reopening of the case and reassessment, resulting in the denial of the entire deduction claim.

2. Pro rata basis deduction for qualifying residential units:
The Commissioner of Income Tax (Appeals) [CIT(A)] allowed the deduction on a pro rata basis, referencing the Tribunal's earlier decisions in the assessee's own case for the assessment years 2008-09 and 2009-10. The Tribunal had directed that the deduction should be allowed proportionately for the qualifying residential units and restricted only for those units where the built-up area exceeded the prescribed limit. The CIT(A) followed this precedent and directed the AO to rework and allow the deduction accordingly.

3. Inclusion of garden area in the built-up area calculation:
The AO had observed that the garden area was not included in the built-up area calculation for certain flats, which, if included, would exceed the 1500 sq. ft. limit. This was a key point of contention leading to the denial of the deduction. However, the CIT(A) and the Tribunal, following previous decisions, concluded that the inclusion of garden area should not result in the denial of the entire deduction but should be considered for pro rata deduction.

4. Determination of independent housing projects for tax deduction purposes:
For the assessment year 2012-13, the issue extended to another project, "Kumar Kruti," which the AO considered part of a larger project, "Kumar City," thereby denying the deduction due to non-completion by the stipulated date and exceeding the permissible built-up area for some units. The CIT(A) and the Tribunal, however, determined that "Kumar Kruti" was an independent project based on the separate sanctioning of its building plan, despite being part of a common layout. This distinction allowed for the deduction to be claimed independently for "Kumar Kruti," following the same pro rata basis for eligible units.

Conclusion:
The Tribunal upheld the CIT(A)'s order, allowing the deduction under Section 80IB(10) on a pro rata basis for both "Kumar Shantiniketan" and "Kumar Kruti" projects. The Tribunal found no reason to interfere with the CIT(A)'s decision, as it was consistent with earlier Tribunal rulings and no contrary evidence or higher judicial authority's decision was presented by the Revenue. Thus, the appeals filed by the Revenue were dismissed, affirming the pro rata deduction approach for qualifying residential units and recognizing the independent status of the "Kumar Kruti" project for tax deduction purposes.

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