2021 (12) TMI 410 - HC - Income Tax

Deduction u/s 80IB(10) for its profits derived from sale of residential units - separate sales to the same buyer of two separately situated independent residential units - AO considered the said claim and rejected the same holding that the embargo placed under Section 80IB(10) would stand attracted as the area of the residential complex exceeds 1500 sq. ft. - ITAT also denied deduction - Whether the built up area of the two independent residential units can be clubbed merely because one of the units is for the residence of the servants and the purported findings of the Tribunal denying deduction of ₹ 4,05,48,257/- under Section 80IB(10) of the Income Tax Act, 1961 are arbitrary, erroneous, unreasonable and perverse? - HELD THAT - The argument advanced by the assessee before the Tribunal as has been advanced before us by the learned Senior Counsel for the appellant assessee with regard to the fact that two units were separate and thereby separate documents in respect of the sale, was considered by the Tribunal and a factual finding has been recorded by the Tribunal that the utility rooms/servants quarters cannot be sold independently to any other person other than the flat owner to whom the said servant quarters is attached - Tribunal concluded that it is of absolutely no relevance whether servant quarters documentation has been made by a separate conveyance deed or by way of a separate letter to the concerned flat owner and the substance of the transaction needs to be seen than its form - Tribunal also noted the facts which are brought on record by the AO in respect of the various sales which have been done by the appellant assessee and concluded that it is not in dispute that while taking into account inner measurement of the 73 residential units plus the respective servants quarters, the total extent exceeds 1500 sq. ft. thereby violating Section 80IB(10)(c). Thus, it rejected the case of the assessee. Considering the findings recorded by AO, the first appellate authority and the Tribunal, we find that the matter is entirely factual and the documents have been gone into and on our part also we have examined the Indenture of Conveyance dated 20th September, 2010 executed by the assessee in favour of the purchaser, which clearly shows that prior to the execution of conveyance deed there were agreements entered into between the parties which will go to show that the utility rooms/servants quarters forms integral part of the residential flat. No substantial question of law - Appeal dismissed.

Summary

Issues:
1. Deduction under Section 80IB(10) of the Income Tax Act, 1961 for separate sales of two residential units.
2. Clubbing of built-up area of independent residential units due to one unit being for servants' residence.

Analysis:
1. The appellant, engaged in real estate projects, claimed deduction under Section 80IB(10) for profits from the sale of residential units in the assessment year 2009-10. The Assessing Officer rejected the claim as the residential complex's area exceeded 1500 sq. ft. The appellant contended that utility area is a separate unit and should not be included in the housing area. The Commissioner of Income Tax (Appeal) upheld the rejection, stating that utility rooms cannot be treated as separate units. The Tribunal noted the sale of flats and utility rooms exceeding 1500 sq. ft., concluding that the utility rooms were essentially servants' quarters and not independently sellable. The Tribunal rejected the appellant's argument of separate units based on the substance of the transaction, not its form.

2. The Tribunal considered the agreements and conveyance deeds between the parties, finding that utility rooms were integral parts of the residential flats. The Court, after examining the conveyance deed, affirmed the lower authorities' findings, stating that no substantial questions of law arose. The Court dismissed the appeal, emphasizing that the utility rooms were not independent units and formed part of the residential flats, leading to the violation of Section 80IB(10)(c). The dismissal of the appeal also resulted in the connected application being dismissed.