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TMI Blog2013 (6) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... at And Shri T. R. Meena,JJ. For the Petitioner : Shri A. Tirkey, Sr. D.R. By Revenue For the Respondent : Shri S. N. Soparkar, A.R. ORDER Per : T. R. Meena, Accountant Member These are three appeals filed by assessee, which have emanated from the orders of CIT(A)-II, Baroda, dated 27.01.2012 for A.Y. 2004-05, 2005-06 2008-09. These three appeals were heard together and are being disposed of by way of this common order for the sake of convenience. The sole ground of appeal is against not allowing the claim of deduction u/s. 80IB(10) of the IT Act in all the years. Remaining grounds are consequential to the above addition. 2. Ld. A.O. passed order u/s. 143(3) r.w.s. 254 of the IT Act. In A.Y. 2004- 05, ITAT vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land is taken by the assessee from the land owner. Though no formal sale deed had been executed between them. The agreement developing of the dwelling units has been executed as a confirming party by the assessee. The appellant is responsible for the cost and risk involved in the development project. All expenses on construction had been borne by the appellant. Arrangement for sale of unit in the project is also undertaken by the assessee. But the residential built up area was found less than 90% and commercial built up area is more than 10%. By considering the Special Bench decision of Brahma Associates (supra), he has not allowed the deduction u/s.80IB(10). 2(ii). In Assessment Year 2008-09, the ld. A.O. passed order u/s. 143 (3) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hma Associates. In the above case, Hon'ble Mumbai High Court has held that before 01.04.2005, the deduction u/s.80IB(10) will be allowable even to projects which have both residential and commercial segments, if the residential part of the project complies with all the requirements of section 80IB(10), on a standalone basis. As is discussed in the following points, the residential part of the project in question does not satisfy all the conditions of 80IB(10). Hence no deduction is allowable. For determining whether the residential part of the project satisfies the conditions for allowance of deduction u/s.80IB(10) on stand alone basis, the land area proportionate to residential flats has to be seen. Total FSI permissible - both commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (4047 sq. mt.), which does not satisfy the condition of eligibility for deduction u/s 80IB(10), on stand alone basis. Even if we deduct just the sanctioned built up area under commercial construction from the total plot size, the result would be 3924.78 sq.mt. [4271.30 (-) 346.52 sq. mt.] which also is less than 1 acre. Hence the assessee has failed to satisfy the vital condition for grant of deduction u/s. 80IB(10) on stand above basis as stipulated in the decision in the case of Brahma Associates delivered by Pune Tribunal Special Bench as well as that delivered by Hon'ble Bombay High Court." Identical findings have been given by the ld. CIT(A) for A.Y. 05-06 except various case laws discussed in this year. In A.Y. 08-09, the CIT(A) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther argued that assessee's project was approved in 2001 and in March, 2004 for which he filed the paper book. Therefore, he requested to allow the deduction u/s.80IB(10) in all the years. At the outset, ld. Sr. D.R. vehemently relied upon the order of the CIT(A) A.O. and prayed to confirm the addition. 5. We have heard the rival contentions and perused the material on record. The assessee had fulfilled all the conditions of Section 80IB(10) and amendment made in Clause (d) as held by the Hon'ble Gujarat High Court in case of Mannan Corpn. Vs. ACIT (supra) is not applicable on the project approved by the competent authority before 01.04.2005 by which certain riders for deduction has been imposed by the legislature. Therefore, we have c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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