9911796707
TMI Blog2014 (7) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... 0IB of the Income Tax Act, 1961 (herein after referred to as 'the Act'), to the assessee on pro-rata basis. 2. The facts as emanating from the records are: The assessee is engaged in the business of construction and sale of apartments. A survey u/s.133A of the Act was conducted in the business premises of the assessee No.20, Anderson Street, Ayanavaram, Chennai, its branch office at Siruvallur Road, Perambur, company's godown at Madhavaram and site office at Prince Gardenia, Chennai. Simultaneously, search operations were carried at the residence of the Managing Director of the Company Shri A.Anthony Rajarathinam on 27-02-2008. Notice u/s.153C of the Act was issued to the assessee on 22-07-2009. In pursuance to the notices for the AYs und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court of India. Thus, the issue has not attained finality. The ld.DR further submitted that the CIT(Appeals) has erred in allowing deduction u/s.80IB to the assessee on pro-rata basis. 4. On the other hand, Shri A.S.Sriraman, Advocate appearing on behalf of the assessee submitted that the entire housing project has been constructed as per the approved plans. The only violation as alleged by the Department is excessive coverage of commercial area. As per the provisions of section 80IB, the maximum area to be utilized for commercial purpose in housing project is 2000 sq. ft. In case of assessee, there has been marginal excessive use of the area i.e., 3906 sq. ft. Moreover, the said area is used as crèche, for the benefit of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... housing project under consideration, the area allocated for commercial purpose is 3906 sq. ft. As per the contentions of the assessee, the area allegedly marked as commercial area, is in fact a common area to be used as crèche by the residents of the housing project. The area is not for the benefit of general public but for the exclusive use of the flat owners alone. During the course of making submissions, ld.Counsel has placed reliance on the decision of the judgment of the Hon'ble Madras High Court in the case of CIT Vs. Arun Excello Foundations P. Ltd., (supra) wherein the Hon'ble Court has held that, where there is a partial compliance, deduction u/s.80IB(10) is allowable on pro-rata basis where both commercial and residenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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