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TMI Blog2014 (10) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, they have merged the flats/unit and that is beyond the control of the Assessee, the Tribunal has not held that these facts are admitted or that there is no dispute about the same - the Tribunal referred to the construction projects, the flats in dispute and certain findings so also the admission by the Assessee in survey proceedings - If the disputed flats were identified by the parties, their position and situation at site should have been elaborately referred including the statements which have been recorded during the course of survey proceedings - The documents, namely, agreements in relation to these flats should have been referred in extenso by the Tribunal - That having not been done, any expression of opinion on the legal questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s flats purchased by one buyer is only one residential unit having builtup area of more than 1000 sq.ft. The Assessee argued that the Commissioner failed to appreciate that two contiguous flats purchased by one buyer are separate residential units constructed in the building/project having built up area of less than 1000 sq.ft., and therefore, all conditions under Section 80IB (10) were satisfied by the Appellant. The deduction, therefore, should have been allowed and these are the grievances noted in paragraph no.2 of the order under Appeal and which are raised by the Assessee. 4. At the same time, the Revenue raised two grievances as is clear from paragraph no.3 of the order, namely, the facts and the circumstances and law does not jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be entertained. Even otherwise, the view taken by the Coordinate Bench of the Tribunal in Vandana Properties(supra) was challenged before this Court and a Division Bench decided the matter in favour of the Assessee and against the Revenue. The judgment of the Division Bench is reported in (2013) 353 ITR 36. 9. This question, therefore, need not detain us and the Appeal to that extent is dismissed. 10. Insofar as the first question and framed as substantial question of law, the same reads as under: Whether on the facts and circumstances of the case and in law the Hon'ble Tribunal erred in holding that deduction u/s.80IB (10) of the Income Tax Act, 1961 was allowable even when the relevant housing project had contiguous resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No.3647, 3648/Mum/2009. It is only the order of the Coordinate Bench which has influenced the decision of the Tribunal in the present matter. 13. We find substance in the complaint of Mr. Gupta, though Mr. Pardiwalla would support the Tribunal's order on the footing that the case of the present Appellant is on par with Emgeen, what we find is that the Tribunal has rendered a cryptic finding. It is not an elaborately reasoned order as could have been expected from the last fact finding authority. If the argument was that in each of the project/building the flats having less than 1000 sq. ft. area have been sold by separate agreements, may be to the members of the same family and consequent to the purchase by such members, they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80IB(10) of the I. T. Act on the proportionate basis even if the building or area exceeding 1,000 sq.ft. stands restored to the file of the Tribunal in the respective Appeals. Thus, the Appeals, will now have to be decided by the Tribunal after hearing both sides and uninfluenced by the findings and conclusions in the order under challenge which we have set aside today. The Tribunal, now, must assign independent reasons with regard to the Revenue's grievance as also the grievances of the Assessee. Let, the Tribunal do this exercise and complete it within a period of three months from the date of receipt of copy of this order. We clarify that we have not expressed any opinion on the merits of the matter and all contentions are kept open. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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