2015 (1) TMI 818

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..... ied the other condition, namely, project is on the size of the plot of a land which has a minimum area of one acre. Therefore, it does not affect the condition and section 80IB(10) benefit or deduction cannot be denied on that score. The Tribunal approved the finding of Commissioner of Income Tax. The Tribunal itself notes as to how the area crossed the limits only at the time of sale, that is, when the buyer requested the developer to alter the area and by either withdrawing or adding a portion from adjacent flats. The Developer adhered to the mandatory condition of the Construction not exceeding one thousand square feet whole completing the developmental work. In such circumstances, and when a finding rendered against the Assessee has .....

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..... ave an area less than one thousand sq. ft. However, admittedly, two flats in the project, namely, flat B103, B903 exceeded one thousand sq. ft. This was the detail which was available with the Assessing Officer. The Assessing Officer and the Commissioner both held that the Assesee had constructed these two flats with more than thousand sq. ft. area. Hence the requirement under section 80IB(10) is not fulfilled. 3. Mr. Mistry, learned Senior Counsel, has relied upon the finding of the Commissioner and the Tribunal on this point. Both referred to the location and number of the flats and go ahead to term the construction of these flats as beyond the permissible limit of thousand sq.ft. However, the Tribunal concluded that the area of the fl .....

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..... nding rendered against the Assessee has been upheld by the Tribunal, then, all the more we do not see any substantial question of law. The matter has already been looked at by us in the context of a similar controversy and arising from determination and consideration in the case of Commissioner of Income Tax V/s. Happy Home Enterprises and Commissioner of Income Tax V/s. Kanakia Spaces (P) Ltd. in Income Tax Appeal No.308 of 2012 decided on 19th September, 2014. The Division Bench to which one of us (Shri S. C. Dharmadhikari, J.) was a party held in similar circumstances that the crucial or relevant date is the date on which the construction has been carried out and completed. If the construction is comprising of flats having more than the .....

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