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TMI Blog2015 (10) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... ea is 1500 sq.ft or less. We affirm the order of the Commissioner of Income Tax (Appeals) on this issue and reject the grounds of appeal raised by the Revenue. - Decided in favour of assessee. - ITA No. 1275/Mds/2012 - - - Dated:- 31-10-2014 - A. Mohan Alankamony, AM And Challa Nagendra Prasad, JM,JJ. For the Petitioner : Mr S Das Gupta, JCIT For the Respondent : Mr S Sridhar, Adv. ORDER Per: Channa Nagendra Prasad,JM. This appeal is filed by the Revenue against the order of the Commissioner of Income Tax (Appeals), Tiruchirapalli dated 21.03.2012 for the assessment year 2008-09. The only issue in the appeal of the Revenue is that Commissioner of Income Tax (Appeals) failed to consider that the completed housing pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing so, the Tribunal observed as under:- 10. In assessment year 2006-07, the sole issue involved in the appeal of the Revenue is that the ld. CIT(A) erred in allowing deduction u/s 80IB(10) of the Act to the assessee even though the housing project did not satisfy the condition which mandates that each residential unit should not exceed built-up area of 1500 sq ft. 11. The brief facts of the case are that the assesseecompany, during the year under consideration, constructed 52,099 sq ft of built-up area out of which deduction u/s 80IB(10) was claimed on the built-up area of 18,129 sq ft. The assessee-company had shown net profit of ₹ 48,34,827/- for the assessment year under consideration for the total built-up area of 52,099 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up area comprises of apartments below 1500 sq ft. The assessee's net profit was of ₹ 48,54,827/- on the total built-up area of 52,099 sq ft. The assessee claimed deduction u/s 80IB(10) which is only on the built-up area of 18,129 sq ft which comprised of apartments below 1500 sq ft and thereby made a proportionate claim for deduction u/s 80IB(10) of ₹ 16,82,411/-. The Assessing Officer denied the claim of deduction to the assessee observing that section 80IB(10) does not consider proportionate disallowance. 17. On appeal, the ld. CIT(A), following the decision of the Hon'ble Calcutta High Court in the case of Bengal Ambuja Housing Development Ltd. (supra) allowed the claim of the assessee. 18. The ld. DR very fairl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left unsold. 30. In the background of these facts, the risk factors, as projected by the assessee accepted by the Tribunal, needs to be seen. Under Clause 4 of the agreement, the assessee was to collect a sum of ₹ 600/- per sq.ft. on super built-up area for the sale of undivided share of land transferred to the buyer. The said clause also fixes the ceiling as to the consideration, which would be paid to the owner, namely, at ₹ 11,51,94,000/-. The clause in the agreement further pointed out that the builder has to enter into a builder agreement with the proposed purchaser and it is open to the builder to fix such rate per square foot for construction of the area as it deems fit, over which the owner has no claim at all. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction under Section 80IB(10) in depth and accepted the case of an assessee similarly placed. It held that the provisions no where require that developers who are the owner of the land alone would be entitled for grant of deduction under Section 80IB(10). Going through the decision of the Gujarat High Court, we have no hesitation in holding that we are in respectful agreement with the law declared by the Gujarat High Court. 20. Respectfully following the above decision of the Hon'ble Madras High Court, we do not find any infirmity in the order of the ld. CIT(A) which is confirmed and the grounds of appeal of the Revenue are dismissed. 5. Respectfully following the above decision of this Tribunal, we direct the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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