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TMI Blog2010 (2) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... ous year, the assessee carried out the construction work of 'Umiya Complex' project on plot no. S.No.182/3 & 114/6/1 at Titwala, Kalyan Taluk. It credited work-in-progress of Rs. 75,12,000/- in the trading and profit and loss account and arrived at a net profit of Rs. 11,53,650/- which was claimed as a deduction under section 80IB(10). This section provides for deduction from the profits of an undertaking which develops and builds housing projects approved by a local authority. The entire profits of such undertaking has been granted exemption from the income tax subject to fulfilment of several conditions. One such condition is that the housing project should be on the size of plot of land which has a minimum area of one acre. This conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. On appeal, the CIT(A) agreed with the view taken by the Assessing Officer. He further took the view, in the course of the appellate proceedings, that the project was not in a plot of land which had a minimum area of one acre and that for this reason also the assessee was not entitled to the deduction. This point was raised by the CIT(A) for the first time, though it was not raised by the Assessing Officer. According to the CIT(A), though the total area of the plot was 4600 sq. metres, the area of 656.75 sq. metres had to be excluded for the D.P. Road and if this is excluded, the size of the plot would be reduced to 3943.25 sq.metres, which is less than one acre (one acre equals 4050 sq. metres). In this view of the matter, he held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1999, the chart showing the details of area of 'Umiya Complex' Phase I and Phase II, approved & amended plans for these phases, the completion certificates, correspondence with Kalyan-Dombivli Mahanagar Palika, which is the approving authority, the area diagrams, diagrams of the plots etc. in the form of paper book which have been considered by us. The point sought to be made on the basis of these papers is two fold - (a) that the assessee as well as the approving authority have considered the entire project of 'Umiya Complex' as one single project though it had as many as 15 buildings constructed in different phases; and (b) that the size of the plot is not less than 4050 sq. metres as erroneously calculated by the CIT(A). 5. So far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated on a consolidated basis as is shown in the schedule of property thereto. It is further seen from this deed that the total cash consideration, taking both the plots together, paid by the assessee was Rs. 5 lakhs in addition to constructed area admeasuring 19,000 sq.ft. in the buildings to be constructed over the entire land. Thus both the plots were purchased by the assessee under a single deed and were also dealt with on that basis. So far as the precise point raised by the CIT(A) is concerned, it is seen from page 66, which is a copy of the communication dated 20.09.2003 sent by Kalyan- Dombivli Mahanagar Palika that it mentions the size of the plot as 4600 sq.metres only. The communication dated 29.6.2000 (page 63 of the paper bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. There is no condition in the clause that recreation area has to be excluded while examining whether the plot is of the size of one acre or less. If the recreation area of 591.49 sq. metres is added to the total plot area of 3597.91 sq. metres, it gives an area of 4189 sq. metres which is the size of the plot. The total plot area has been arrived at by MNP 3597.51 only for the purpose of calculating the permissible FSI. The permissible FSI as per column 9 of the area statement is one, which means that the assessee can build 3597.91 sq.metres in the said plot. However, for the purpose of clause (b) of section 80IB(10), the plot area has been taken at 4189 sq. metres, if not at 4600 sq. metres, even on this basis, the size of the plot is mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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