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TMI Blog2016 (7) TMI 446X X X X Extracts X X X X X X X X Extracts X X X X ..... Kapil Malhar Intelligent Home would be revenue neutral as regular tax liability is less than tax paid on the book profit. Assessee has not filed any specific submission or details for Tower T2 and T3 regarding the claim made for 80IB of the Act. Since the eligible deduction would be tax neutral the adjudication of balance amount becomes mere academic in nature and same was not directed. Above reasoned finding of CIT(A) needs no interference from our side, whereby CIT(A) has allowed the claim of assessee as discussed above. Same is upheld. X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Respondent assessee under section 80IB [10] of the Income-tax Act, 1961 (hereinafter said the "Act"). The learned C.I.T.[A] has grossly erred in disallowing the deduction in respect of profits arising on sale of Units in Towers T2 and T3 on the alleged ground that all the tenements did not comply with the statutory requirements. The aforesaid finding being arbitrary, perverse, and devoid of merits the same may please be vacated. 2. The learned CIT(A) has erred on facts and in law in confirming the disallowance of claim u/s 80IB(10) of ₹ 1 70,09,616/- in relation to the Tower T2 and Tower T3 of the Kapil Malhar Intelligent Home Project on the grounds that some of the units of the Housing Project have a built-up area exceeding 1500 sq.ft. 3. The learned CIT(A) erred in not accepting the Respondent Assessee's claim that the Respondent Assessee is entitled to claim deduction under section 80IB of the Act on proportionate basis in respect of units having built-up area not exceeding 1500 sq.ft. in relation to the Tower T2 and Tower T3 of the Kapil Malhar Intelligent Home Project." 4. Assessing Officer observed from the computation of total income that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 1,44,91,313/- u/s.80IB(10) of the Act being eligible profit u/s.80IB of the Act. CIT(A) observed from the above that sole reason for denying the deduction u/s.80IB of the Act is that the entire project of assessee is not yet complete in this regard and deduction cannot be given on proportionate basis. Assessing Officer placed reliance on ITAT Chennai Bench in case of M/s. Viswas Promoters Pvt. Ltd. 126 ITD 263. The said decision has been reversed by Hon'ble Madras High Court in M/s. Viswas promoters (P.) Ltd. Vs. ACIT - T.C. (Appeal) Nos. 1014 of 2009, 857 of 2010 & 190 to 192 of 2012, W.A. No.471 of 2010, M.P. Nos. 1,1,1,2 and 2 of 2012 dated November 2, 2012 wherein issue has been decided in favour of assessee. 7.1 As far as assessee's entitlement on proportionate basis u/s.80IB(10) of the Act is concerned, Hon'ble Bombay High Court in case of M/s. Vandana Properties in Appeal No. ITA 3633 of 2009 held as under: "Facts The assessee had constructed buildings A, B, C and D over a period of many years on a plot 01 land, admeasuring 2.36 acres situated at Kandivali (West), Mumbai. Pursuant to an order passed by the State Government in the year 2001 permitting conversio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one acre. It was held that on a plot of land having minimum area of one acre, there can be any number of housing projects and so long as those housing projects are approved by the local authority and fulfil the conditions set out under Section 80IB (10), the deduction there under cannot be denied to all those housing projects. The assessee subject to fulfilling other conditions becomes entitled to Section 80IB (10) deduction on construction of a housing project on a plot having area of one acre, irrespective of the fact that there exist other housing projects or not Accordingly High Court held that the deduction u/s 80IB should be allowed." 7.2 CIT(A) also discussed the decision of ACIT vs. Bengal Ambuja Housing Development Ltd. and other decisions, wherein similar issue has been decided in favour of assessee and considering the same, CIT(A) observed that area of project is more than one acre and the flat in building T1 is less than 1500 sq. feet. The definition of 'housing project' u/s.80HHBA of the Act, to mean the construction of 'any building' and going by the deduction available u/s.80-IB of the Act to be hundred percent of the profits derived in previous year relevant to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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