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TMI Blog2017 (1) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... ing and in view of the concession of the learned Authorized Representative for the assessee, we decide this issue against the assessee. - ITA No. 1835/PUN/2014, ITA No.1748/PUN/2014 - - - Dated:- 5-1-2017 - Ms. Sushma Chowla, JM And Shri Anil Chaturvedi, AM Assessee by : Shri Mehul Shah Revenue by : Shri P.L. Kureel ORDER Per Sushma Chowla, JM The cross appeals filed by the assessee and the Revenue are against order of CIT(A)-II, Pune, dated 28.05.2014 relating to assessment year 2010-11 against the order passed under section 143(3) of the Income Tax Act, 1961 (in short the Act ). 2. The cross appeals filed by the Revenue and the assessee were heard together and are being disposed of by this consolidated order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntial units with commercial user to the extent permitted under the DC Rules/Regulations framed by the respective local authority only upto 31.03.2005. 4. The learned Commissioner of Income-tax (Appeals) erred in failing to appreciate that the ITAT, Special Bench, Pune in its decision in the case of Brahma Associates for the A.Y.2003 -04 had held beyond any confusion that the position with effect from assessment year 2005-06 would be different in view of the specific restriction brought into effect by Section 80IB(10)(d) which provides that the commercial use of built up area shall not exceed 2000 sq.ft or 5% of the aggregate built up area, whichever is less. 5. The learned Commissioner of Income-tax (Appeals) erred in failing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of project 'Brahma Avenue' it was clearly stated that it was a revised layout and, moreover, there was no separate layout plan or building plan approved by the Pune Municipal Corporation for the project 'Brahma Avenue'. 10. The learned Commissioner of Income-tax (Appeals) erred in failing to appreciate that as the Brahma Avenue project is merely an extension of Brahma Estate project, which had been given approval on 06.10.2000, construction of the Brahma Avenue project ought to have been completed before 31.03.2008 and in view of the assessee's failure to complete construction before the above stipulated date, the assessee was not entitle to deduction u/s.80IB(10) on the profits derived from the project 'Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the remand proceedings by the Assessing Officer and consequently the decision of the CIT(A) based on such inconclusive evidence was incorrect. 15. The learned Commissioner of Income-tax (Appeals) erred in allowing assessee's claim of deduction u/s.80IB(10) of the Act accepting the asssessee's version that Shri. Ashish Ghai (Flat No.A-2/303) and Shri.S.C.Sharma (Flat No.A-1/902) were the tenants, when in the statements recorded in the course of assessment proceedings these persons had affirmed to be the owners and to have purchased the flats from the assessee. 5. The learned Authorized Representative for the assessee at the outset pointed out that the issue arising in both the appeals is squarely covered by the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Act and consequently, the assessee was held to be not eligible for the claim of deduction under section 80IB(10) of the Act. In this regard, the Assessing Officer also referred to the decision in assessee s own case in earlier years in respect of each of the project. Further, the Assessing Officer noted that there was merger of flats and consequently, the total built up area exceeded the limit provided and hence, the assessee was held to be not entitled to the claim of deduction under section 80IB(10) of the Act in respect of all the projects. The independent findings of Assessing Officer in respect of each of the project and the same are discussed in the assessment order. Further, the Assessing Officer noted that the assessee had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that the Assessing Officer and CIT(A) had followed the ratio laid down in earlier years in order to deny the said claim to the assessee. 12. The learned Departmental Representative for the Revenue supported the order of CIT(A) in this regard. 13. We have heard the rival contentions and perused the record. The issue arising in the present appeal is squarely covered by the order of Tribunal vide para 8.1 at page 40, wherein it has been held that the assessee was unable to demonstrate that the receipt of income was derived from and was part of business receipts in order to enable it to claim deduction under section 80IB(10) of the Act. Following the same parity of reasoning and in view of the concession of the learned Authorized Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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