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TMI Blog2013 (1) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 80IB(10) originally in the year 2005-06 and also in this year. AO disallowed the claim on the reason that the plot of area is less than 1 acre and some of the built up area of the residential units is more than 1500 sq. ft and the project was not completed before 31.03.2008, same reasons as in earlier year. In assessment year 2005-06, the learned CIT (A) analyzed assessee's contention and allowed the claim on which Revenue came up in appeal. This issue was decided by the ITAT vide order No. 5404/Mum/2008 dated 12.01.2011. The learned CIT (A) in this year, following his predecessors' order and also relying on the orders of the ITAT Mumbai in assessee's own case for assessment year 2005-06 allowed the claim of assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea was also added to the building. Therefore, that objection was not sustained by the CIT (A) in A.Y 2005-06 and the Department has not challenged. The same was also noted by the ITAT in the order. 4. We have considered the rival submissions and perused the record of the case and the order of the ITAT in assessee's own case in A.Y 2005-06. All the objections raised by the Revenue were duly considered in that order from Paras 6 7 which is as under: 6. We have considered the rival submissions and perused the record of the case. The main issue is regarding fulfillment of conditions laid down u/s.80IB(10) for claiming deduction in respect of profits and gains derived by an undertaking carrying on business of developing and buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n open space is however part of the plot and though for the purpose of municipal regulations, a portion of the plot has to be reserved as a recreation area but for the purpose of clause (b) of section 80IB(10), the recreation area has also to be considered as part of the plot only. 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. meters is added to the total plot area of 3597.91 sq. meters, it gives an area of 4189 sq. meters 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject was not completed before 31-3-2008 as per the requirements of sec. 809IB(10)(a)(i). From the facts noted earlier and also as admitted by the assessee before the ld. CIT(A), there is no dispute that Building No. 3 could not be completed before 31-3-2008 on account of litigation going on with respect to the same. The assessee's claim is that proportionate deduction should be allowed in view of various decisions relied upon by the assessee, whereas the department's contention is that since the very basic condition has not been fulfilled, therefore, the deduction cannot be allowed. We will first consider the facts of various decisions relied upon by the ld. counsel. 6.1 In the case of Bengal Ambuja Housing Development Ltd.(su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were that the assessee formed a single project by name 'Brigade Millennium' comprising a total area of 22 acres and 19 guntas in Survey Nos.44, 45 and 51/1 of Bangalore South Taluk. This macro project comprised certain housing blocks, community hall etc. as its micro components. It comprised, among other things, 5 residential blocks by name Mayflower, Cassia, Magnolia, Jacaranda and Laburnum. Approval had been obtained from BDA on 24-5-2002. The assessee took two blocks separately, viz., Mayflower and Cassia, and claimed the benefit of deduction u/s.80IB of the Act in respect of the said two blocks, claiming them to be separate projects, as only the said two blocks could fulfill the requirements prescribed u/s.80IB of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in the case of Brahma Associates vs. Jt. CIT (2009) 119 ITD 255, held that deduction could not be totally denied and it would be eligible for proportionate deduction. 7. In all the above decisions, deduction u/s.80IB was denied as some of the residential units exceeded the limit of 1500 sq. ft. as laid down u/s.80IB(10)(c). However, in the present case, the deduction has been denied, inter alia, on the ground that the project could not be completed before 31-3-2008. It is not disputed that this condition has not been fulfilled. Now, in the light of the aforesaid decisions, we have to consider what would be the consequences of the project being not completed by 31-3-2008. This is the basic condition for allowability of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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