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TMI Blog2019 (4) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly directed the AO to disallow the claim of deduction on pro-rata basis of the two flats and allow the claim of deduction on the balance amount. No new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld. CIT(A). Therefore, there are no reasons for us to interfere into or deviate from the findings so recorded by the Ld.CIT(A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, this ground raised by the revenue stands dismissed. - I.T.A. No. 4148 & 4149/Mum/2017, Cross Objections No. 292 & 293/Mum/2018 - - - Dated:- 12-2-2019 - Hon ble Sh. Shamim Yahya, AM And Hon ble Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had violated the provisions of section 80IB(10)(e) and 80IB(10)(f) of the I.T. Act. 6. We have heard Ld. DR and we have also perused the material placed on record as well as the orders passed by revenue authorities. We find from the record that Ld. CIT(A) had decided this ground in para no. 4 and 5 of its order and the relevant portion is contained in para no. 5, which is reproduced below:- 5.0 Ground Nos..1 and 2 are directed against the disallowance of deduction claim of ₹ 96,53,292/- u/s 80IB(1), therefore, both the grounds are taken together for the sake of convenience. (i) In this case, the AO disallowed the entire claim of deduction of ₹ 96,53,292/- u/s 80IB(10) in view of the provisions of section 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments. (iii) After considering the totality of the facts of the case, I am of the opinion that the assessing officer is not correct in disallowing the entire deduction claimed u/s.801B(10) of the Act and therefore, the is directed to disallow the claim of deduction to the extent of two flats i.e. 603 604 at Florantina sold to the same persons as co-owners/joint owners on the following grounds:- (a) The appellant has fulfilled all the conditions as prescribed in section 801B(l0) of the Act except that the two flats Le. 603 604 at Florantina were sold to the same persons as co-owners/Saint-owners. b) There are various court's decision including jurisdictional, which held that the deduction has to be disallowed on propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 A.Ys. 2003-04 to 2006-07, ITAT Bench 'H' , Mumbai order dated 3rd June, 2011 has held that the proportionate deduction is allowable by placing reliance of the decision of 'J' Bench of the Tribunal in ITA No. 3649/Mum/2009 dated 20.5.2011 held as follows: iii)The Nagpur Bench of this Tribunal in AIR Developers (supra), held as follows:- Therefore, A. 0. is directed to determine the built-up area of the residential units by applying the Development Control Regulation, 2000, and to allow proportionate deduction under section 801410) if he finds that the built-up area of some of the residential units exceeds 1,500 sq.ft. iv) Bangalore Bench of this Tribunal in DCIT v/s Brigade Enterprises Pvt. Ltd., has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A) by reversing the order of the A.O. v) Bangalore A Bench of this Tribunal in SJR Builders (supra), held that merely because some flats are larger than 1,500 sq.ft. the assessee will not lose the benefit in its entirety but only with reference to the flats which has more than prescribed built up area, the assessee will lose the benefit . vii) Thus . viii) We now examine the applicability of the decision of the Honible Bombay High Court in Brahma Associates (supra) to the facts of this case. On a careful reading of this judgment, we find that nowhere it is stated that proportionate deduction should not be allowed, in case certain residential units had built up area in excess of prescribed limit of 1,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eduction on the balance amount. Accordingly the appeal of the appellant on this ground is partly allowed. 7. After having gone through the facts of the present case as well as orders passed by the revenue authorities, we find that Ld. CIT(A) had decided this ground in favour of assessee by relying upon the various judgments of Jurisdictional ITAT mentioned in its order and also the orders in assessee s own case for AY 2012-13 in appeal No. 19/Thn/2015-16, wherein the claim of deduction had been allowed on pro-rata basis. Even during the year under appeal, the assessee had sold two flats and had worked the proportionate disallowance. Hence, Ld. CIT(A) had rightly directed the AO to disallow the claim of deduction on pro-rata basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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