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TMI Blog2019 (4) TMI 1678X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of the units not exceeding area of 1000 sq.ft. also - HELD THAT:- Both the projects were independent from the original housing project where only 4 buildings were envisaged. The additional building called Devpriya and Kores Nakshatra were designed, envisaged and constructed later. There is no breach of the condition of Section 80IB(10) which required commencement of construction only after 01/10/1998. Merely because local authority had imposed conditions in relation to Devpriya as were originally imposed in case of earlier 4 residential buildings, would not necessarily mean that this was an extension of the existing project. In relation to the breach of condition of the units not exceeding area of 1000 sq.ft. also, we find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one member. ITAT was justified in allowing deduction u/s 80IB(10) of the Income Tax Act, 1961 to the assessee in respect of the Kores Towers project - INCOME TAX APPEAL NO.78 OF 2017, INCOME TAX APPEAL NO.93 OF 2017, INCOME TAX APPEAL NO.271 OF 2017, INCOME TAX APPEAL NO.285 OF 2017, INCOME TAX APPEAL NO.378 OF 2017 - - - Dated:- 23-4-2019 - AKIL KURESHI SARANG V. KOTWAL, JJ. Mr. Tejveer Singh for Appellant. Mr. Firoze Andhyarujina, Senior Advocate a/w Mr. Sameer Dalal for Respondent. P. C. : 1. These Appeals arise in the common background. They have been heard together and would be finally disposed of by this common order. For convenience, we may record facts from Income Tax Appeal No.78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act, 1961 to the assessee in respect of the Kores Towers project without appreciating that since some of the residential units had a built-up area in excess of 1000 sq.ft., the conditions as stipulated in clause (c) of section 80IB(10) were not fulfilled and therefore the housing project was not eligible for deduction u/s 80IB(10) ? 4. The Respondent Assessee is a limited company and is engaged in the business of real estate development. The issues arise out of the Assessee's return of income for the Assessment Year 2009-2010. The Revenue opposes the Assessee's claim of deduction under Section 80IB(10) of the Income Tax Act, 1961 ('the Act', for short). The opposition of the Revenue arises in the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that being part of the original housing project, deduction under Section 80IB(10) of the Act would not be available to the Assessee in relation to his income arising out of such project. 7. Another objection of the Revenue was that the Assessee had breached the condition of each housing unit in such complex not exceeding constructed area of 1000 sq.ft. The Assessing Officer and the CIT (Appeals) noted that several units adjacent to each other were allotted to the members of the same family. The partition walls between two such flats were removed. Two residential units were thus converted into one, thereby breaching the condition of each unit not exceeding constructed area of 1000 sq.ft. 8. The Tribunal, by the impugned Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sq.ft. also, we find that the Tribunal was perfectly justified in overruling the objection of the Revenue. The Revenue authorities agreed that each individual unit had built up area of less than 1000 sq.ft. The CIT (Appeals), however, noted that in some cases, adjacent units were sold to the two members of the same family who had removed the partition wall between the units. The CIT (Appeals) was of the opinion that this device was in breach of clause (f) of Section 80IB(10) of the Act which imposes a condition that in the same family not more than one unit would be allotted. He agreed that such condition was inserted by Finance Act, 2009 with effect from 01/04/2010. However, he commented that the said condition was procedural and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X
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