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TMI Blog2020 (12) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Hon'ble Supreme Court. Accordingly, there is no good ground to interfere with the view taken by the Commissioner (Appeals ) and the ITAT on the issue of proportionate deduction, at the instance of the Revenue, in these matters. - TAX APPEAL NOS. 4 OF 2016, 5 OF 2016, 6 OF 2016, 7 OF 2016, 8 OF 2016, 52 OF 2016 AND 49 OF 2016 - - - Dated:- 26-11-2020 - M. S. SONAK DAMA SESHADRI NAIDU, JJ. Mr. Mihir Naniwadekar with Ms. Vinita V. Palyekar, Advocates for the Appellants in Tax Appeal Nos. 4, 5, 6, 7, 8 of 2016 and for the Respondent in Tax Appeal Nos.52 of 2016 and 49 of 2016. Ms. Susan Linhares, Standing Counsel for the Respondents in Tax Appeal Nos.4, 5, 6, 7, 8 of 2016 and for the Appellant in Tax Appeal Nos.52 of 2016 and 49 of 2016. ORAL JUDGMENT (Per M. S. Sonak, J) Heard Mr. Mihir Naniwadekar, learned counsel for the Assessee, and Ms. S. Linhares, learned Standing Counsel for the Revenue. 2. The learned counsel for the parties submit that the issue involved in all these appeals is common though the appeals may relate to different Assessment Years. They, therefore, agree that all these appeals can be disposed of by a common judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in breach of conditions contained in sub-clause (c) of Clause 10 of Section 80IB of the IT Act. In denying this deduction under Section 80IB, the AO in his order dated 21.12.2010 relied on the judgment of ITAT (Chennai ) in CIT Vs Vishwas Promoters (P) Ltd. (2010) 126 ITD 263 (Chennai), which had taken the view that there was no provision for grant of any proportionate deduction. 8. The assessee appealed to the Commissioner (Appeals) who, vide order dated 05.11.2014 partly allowed the appeal of the assessee and directed the AO to allow deduction under Section 80IB(10) to the assessee on a proportionate basis. The Commissioner (Appeals), inter alia, relied upon the decision of Madras High Court in the case of M/s. Viswas Promoters (P) Ltd. Vs ACIT, (2013) 29 Taxman. com 19 (Madras) which had reversed the decision of ITAT (Chennai) upon which reliance had been placed by the AO in his order dated 21.12.2010. 9. The assessee as well as the Revenue appealed to the ITAT, being aggrieved by the orders of the Commissioner (Appeals). The assessee was aggrieved because it was the case of the assessee that there was no breach even in respect of 8 out of a total of 195 residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19; (ii) CIT Chennai Vs Arun Excello Foundations (P) Ltd. (2013) 29 Taxman. com 149 (Madras); (iii) CIT Vs S.G. Estates Ltd., 2015 (7) TMI 1302 (Delhi); (iv) CIT Vs M/s Brigade Enterprises Ltd., ITA No. 54 of 2012 decided on 22.09.2020 by Karnataka High Court. 15. Mr. Naniwadekar further pointed out that even the decisions in Brahma Associates (supra) and Vandana properties ( supra) assist the case of the assessee and not of the Revenue. He points out that in Commissioner of Income Tax-21 Vs Aakash Nidhi Builders and Developers (2016) 76 Taxman. com 73 (Bombay) the Revenue conceded that the proportionate deduction can be granted because of the decision in Vandana properties (supra). 16. Mr. Naniwadekar relied upon some other decisions as well to submit that the proportionate deduction can always be granted under Section 80IB(10) of the IT Act, even assuming that the area of some of the residential units was more than the ceiling prescribed in clause (c) of Section 80IB(10) of the IT Act. He, therefore, submitted that the appeals of the Revenue be dismissed. 17. Mr. Naniwadekar based on instructions made a statement that in case the appeals of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue involved was whether a housing project, in which, a portion of the premises was permitted to be used for commercial purposes, was entitled to deduction under Section 80IB(10) of the IT Act. In that context, this Court held that where the commercial user was allowed under the Development Control Rules, the assessees were entitled to deduction under Section 80IB(10) on the entire project approved by the Local Authorities and there was no question of only some proportionate deduction. Some of the observations in Brahma Associates ( supra) therefore, cannot be torn out of the context to urge that no proportionate deduction was contemplated under Section 80IB(10) of the IT Act. 23. Similarly, in Vandana properties (supra), the issue involved was whether an assessee was entitled to claim deduction under Section 80IB(10) of the IT Act where the assessee failed to fulfill primary conditions laid down under Section 80IB(10) of the IT Act, such as the condition that the area of plot being at least one-acre or the area of the residential units being less than 1000 square feet, at the time of commencement of the project. This Court agreed with the Tribunal that in fact, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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