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TMI Blog2020 (12) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... oject Kamat Riviera except on pro-rata basis in respect of Flat No.103 therein. Second substantial question of law is answered in favour of the assessee and against the Revenue and it is held that the assessee is entitled to pro-rata deduction in respect of the entire housing project Kamat Riviera , including in respect of Flat Nos.401, 402 and 104 therein but not in respect of Flat No.103 which was allotted only on 10.10.2009. The impugned Order is set aside and the Revenue is directed to allow a deduction to the assessee in respect of its housing project Kamat Riviera except, on pro-rata basis in respect of Flat No.103 therein. - TAX APPEAL NO. 47 OF 2016 - - - Dated:- 1-12-2020 - M. S. SONAK DAMA SESHADRI NAIDU, JJ . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 were allotted to the same individual namely Mr. Suraj Kamble vide agreements dated 13.03.2009 and 29.06.2009 and Flat Nos.104 and 103 were allotted to Ms. Sangita V. N. Panvelcar vide agreement dated 26.06.2009 and to her husband, Mr. Vivek V. N. Panvelcar vide agreement dated 10.10.2009. The assessee appealed to the Commissioner (Appeals), who, vide order dated 28.08.2015, partly allowed the appeal and directed the AO to grant the pro-rata deductions under Section 80IB(10) of the said Act to the assessee. 4. The Revenue appealed to the Income Tax Appellate Tribunal (ITAT) against the Commissioner (Appeals') order dated 28.08.2015 for the relevant Assessment Year 2012-13. The assessee filed cross-objections claiming that the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pro-rata deduction: (i) Viswas Promoters Pvt. Ltd. v. Assistant CIT, Circle I, Madras (2013) 29 TaxMan.Com 19 (Madras); (ii) CIT Chennai v. Arun Excello Foundations Pvt.Ltd. - (2013) 29 TaxMan.Com 149 (Madras); (iii) CIT v. S.G. Estates Pvt. Ltd. (2015) TMI 1302 (Delhi); and (iv) CIT Anr. v. M/s. Brigade Enterprises Limited ITA No.54 of 2012 decided on 22.09.2020 by the Karnataka High Court. 8. Ms. Sathe further points out that the findings and reasoning of the ITAT on the issue of the area of the plot on which the housing project has been put up are perverse. She submits that even if the area proportionate to the 4 residential units is excluded from consideration, the plot area which remains for cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of which, there was a prohibition for allotment in favour of a spouse. Therefore, deduction proportionate to the amount involved for allotment of Flat No.104 could have been denied to the assessee but certainly not the deduction in respect of the entire housing project comprising of 60 residential units. 12. The reasoning of the ITAT in the context of the area of the plot on which the housing project was put up is vitiated by perversity. Even if the area proportionate to the 4 residential units were to be excluded from consideration, still, the available area exceeded 4000 sq. meters or 1 Acre. In any case, now that only one of the residential units can be excluded, the area exceeds 1 Acre and there is no breach whatsoever on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kamat Riviera except on pro-rata basis in respect of Flat No.103 therein; (b) The second substantial question of law is answered in favour of the assessee and against the Revenue and it is held that the assessee is entitled to pro-rata deduction in respect of the entire housing project Kamat Riviera , including in respect of Flat Nos.401, 402 and 104 therein but not in respect of Flat No.103 which was allotted only on 10.10.2009. (c) As a consequence, the impugned Order dated 01.03.2016 is set aside and the Revenue is directed to allow a deduction to the assessee in respect of its housing project Kamat Riviera except, on pro-rata basis in respect of Flat No.103 therein. 17. The appeal is partly allowed in the aforesaid t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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