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TMI Blog2021 (1) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... 10) of the Act, it is evident that the same does not exclude the principle of proportionality in any manner. Therefore, we hold that the Commissioner of Income Tax (Appeals) as well as the Tribunal have rightly found that the assessee has complied with the requirement contained in clause (c) of Section 80IB(10) of the Act. Submissions of the assessee before CIT(A) that the DVO has not considered the units in County I project and therefore the report of the DVO cannot be said to be final in the matter - We do not find any merit in the ground No.3 raised by the Revenue. In any event, the physical measurement has to be taken by the AO and the AO is at liberty to take physical measurement in an appropriate manner and therefore there cannot be any grievance to the Revenue. For the reasons given above, we find no merit in the appeal by the Revenue. - ITA No.190/Bang/2017 - - - Dated:- 7-1-2021 - Shri N.V. Vasudevan, Vice President And Shri B. R. Baskaran, Accountant Member For the Appellant : Shri. Arun Kumar, CIT(DR)(ITAT), Bengaluru For the Respondent : None ORDER PER N.V. VASUDEVAN, VICE PRESIDENT This is an appeal by the assessee against the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... County-I housing project as an eligible project u/s 80IB(10). 4. One of the condition for claiming deduction under section 80IB(10) is that the Built up area of the units in a project should not exceed 1500 sq.ft. 5. The AO with a view to ascertain whether County-I project has complied with conditions of section 80IB(10), made a reference was made by this office to District Valuation Officer (DVO) requesting him to inspect the property, take measurements of the residential units constructed in this project and furnish a report. The D.V.O, after inspecting the approval of the local authorities, taking measurements of few sample residential units submitted a report in which he gave measurements of builtup area of seven residential units. Out of these seven units, the built up area of five residential units exceeded 1500 sq.ft. The D.V.O had also stated in his report that the built-up area is quantified after considering inner measurements of the residential units at the floor level, including projections, balconies and thickness of walls. According to the AO, the built-up area furnished by the D.V.O was in accordance with definition of built-up area given in sub section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These individual owners of the sited have obtained plan sanctions separately from the Secretary, Manchanayakana Halli, Ramanagar Taluk. The completion certificates have also been obtained separately for each residential unit and not for the project as a whole. According to the AO, the assessee has entered into construction agreements with each one of the land owners for building duplex houses as per the sanctioned plans for each of those units and eructed separate buildings. So in this arrangement the assessee can only be termed as a building contractor but not a developer. 8. According to the AO, in the case of a developer, he owns a land or enters into JDA and sells the residential units by registering undivided sale of land and building/flat. Section 80IB(10) clearly says that the deduction is available to the undertaking developing and building housing projects . In other words, unless the undertaking carries out both developing as well as building activities, it is not entitled to the deduction. According to the AO, the assessee is not the owner of the and it has neither sold the land or building and since the assessee had received only construction receipts which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... County 2, wherein all the residential units were built for catering to the high income group citizens, which is in accordance with the intention of the legislature. Therefore, I hereby allow the deduction on the proportionate basis, accordingly, I direct the Assessing Officer to take the physical measurement of each and every residential unit of County 1 and to allow the deduction u/s.80IB (10) in respect of those units having built up area 1500 Sft. and below and to deny the deduction in respect of those units having built up area of more than 1500 sq.ft. 11. Aggrieved by the aforesaid order of the CIT(A), the Revenue has preferred the present appeal. 12. We have heard the submissions of learned DR and reiterated the stand of the Revenue as reflected in the grounds of appeal filed before the Tribunal. We have considered the submissions of the learned DR and the grounds of appeal raised by the Revenue. On the aspect of the assessee being entitled to deduction on a proportionate basis in respect of units having built up area of 1500 sq.ft. or less, we find that the conclusions of the CIT(A) do not require any interference as the principle of proportionate deduction has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing reliance on the order passed by the Tribunal in respect of previous Assessment Year viz., 2004-05 has held that the assessee is entitled to benefit of deduction under Section 80IB(10) of the Act proportionately in respect of residential units having built up area less than or equal to 1,500 square feet. The aforesaid finding has been affirmed by the Tribunal vide order dated 07.09.2012 by placing reliance in case of the assessee in respect of previous Assessment Year i.e., 2005-06 as well as 2006- 07. It is pertinent to note that the aforesaid view has been affirmed by a bench of this court in respect of another project of the assessee for the Assessment Year 2004-05 vide order dated 29.02.2012 passed in I.T.A.No.763/2009. It is also pertinent to note that similar view was taken in favour of the assessee in respect of Assessment Year 2005-06 and 2006-07 and the SLP against the order passed by this court has been dismissed vide orders dated 04.01.2013 and 14.03.2014 respectively. The aforesaid issue has therefore, attained finality. It is also pertinent to mention here that clause(c) of Section 80IB(10) of the Act, the Legislature has used the expression 'residential unit&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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