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TMI Blog2021 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... home its point is rather distinguishable and not directly applicable to the facts of the case on hand. In an overall consideration of the facts and circumstances of the issue, the Revenue has not brought out any concrete documentary evidence to justify its stand in excluding the difference in allocable expenses. We are, therefore, of the considered view that the exclusion of the difference in allocable expenses from the deduction as claimed by the assessee was misconceived and thus, exclusion of difference in allowable expenses is unjustified. Thus substantial question of law does not arise for our consideration which is evident from the findings recorded by the tribunal. Whether the Tribunal is correct in holding that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concern for purchase of the land. The assessee thereafter has constructed residential apartments on it and therefore, the land shall be deemed to have been transferred within the meaning of Section 2(47)(v) of the Act and is entitled to claim deduction under Section 80IB of the Act. In this connection, reference may be made to decision of the Supreme Court in 'PCIT VS. GREEN ASSOCIATES [ 2019 (4) TMI 224 - SC ORDER] . The substantial question of law No.3 is answered against the revenue and in favour of the assessee. - I.T.A. NO.383 OF 2010 - - - Dated:- 5-4-2021 - HON BLE MR. JUSTICE ALOK ARADHE AND HON BLE MR. JUSTICE M.G.S. KAMAL APPELLANTS (BY SRI. K.V. ARAVIND, ADV.,) RESPONDENT (BY SRI. A. SHANKAR SR. ADV. FOR SRI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stated are that assessee is a company incorporated under the Companies Act, 1956 and is engaged in the business of construction of real estate projects and in executing construction contracts. The assessee for the Assessment Year 2005-06 filed the return of income on 31.10.2005 and declared a total income of ₹ 33,33,36,600/-. The case of the assessee was selected for scrutiny and notice under Section 143(2) of the Act was issued on 01.06.2006 to the assessee. The Assessing Officer by an order dated 31.12.2007 passed under Section 143(3) of the Act completed the assessee and disallowed a portion of deduction claimed under Section 80IB of the Act to the extent of ₹ 8,54,05,964/-. The Assessing Officer determined the total incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in law within the meaning of either Section 2(47) of the Act or under Section 54 of the Transfer of Property Act, 1882. 5. On the other hand, learned Senior counsel for the assessee submitted that assessee has considered the cost as the basis for allocation of common overheads amongst various units of the assessee. It is further submitted that basis for allocation of expenses depends on the nature of business and may vary from case to case basis and what might be the basis for one nature of business may not be ideal for another nature of business. It is also submitted that in the construction of real estate business, the period of activity for construction of project may vary from 1 to 3 years and 5 years depending upon the size of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;, (2015) 375 ITR 392 (SC) and 'CIT VS. S.T.MICRO ELECTRONICS PVT. LTD. IN ITA NO.928/2010 DATED 25.05.2011. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. The tribunal has recorded the finding on first substantial question of law in para 20.6 and para 20.7, which reads as under: 20.6 On a careful consideration of the observations of the Hon'ble Tribunal cited supra, we find, there was no definite ratio laid down by the Hon'ble Tribunal that the common overhead expenses have to be allocated on the basis of turnover as contested by the revenue. With due regards, we are of the firm view that the case law relied on by the Revenue to drive home its point is rather ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of Section 2(47)(v) of the Act, it is evident that if the possession of any immovable property is handed over in part performance of the contract referred to in Section 53A of the Transfer of Property Act, 1882 the same would be a transfer within the meaning of Section 2(47) of the Act. 9. In the instant case, the assessee has taken possession of the land in pursuance of an agreement executed between it and its sister concern and has paid consideration to its sister concern for purchase of the land. The assessee thereafter has constructed residential apartments on it and therefore, the land shall be deemed to have been transferred within the meaning of Section 2(47)(v) of the Act and is entitled to claim deduction under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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