9911796707
TMI Blog2021 (9) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO to treat the original ITR filed by it as ITR filed in response to notice u/s 148 of the Act. The assessee also filed objections inter alia alleging that the information stated in the reason was already available with the AO and in case reassessment proceedings are initiated, it will amount to review of the earlier assessment and as per the settled law the same is not permissible. However, AO rejected the objections raised by the assessee and disallowed the deduction claimed u/s 80IB amounting to Rs. 2,08,89,635/-. Feeling aggrieved by the action of the AO, the assessee challenged the assessment order before the CIT(A). The ld. CIT(A) after hearing the assessee partly allowed the appeal and deleted the addition made by the AO on account of disallowance of the claim of the assessee u/s 80IB of the Act. The Revenue is in appeal against the said findings of the Ld. CIT(A). 3. The Revenue has challenged the impugned order passed by the Ld. CIT(A) by raising the following grounds: - 1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in allowing appeal of the assessee without appreciating the facts of the case. 2. On the facts and in the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed by the Ld. CIT(A). The ld. counsel relied on the following decisions to substantiate the claim of the assessee: - i) Sanghvi & Doshi Enterprise vs. ITO 18 ITR (T) 608 (Chennai) ii) CIT vs. Arun Excello Foundations (P) Ltd. 259 CTR 362 (Madras) iii) Vishwas Promotors (P) Ltd. vs. ACIT 255 CTR 149 (Madras) iv) ITO vs. Paras Builders 40 ITR (T) 507 (pune-Trib) v) Om Swami Smaran Develpoers (P) Ltd. vs. ITO 90 taxmann.com 267 (Mumbai) vi) Pr. CIT vs. CIT vs. Shreenath Buildcon 267 Taxman 115 (SC) vii) Devashti Nirman LLP vs. ACIT 277 Taxman 408 (Bombay) 6. We have heard the rival submissions of the parties and perused the material on record including the cases relied upon by the ld. CIT(A). The only grievance of the Revenue is that the Ld. CIT(A) has wrongly allowed the deduction u/s 80IB(10) on pro rata basis. The ld. CIT(A) has allowed the ground taken by the assessee without prejudice to the main grounds and directed the AO to allow deduction on proportionate basis. The findings of the Ld. CIT(A) read as under:- "6.2 HELD: I have considered the facts of the case and examined the reply of the assessee. Brief facts of the case are that the AO has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause f a) or clause (b) shall apply to a housing project carried out in accordance with^ a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; ~* [and] (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed five per cent of the aggregate built-up area of the housing project or two thousand square feet, whichever is less] The following clauses (e) and (f) shall be inserted after clause (d) of sub-section (10) of section 80-IB by the Finance (No. 2) Act, 2009, w.e.f. 1-4-2010: (e) not more than one residential unit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said section, in'our considered opinion, such claim of the assessee was rightly allowed by the learned CIV A) by reversing the order of AO." 6.3.1 The appeal filed by the Revenue before Hon'ble Calcutta High Court against the Tribunal's judgment was dismissed vide ITA No. 458 of 2006. 6.4 The Hon'ble Madras High Court has also held in the case of M/s Viswas Promoters (P) Ltd (255 CTR 149) that the assessee is entitled to claim proportionate relief in respect of units satisfying the condition of the built up area. 6.5 It is also worth mentioning here that the deduction u/s 80IB(10) is given for the project and it is quite possible that an assessee has a number of projects and out of those projects, only some are eligible for deduction and others are not so eligible. As such, there is no restriction in the Act that in case other residential unit in such housing project is allotted to a person being the individual or the spouse or the minor children of such individual, then deduction is to be denied to the other units, which is otherwise eligible for deduction. This principle is concurred by the Hon'ble Supreme Court in the case of Principal Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
