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TMI Blog2022 (11) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... r and that two separate agreements had been executed. The conclusions drawn by the CIT (Appeals) based on the material on record goes to show that the view expressed and subsequently upheld by the Tribunal cannot be in any way said to be a view or a conclusion which is perverse. The question essentially involved in the case, which had to be established beyond any doubt by the Revenue, ought to have been that the respondent had not only built but also sold the residential units, in respect of which the benefit of 100% deduction was claimed with an area of more than 1000 sq.ft., which only then could have justified the action of the Revenue in denying the benefit of 100% deduction under the said provision. In the present case, however, the revenue has failed to establish that fact. Not only this even the completion certificate could not have been issued by the competent authority, as rightly held by the Tribunal, if there was any violation of the approved plans by the municipal authorities. No substantial question of law arises. Appeal is dismissed. - DHIRAJ SINGH THAKUR AND VALMIKI SA. MENEZES, JJ. Mr. Suresh Kumar for the Appellant. Mr. Firoze Andhyanrujina, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in not considering report of Shri. Shirish R. Hindia and Ketan Vakharia, independent architects, wherein they have surveyed and reported only three flats per floor, statement of the flats owners and reports of the inspectors on duty during survey proceedings who have physically verified the subject premises Poseidon dated 01/12/2011? E. Whether on the facts and circumstances of the case the appellate prays that the order of the ITAT on the above grounds be set aside and that of Assessing Officer be restored 3. The dispute in the present appeal centers around whether the assessee was entitled to the benefit of deduction in terms of Section 80IB(10) of the Act. According to Section 80IB(10) of the Act, an undertaking is entitled to the benefit of 100% deduction on the profits derived in the previous year relevant to any assessment year from such housing project if, such an undertaking fulfills the requirement of the dates fixed under the said Section for initiating construction and completion thereof within the time prescribed. One of the most important condition envisaged in the said section is with regard to the area of residential unit which is supposed to be not mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... worthwhile to reproduce the conclusion drawn by the CIT (Appeals) in the penultimate paragraph of his order, which are as under:- It is seen that the AO has denied deduction u/s.80IB(10) on the basis of the evidence found as on the date of survey on 1.12.2011, whereas the appellant is claiming deduction on the basis of the approved plans of BMC, occupancy certificate issued by BMC, possession letters and agreements for sale of flats entered into with the individual buyers. I have already held that the evidence on record does not indicate that the appellant had combined two or more flats. On an overall appreciation of the records and documents, it is seen that: a. As per the approved plans of BMC all the flats in A wing of the building are having built up area of less than 1000 sq.ft.; b. The plan layout prepared by the architects and approved by BMC show that the area of each of the individual flats is having a built up area of less than 1000 sq.ft. The area measurement given by the appellant in their written submissions, is as per the actual area of each flat on completion of the building construction and the same is also certified by the Engineers of the Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e survey team during the earlier survey conducted in the year 2006 that the assessee was not raising the construction as per the approved plan. It was also held that if there was any modification effected to a residential unit completed and in regard to which a completion certificate had been issued by the competent authority, the assessee could not be held responsible. 8. Learned counsel for the respondent vehemently urged that the Tribunal could not have summarily brushed aside the second report submitted pertaining to the year 2011, which clearly reflected that there were only three units on each floor exceeding 1000 sq.ft. and if that was so, it was urged that the assessee could not be held entitled to the benefit of 100% deduction in terms of Section 80IB(10) of the Act. 9. Learned counsel for the respondent, on the other hand, urged that the view expressed by the Tribunal is a finding of fact recorded on the basis of the detailed view expressed by the CIT (Appeals). It was further urged that each of the issues, on which the Assessing Officer had proceeded to deny the benefit of 100% deduction u/s.80IB(10) of the Act, had meticulously been discussed, point by point, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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