9911796707
TMI Blog2023 (1) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that the tribunal in own case 2014 (12) TMI 561 - ITAT MUMBAI] and [ 2015 (4) TMI 1351 - ITAT MUMBAI] have decided this issue in favour of the assessee. The Tribunal held that the assessee has constructed the flat well in accordance with the approved plan and has also sold the said flats to the buyers with the same specification. Tribunal held that mere provision of a hole for staircase to convert the flats to duplex was only a marketing strategy adopted by the assessee to enhance the sale. It was considered a minor deviation as per the approved plan. It also held that the sale of more than one flat to the members of a family is not a ground for rejecting the claim of deduction u/s. 80IB. Thus we are of the considered opinion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 as a lead case. 4. The brief facts are that the assessee is an Association of Persons (AOP for short) and consists of 3 members namely M/s. Bedrock Ltd., M/s. Ashish Estate and Properties Ltd. and M/s. Esvee Poddar Family Trust. The assessee is a builder and developer and has filed its return of income dated 28.09.2013, declaring total income at Rs.1,40,000/- after claiming deduction of Rs.4,09,90,505/- u/s. 80IB(10) of the Act. The assessee's case was selected for scrutiny and the assessment order dated 09.12.2016 was passed u/s. 143(3) of the Act, determining the total income at Rs.4,11,30,505/-, after making a disallowance u/s. 80IB(10) of the Act. 5. The assessee challenged the assessment order before the ld. CIT(A), who allowed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that the combined area of these flats were more than 1000 sq. ft. built up area, thereby holding that the assessee has not complied with one of the vital condition of section 80IB(10) and rejected the deduction claimed by the assessee. The A.O. placed his reliance on the decision of Hon'ble Bombay High Court in the case of CIT v/s Brahma Associates (2011) 333 ITR 289 (Bom). Further to this, it is also observed that the assessee has sold 7 flats out of the closing stock and has declared profit of Rs.4,11,30,505/-. The approval was obtained on 12.01.2004, the commencement certificate dated 16.12.2004 and the occupation certificate dated 08.12.2008 in respect of 'A' wing and 30.03.2009 in respect of 'B' wing. The total area of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the ld. CIT(A) has allowed the claim of the assessee in A.Ys. 2009-10 and 2010-11, wherein the assessee was entitled to proportionate profits and only the profits relating to eighteen 1 BHK flats, which was combined was to be brought to tax by relying on the decision of ITAT, Mumbai in the case of Dy. CIT vs. M/s. Ekta Housing Pvt. Ltd. (in ITA No. 3649/Mum/2009 vide order dated 20.05.2011), which held that where, in case any project has complied with conditions of section 80IB(10) partly then the assessee was entitled to proportionate deduction of profit as per the provisions of the Act. The A.O. failed to accept the condition of the assessee on the ground that the said decision was before the Hon'ble Jurisdictional High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2015, on the ground that the assessee's approval was for construction of 1 BHK flat and the conversion of the said flats to duplex was made by the purchasers subsequent to the sale of the flats. The Revenue has challenged the said decision of the ld. CIT(A) before us. 9. Having heard the rival submissions and perused the materials on record. It is observed that the tribunal in A.Ys. 2009-10 and 2010-11 have decided this issue in favour of the assessee. The Tribunal held that the assessee has constructed the flat well in accordance with the approved plan and has also sold the said flats to the buyers with the same specification. The Tribunal held that mere provision of a hole for staircase to convert the flats to duplex was only a market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plan approved by the authorities and sold them as such to the buyers. So long as the permanent structure like pillars of flat are constructed as per the approved plan of a residential unit with built up are of less than looks like small and minor deviation made for marketing reasons must not come on the way of granting deduction. As such there is no prohibition for sale of the more flats to the members of a family. The under amendments are undisputedly inapplicable to the projects under Consideration. Therefore, we are of the opinion, the assessee is entitled to the projects deduction in respect of the profits attributable to all the 1- BHK flats of the project too. To this extent we reverse the order of the CIT(A). Accordingly, we allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
