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TMI Blog2023 (10) TMI 1319X X X X Extracts X X X X X X X X Extracts X X X X ..... id registered deed executed by the assessee in favor of Smt. Usha Basant Sethiya (supra) would by no means come to his rescue. Our conviction that the aforesaid property, viz. Flat No. A-102 was allotted by the assessee to Smt. Usha Basant Sethiya (supra) can also be gathered from the fact that the profit/income accruing on the transfer of the same had been recognized by the assessee only pursuant to the execution of the aforesaid registered sale deed by him. We are unable to bring ourselves to agree with the view taken by the CIT(Appeals), who held a conviction that as Smt. Usha Basant Sethiya (supra) was neither Karta nor a member of Mahendra Sethiya, HUF; therefore, the assessee had carried out independent sale transactions of. Flat No. A-101 A-102 to two different entities. We, thus, set aside the order of the CIT(Appeals) to the extent he had vacated the disallowance u/s. 80IB(10) Flat No. A-101 and A-102 sold by the assessee to one individual, viz. Smt. Usha Basant Sethiya (supra). Decided in favor of revenue, partly. - Shri Ravish Sood, Judicial Member And Shri Arun Khodpia, Accountant Member For the Assessee : Shri R.B Doshi, CA For the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e A.O. vide his order passed u/s. 143(3) dated 27.03.2016 determined the income of the assessee at Rs. 4,38,98,600/-. 4. Aggrieved the assessee carried the matter in appeal before the CIT(Appeals). It was, inter alia, the claim of the assessee before the CIT(Appeals) that he had allotted Flat No. A-102 to Shri Mahendra Sethiya, HUF, and not to Smt. Usha Basant Sethia (supra). Carrying his contention further, it was submitted by the assessee that as Shri Mahendra Sethiya, HUF had entered into a sale agreement for his Flat No. A-102 with Smt. Usha Basant Sethia (supra), therefore, it was only as per his request that he had accommodated him by executing a sale deed in the latter s name. Referring to the fact that Smt. Usha Basant Sethiya (supra) was neither Karta of Shri Mahendra Sethiya, HUF, nor a member of the same; the CIT(Appeals) found favor with the claim of the assessee that he had not sold more than one residential unit to Smt. Usha Basant Sethia (supra). For the sake of clarity, the relevant observations of the CIT(Appeals) are culled out as follows: It is seen that out of the 55 flats, the Violation has been noted by the AO only at one instance. It is also seen tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for deduction u/s. 80IB(10)(f) with respect to Flat No. A-102, it was submitted by the Ld. AR that as the same was based on wrong facts, the CIT(Appeals) had rightly vacated the same. Elaborating on his aforesaid contention, it was averred by the Ld. AR that the assessee had executed an Agreement to sell for Flat No. A-102 with Shri Mahendra Sethiya, HUF. Carrying his contention further, the Ld. A.R. submitted that as the aforesaid property, viz. Flat No. A-102 was thereafter sold by Shri. Mahendra Sethiya, HUF to Shri Usha Basant Sethiya (supra), therefore, the said subsequent sale transaction could not have formed a basis for declining the assessee s claim for deduction u/s. 80IB(10) of the Act. The Ld. AR submitted that as Smt. Usha Basant Sethiya (supra) was neither Karta of Mahendra Sethiya, HUF, nor a member of the same; therefore, it was incorrect for the A.O to infer any violation by the assessee of the clause (f) of sub- section (10) of Section 80IB(10) of the Act. Based on his aforesaid submission, it was the claim of the Ld. AR that as the assessee had executed two separate sale transactions, viz. (i) sale of flat No. A-101 to Smt. Usha Basant Sethiya; and (ii) sale o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under: 06/11/2017 1. Having perused the materials, we are satisfied that the learned Counsel for the Appellant-Revenue is justified in submitting that these appeals are covered as per the judgment of the Hon ble supreme Court in Commissioner of Income Tax V. Sarkar Builders; (2015) 7 SCC 579 and therefore, these appeals may be permitted to be withdrawn. 2. Hence, these appeals are dismissed as withdrawn. Further, we find that the Hon ble Supreme Court in the case of Commissioner of Income Tax V. Shreenath Buildcon (2019) 267 taxman 115 (SC), had held, that where the constructed area of some residential units exceeded the specified built up area of 1500 sq. ft, then, deduction claimed could not be denied in respect of the entire housing project. 11. We, thus, in terms of our aforesaid observations finding no infirmity in the view taken by the CIT(Appeals) who had rightly directed the A.O to restrict the disallowance of the assessee s claim for deduction under Sec. 80IB(10) proportionately in respect of allotment of sales transactions which do not comply with the conditions of section 80IB(10) of the Act and, allow the remaining deduction as claimed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (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; (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three per cent of the aggregate built-up area of the housing project or five thousand square feet, whichever is higher; (e) not more than one residential unit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya, HUF, had signed as a consenting party in the aforesaid registered deed executed by the assessee in favor of Smt. Usha Basant Sethiya (supra) would by no means come to his rescue. Our conviction that the aforesaid property, viz. Flat No. A-102 was allotted by the assessee to Smt. Usha Basant Sethiya (supra) can also be gathered from the fact that the profit/income accruing on the transfer of the same had been recognized by the assessee only pursuant to the execution of the aforesaid registered sale deed by him. 15. Backed by our aforesaid observations, we are unable to bring ourselves to agree with the view taken by the CIT(Appeals), who held a conviction that as Smt. Usha Basant Sethiya (supra) was neither Karta nor a member of Mahendra Sethiya, HUF; therefore, the assessee had carried out independent sale transactions of. Flat No. A-101 A-102 to two different entities. We, thus, in terms of our aforesaid deliberations, set aside the order of the CIT(Appeals) to the extent he had vacated the disallowance u/s. 80IB(10) of the Act w.r.t the Flat No. A-101 and A-102 sold by the assessee to one individual, viz. Smt. Usha Basant Sethiya (supra). Thus, the Ground of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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