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2015 (6) TMI 808 - ITAT MUMBAIReopening of assessment - disallowance of assessee's claim of deduction u/s.80IB(10) - Held that:- AO appears to have relied exclusively on an audit objection. There was, hence, a total absence of "tangible material", to justify the conclusion that income had escaped assessment. All the conditions were fulfilled by the appellant for the claim of the deduction under section 80IB(10) and the Ld. AO verified the same during the original assessment which was completed after conducting a survey operation u/s. 133A of the Act. In view of the foregoing the issue of notice u/s. 148 is bad in law and thus cannot be sustained. Site plan of the project was approved by the BMC in respect of Indian Ocean Project on 8-4-2005 was 6555.83 sq.mtrs. of land. The CIT(A) even after applying the reverse calculation with regard to BMC rules FSI of 1.33 found that the plot size was 4929.19 sq.mtrs., which is equivalent to 1.22 acres. Thus, the contention of the AO that plot size of the Indian Ocean project was below 1 acre is incorrect. The CIT(A) has also recorded a categorical finding to the effect that none of the residential unit was more than 1000 sq.ft. This fact was also verified by the revenue authorities during the survey operation carried out at assessee's project site even before original assessment u/s.143(3) wherein assessee's claim u/s.80IB(10) was allowed. We found that AO has worked out the area on the basis of a hillock whose area has been shown to 1873.27 sq.mtr.s on the entire plot of area and not on the area that relates to site of building Atlantic Ocean. Therefore, if the entire plot area is taken into account i.e. 40803.10 sq.mtrs. the area of the hillock is remarkably reduced in proportion the total area of the hillock and nearly comes to 4.59%. Thus, the computation done by the AO in arriving at the plot area is based on wrong figures adopted by him. - Decided in favour of assessee.
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