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2017 (4) TMI 246 - ITAT AHMEDABADAssessment u/s 153A - Deduction under section 80IB - Held that:- AO did not dispute with regard to fulfillment of other conditions contemplated under section 80IB of the Income Tax Act, 1961. His objections are very limited. A perusal of the assessee’s note would indicate that it has developed and built a housing project in the name of Ratna Jyoti Apartments. Total area of land used for development of this housing project was 22529 sq.meters i.e. 5.567 acres. It consists of two different plots viz. FP No.107, 108 & 109 of TPS No.2 admeasuring 15034 sq.meters i.e. 3.715 acre, and (ii) F.P.No.05 T.P. Scheme No.7, admeasuring 7495 sq.meters i.e. 1.852 acre. The assessee has constructed eight high rise towers on this area. On the first plot it has constructed tower bearing no.A, B, E, F, G & H, whereas on the plot bearing F.P.No.5 it has constructed towers C and D. The flats constructed in tower C & D were having more than 1500 sq.feet area. Therefore, these towers do not qualify the conditions for grant of deduction under section 80IB of the Act. As far as non-filing of the return within time limit provided in its notice under section 153A is concerned, the assessee has already filed regular return which was revised within time granted, and claim was made in connection with that return, and therefore this is not a valid reason assigned by the AO and this aspect has rightly been considered by the ld.CIT(A). Thus, out of four reasons assigned by the AO three are peripheral procedural reasons wherein the assessee has not committed any default which would statutorily prohibit the assessee for claiming such deduction. The last reasons remained to be dealt with is whether, if an assessee has violated conditions require to be fulfilled under section 80IB qua two towers then it would attract a disqualification for the remaining tower also. We find that as far construction raised by the assessee on TPS No.2, where it has raised six towers is concerned, it has not committed any irregularity or default. In the judgment replied by the ld.counsel for the assessee it has been recognized that if the assessee has completed the construction and fulfilled all the requirements for some of the units or towers in a housing project proportionate deduction would be granted to the assessee. No contrary decision was brought to our notice. Apart from the above, a perusal of site plan, photos of completed towers, their entrance would show that both plot were having more than 1 acre area which is the minimum requirement for development of housing project for claiming deduction under section 80IB(10). They can be treated as two independent project because independently they fulfill all requirement of section 80IB(10), therefore, we are of the view that the ld.CIT(A) has appreciated the facts in right perspective, and we do not find any error in the order of the ld.CIT(A). - Decided against revenue.
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