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2016 (12) TMI 1669 - AT - Income TaxEligibility to deduction u/s 80IB(10) - approval to the project - date of getting the sanction - Held that:- Considering the factual matrix and since the project was sanctioned on 03/07/2003, prior to enactment/amendment, therefore, respectfully following the decision from Hon'ble Apex Court in Sarkar Builders [2015 (5) TMI 555 - SUPREME COURT] and Hon'ble jurisdictional High Court in Brahma Associates (2009 (4) TMI 215 - ITAT PUNE ), we find no infirmity in the conclusion of the Ld. Commissioner of Income Tax (Appeal) and more so the Department in the case of sister concern of the assessee i.e. Bhumiraj Homes Ltd. (2013 (7) TMI 649 - ITAT MUMBAI), the Department allowed the claim of the assessee. It is worth mentioning that the project was approved as a composite project (residential + commercial) page-5 of the paper book and completion certificate was also issued for a composite project, thus, we affirm the stand taken by the Ld. Commissioner of Income Tax (Appeal) with respect to allowability of claimed deduction for residential units of the project. Partial denial of claim of deduction u/s 80IB(10) being part of the profit derived from housing project has been challenged - Held that:- There is a confusion in the area as in the commencement certificate dated 03/07/2003 (page-7 of the paper book), the residential area mentioned is 10491.137 mts. and the commercial area is 459.911 mts., thus, the total area comes to 10951.048 mts. At the same time, in the occupancy certificate, the residential area mentioned is 10636.203 sq.mts. and the commercial area mentioned is 536.779 sq. mts. thus, the total area comes to 11172.982 sq. mts., thus, there is a confusion in the area. Considering the totality of facts, we direct the assessee to file the necessary details before the ld. Assessing Officer and clear the factual matrix. The ld. Assessing Officer is directed to examine the claim of the assessee in accordance with law, considering the decision from Hon'ble jurisdictional High Court in Brahma Associates (2011 (2) TMI 373 - BOMBAY HIGH COURT) Penalty levied u/s 221(1) for non-payment of self assessment tax - Held that:- Major dispute was on account of allowability of deduction u/s 80IB(10). As mentioned earlier, the Ld. Commissioner of Income Tax (Appeal) as well as this Tribunal (in preceding para of this order) has allowed the claimed deduction u/s 80IB(10) on residential unit and on commercial portion restored the issue to the file of the Assessing Officer, being confusion on the area mentioned differently in different documents, thus, in our view, at least, the assessee, so far as penalty is concerned, cannot be said to be assessee in default. Section 221(2) of the Act says “where as a result of any final order the amount of tax, with respect to default in the payment of which the penalty was levied, has been wholly reduced the penalty levied shall be canceled and the amount of penalty paid shall be refunded.” In the present appeal, the substantial portion of deduction u/s 80IB(10) has been decided in favour of the assessee and the commercial portion/shops, due to confusion of the area has been sent to the file of the ld. Assessing Officer, therefore, the basis on which penalty was imposed, no more remains in existence, therefore, we find merit in the contention of the assessee, consequently, the conclusion drawn in the impugned order is partially correct.
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