Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2011 (5) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (5) TMI 597 - AT - Income TaxDeduction under section 80-IB(10) - disallowance of claim as assessee is not a builder and developer but merely a building contractor - principles of equity, natural justice and fair play - AO concluded that the assessee has assisted the owner, i.e., HMPL in construction only and all other developmental aspects have been done by HMPL - Held that:- It is to be noted that the land is not sold to the assessee and this is made clear in clause 5 itself that the possession is not given as a part performance of a contract as contemplated under section 53A of the T.P. Act - In the present case, undoubtedly, HMPL as the owner of the land has ventured to realise the potentialities of the land - There is a construction agreement between the assessee as the builder and the purchaser of each flat - the land is owned by one person and the assessee has undertaken the development and building of the housing project on the said land. Indisputably, the project is on a land exceeding one acre - Just because the plan sanction, plan approval etc. have been taken in the name of the land owner it would not deny the assessee the benefit of being treated as an undertaking developing and building the housing projects insofar as it is the assessee, through the power of attorney specifically taken from the land owner, that the plans have been drawn, approval obtained, sanction taken and the building constructed - decided in favour of the assessee Whether the built up area if it exceeds 1500 s.ft. in respect of any flats, the assessee would be entitled to the deduction under section 80-IB(10) on pro rata basis - Held that:- The flats were combined only after the purchase of those flats and after taking possession of them. In such cases the flats concerned are to be treated as constructed and sold as independent flats with built up area not exceeding 1500 sft., each Whether the private terrace is to be included in the computation of built up area - Once the private terrace is for the exclusive use of the purchaser of the flat then, obviously, the said private terrace does not fall within the common areas shared with the other residential units and consequently would have to be included in the measurement for arriving at the " built up area" - decided in against of the assessee.
|