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2015 (9) TMI 842 - AT - Income TaxDisallowance for deduction u/s. 80IB(10) - claim denied by the A.O for the reason that the plot size of the land on which the project was undertaken was less than 1 acre. - Held that:- Hon’ble Bombay High Court in the case of CIT vs. Vandana Properties reported in (2012 (4) TMI 54 - BOMBAY HIGH COURT) had an occasion to decide on the issue of deduction u/s. 80IB(10) wherein it has held that the expression “housing project” is neither defined under section 2 of the Act nor under Section 80IB(10) of the Act and therefore the expression “housing Project” in Section 80IB(10) would have to be construed as commonly understood “Housing Project” in common parlance and it would mean constructing a building or group of buildings consisting of several residential units. Assessee cannot be denied deduction u/s. 80IB(10) on the ground that the area of project is less than 1 acre and more so when Revenue has not disputed about the fulfillment of other conditions stipulated u/s. 80IB(10) by the Assessee. As far as denial of deduction on the ground of flat size being in excess of 1500 sq. ft. is concerned, we find that the Assessee had sold 4 flats namely C-401, 402, 403 and 404 to 4 different purchasers vide separate sale deeds which have also been confirmed by the respective purchasers and at the time of its sale each flat was less than 1500 sq. ft. It is also a fact that the inspection was carried out by the DVO subsequent and much after the date when Assessee had handed over the possession to respective owners of the flat. The respective owners have also confirmed by carrying out the modification in those flats and combining those 4 flats into 2 flats. In such a situation the act of the purchasers of flats of converting the 2 flats in to 1 flat resulting into the area of are combined flat being excess of 1500 sq. ft. cannot be said to be done by Assessee and therefore it cannot be said that Assessee has sold flat whose area was in excess of 1500 sq. ft. In view of the aforesaid facts, we are of the view that the Assessee is eligible for deduction u/s. 80IB(10) and therefore set aside the order of A.O on this ground. - Decided in favour of assessee. Disallowance u/s. 40(a)(ia) - late deduction tax at source from payments - Held that:- With respect to the payment made to Anar Builders Pvt. Ltd., we find that though Assessee had submitted that the payee has already included the payment received from the Assessee as its income and paid tax on it but we find that there is no finding to that effect either by the A.O or ld. CIT(A). In such a situation, we are of the view that the issue needs to be re-examined and re-decided at the end of A.O. in accordance with law. With respect to the submission of the Assessee in connection with the payments made to Dayal Krupa and Viral Transport, we are of the view that in the absence of categorical finding of A.O or ld. CIT(A) and in the light of the factual submission made by the Assessee the issue needs re-verification. We therefore restore the issue to the file of A.O for verification and thereafter decide the issue in accordance with law. - Decided in favour of assessee for statistical purposes.
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