Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2016 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (1) TMI 173 - AT - Income TaxValidity of claim of deduction under sec. 80IB (10) - non fulfilment of 46 clause(c) of section 80IB (l0) of I.T. Act, 1961 that some of the residential units do not confirm to the requirements of built up area i.e. 1500 sq. ft. - Held that:- In this project also for no. of eligible Towers are 24 where each residential unit is having constructed area less than 1500 sq. ft. as per the requirement of clause (c) of section 80IB (l0), where as ineligible no. of towers are 11 spread over on 24.174 acres & these towers are separately Located and separated from other Towers. Hence these towers together is a separate housing projects spread over 25.83 acres of Land & Satisfying all the conditions of section 80IB (l0) separately. Though there is a common approval of entire 50 acres of Land consisting of eligible housing project along with commercial area on 24.174 acres of Land. Both eligible & non eligible projects are separate by road & have separate common facilities. Ld. AR has relied upon various Judicial pronouncements on similar lines as in Omaxe Green Land, Sector 93B, Noida. As considered entire facts & circumstances of the case. Present eligible projects is similar to Omaxe Green Land project. Therefore, treat the eligible projects as a separate housing project on similar lines of Noida project. Commercial area of entire housing scheme is more than permissible limit as per clause (d) of Section 80IB(10) - CIT(Appeals) did not agree with the assessee that the commercial area are within the limit of amended permissible area as per clause D of section 80IB(10) introduced by Finance Act, 2010 as clarificatory in nature as it would apply to the project started before 31.3.2008. We concur with this finding of the Learned CIT(Appeals) that amendment in the said clause (d) is not clarificatory and, therefore, it would not apply retrospectively. The Learned CIT(Appeals) has, however, held that the eligible towers are separate housing projects and, therefore, deduction under sec. 80IB (10) is available. The further contention of the assessee that the commercial area is not developed and right to develop the same is transferred to other company and the said transfer is duly intimated to the local authority and that a transfer is not a mere book entry as claimed by the Assessing Officer was kept open by him in view of his above findings and treating the same as not relevant. We are agreeable to this finding of the Learned CIT(Appeals) especially when the assessee was found eligible to claim deduction under sec. 80IB(10) of the Act on the projects having residential units constructed within the prescribed limit of 1500 sq. fts. The same is upheld. - Decided in favour of assessee.
|