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2018 (3) TMI 1712 - ITAT MUMBAIDeduction claimed by the assessee u/s.80IB(10) - scaling down of deduction u/s.80IB(10) - assessee claimed the deduction in relation to the profits derived from construction of three buildings which covered the total estimated area of 43,782 sq.ft. - FSI used by the assessee for the three buildings in question was 4067.45 sq.mtrs which was less than one acre - Held that:- Similar issue has come up in the case of Bunty Builders vs. ITO [2010 (2) TMI 791 - ITAT, PUNE] wherein as explained that one acre would mean 4046 sq.mtrs or 43,560 sq.ft. Reliance has also been placed on the decision of Pune Bench of the Tribunal in the case of Baba Promoters and Development vs. ITO [2012 (8) TMI 84 - ITAT, PUNE] wherein also it has been accepted that one acre would mean 4046 mtrs or 43,560 sq.ft. Considered in this light, even if one goes along with the stand of the Assessing Officer and consider only the land covered by the three buildings even then the area in question fulfils the requirement of being not less than one acre. Therefore, on this aspect, we find no merit in the plea of the Revenue and the decision of the CIT(A) is affirmed. No fault can be found with the conclusion by the CIT(A) on this aspect. The charge made by the Assessing Officer is that there is a collusive arrangement in order to claim the benefit u/s.80IB(10) of the Act; this charge, in our view, is not maintainable because even if M/s. Kashish Park Realty Pvt. Ltd., would have carried out the development, in terms of CBDT communication dated 04/05/2001(supra), such project would also be eligible for the benefits of Section 80IB(10) of the Act. Thus, the order of CIT(A) on this aspect is also affirmed. Considering all these aspects, we confirm the order of CIT(A) and therefore, so far as the grounds raised by the Revenue are concerned the same are dismissed. Addition invoking Section 80IB(13) read with Section 80IA (10) - assessee had acquired the development rights of the land from M/s. FGP Ltd., at a price much lesser than the market price and therefore, there was unreasonable profits generated for the purpose of claiming deduction u/s.80IB(10) - Held that:- Section 80IB(13) of the Act prescribes that provisions of Section 80IA(10) of the Act, so far as may be, shall apply to the eligible business referred to in Section 80IB(10) also. The first and foremost requirement in order to invoke Section 80IA(10) is to establish the close connection between the assessee herein and M/s. FGP Ltd., with whom the transaction of acquisition of TDRFSI has been done. On this aspect, there is not even an allegation by the Assessing Officer, much less reference to any evidence in this regard. Before us, it has been pointed out that M/s. FGP Ltd., and assessee firm are unrelated parties and therefore, there is no question of invoking Section 80IA(10) of the Act qua the transaction of purchase of TDR-FSI by the assessee. Thus, on this pertinent point itself we find that the invoking of Section 80IA(10) read with Section 80IB(13) of the Act is untenable. We hold so. Thus, we hereby set aside the order of the CIT(A) to the above extent and allow the appeal of the assessee. - Revenue appeal dismissed.
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