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2018 (10) TMI 1692 - AT - Income TaxDeduction u/s 80IB - Scrutiny assessment orders u/s 143(3) - AO allowed deduction on the profits from the sale of residential units; as regards the profits from the leave and licence fees, the AO held that such income is not "derived from" the development of a housing project but from letting thereof (though it is business income) and hence, the assessee was not eligible for deduction u/s 80IB(10) on this component - CIT-A allowed claim - HELD THAT:- In terms of section 80IB(10), what is relevant is the plans approved by the local authority and if the construction is as per such plans, deduction under section 80IB(10) cannot be denied; even if two adjacent residential units have been merged into a bigger flat, so long as the assessee satisfies all the conditions prescribed for claiming deduction u/s 80IB(10) and the assessee has constructed residential units which have BUA of less than 1,000 sq. feet. deduction cannot be denied. In the instant case of the assessee, the assessee had got the plans approved with each residential unit having a BUA of less than 1,000 sq. feet and allotted residential units to the purchasers with a BUA of less than 1,000 sq. feet. Accordingly, there is no infirmity in the order of CIT(A) allowing assessee’s claim of deduction u/s.80IB(10) of the IT Act. With regard to the AO’s contention of treating income derived from leave and licence fee not in the nature of income leviable for deduction u/s.80IB(10), we observe that the ITAT, in assessee's own appeals against the orders u/s 143(3) of the Act for assessment years 2005-06 to 2007-08 [2014 (10) TMI 973 - ITAT MUMBAI] has held such income to be eligible for deduction u/s 801B(10) of the Act. With regard to the AO’s reliance on the decision of Hon’ble Supreme Court in the case of Dilip Kumar and Company [2018 (7) TMI 1826 - SUPREME COURT] wherein it was held by the Constitution Bench that when there is an ambiguity in an exemption notification, it should be interpreted strictly, we found that the applicability of this decision is only when there is an ambiguity. In a case there is no ambiguity in the language of the section, the ratio of this decision is not applicable. Since the DR has not pointed out any ambiguity in the language of section 80IB(10), the ratio of this decision is not applicable in the instant case. No infirmity in the well reasoned order of CIT(A) wherein CIT(A) has dealt with the issue of assessee’s eligibility u/s.80IB threadbare after recording detailed findings. The findings recorded by him are as per material on record which do not require any interference on our part. - Decided against revenue
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