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2018 (4) TMI 1852 - ITAT PUNEEligibility of deduction u/s 80IB - total area of the land on which the project was undertaken is less than the one acre of land - assessee argued that he had set apart certain portion of land for making DP road as per municipality order - HELD THAT:- For getting the sanction for development of housing project on the plot of land, which measured to 4077.21 sq.mtrs. by actual measurements, then the said sanction would be accorded where the assessee gives up area for DP road measuring 218.49 sq.mtrs. The said was the condition for getting permission to develop the housing project at the said place. The learned Authorized Representative for the assessee before us has pointed out that against the said area left for DP road, the assessee was entitled to increased FSI. In other words, the assessee gained from leaving the land for DP road. The Courts have time and again held that the condition which needs to be fulfilled for claiming the deduction, as per clause (b) is the actual measurement of plot of land on the date of start of development. The assessee had in the present set of facts, purchased the plot of land, which measured slightly more than one acre at 4077.21 sq.mtrs. Basic condition of fulfillment of having plot area of one acre stands fulfilled by the assessee. The said area had to be set apart only as per the requirements of different rules under the Municipality Act, but the same does not lead to the conclusion that the assessee had less than one acre of plot of land area for its development. The gross total area was more than one acre and hence, the assessee was entitled to claim the deduction under section 80IB(10) of the Act irrespective of the fact that the assessee had set apart certain portion of land for making DP road. There is no merit in the orders of authorities below in denying the claim of deduction under section 80IB(10) of the Act. Accordingly, the Assessing Officer is directed to allow the deduction under section 80IB(10) of the Act as the assessee had fulfilled the condition of holding plot of land, having area of more than one acre The finding of CIT(A) that the original plot size itself in the hands of assessee was less than one acre was not correct, in view of actual measurements of land as per triangulation method, what had to be seen as the actual measurement of plot of land and not the plot size mentioned in local language of 40R. The DVO had also referred to same area of 4077.21 sq.mtrs. Reversing the order of CIT(A), claim of assessee of 80IB(10) deduction is allowed. - Decided in favour of assessee.
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