TMI Blog2012 (5) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... any claim of expenditure, Section 40A (3) is not attracted and 20% disallowance was not permissible. - held that:- matter remanded back. - IT APPEAL NOS. 114, 128, 138 & 139 OF 2010 - - - Dated:- 29-2-2012 - N. KUMAR AND RAVI MALIMATH, JJ. K.V. Aravind for the Appellant. A. Shankar and M. Lava for the Respondent. JUDGMENT N. Kumar, J. ITA Nos. 138/2010 and 139/2010 are filed by the revenue challenging the order passed by the Tribunal which has granted benefit to the assessee under Section 80113(10) of the Income Tax Act, 1961. The other two appeals ITA Nos. 114/2010 and 128/2010 are the appeals filed by the assessee to the extent relief is denied to them. Therefore, these four appeals are taken up for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication. He categorically stated if the balcony area is excluded, none of the residential units the built up area exceeds 1.500 sq. ft. However, the Assessing Officer relying on the definition of "built up area" inserted by Finance No. 2 Act which came into effect from 1.4.2005 by way of clause (a) In Sub-section (14) of Section 80IB held the balcony could be excluded only if it is used as a common area. He further held that the said amendment is retrospective in nature. When admittedly, if the balcony area is included the total built up area exceeds 1,500 sq. ft and therefore the assessee is not entitled to the benefit under Section 80IB. Therefore, the profit of the business was added to the income. 3. Aggrieved by the said order, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act? ( c ) Whether the Tribunal was justified in law in holding that, the Appellant was not eligible to claim deduction under Section 80IB in respect of certain flats that they were alleged to be not within the limit of 1500 sqft and as sanctioned, by the sanctioning authority on the facts and circumstances of the case? ( d ) Whether the Tribunal was justified in law in confirming a disallowance of Rs. 8,67,450/- under Section 40A(3) of the Act, on the facts and circumstances of the case? ( e ) Whether the Tribunal was justified in law in confirming the levy of interest under Section 234B of the Act and further whether the method, of computation of interest adopted by the assessing officer was in accordance with law? 6. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the same project which is again prospective in nature. Therefore, seen from any angle the assessee is entitled to the benefit under Section 80IB(10) of the Act. 8. The assessing authority has taken note of the payments made in cash in excess of Rule 6DD which conies to Rs. 43,37,250/- and has disallowed 20% under Section 40A (3) amounting to Rs. 8,67,450/-. The assessee contends when he has not put forth any claim of expenditure, Section 40A (3) is not attracted and 20% disallowance was not permissible. However, the learned counsel for the revenue submits, from the material on record it is not possible to say at this stage whether the assessee has claimed any deduction at all and therefore it would be proper to remit the matter back ..... X X X X Extracts X X X X X X X X Extracts X X X X
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