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TMI Blog2013 (6) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... not allowing the claim of deduction u/s. 80IB(10) of the IT Act in all the years. Remaining grounds are consequential to the above addition. 2. Ld. A.O. passed order u/s. 143(3) r.w.s. 254 of the IT Act. In A.Y. 2004- 05, ITAT vide order in ITA No. 525/Ahd/2008, has restored back the issue of deduction u/s.80IB(10) by considering the Special Bench, Pune in case of Brahma Associates, 119 ITD 255 . The A.O. analyzed the fact after giving the opportunity to the appellant. The ld. A.O. observed that as per the lay out plan of the assessee, the plot area of the housing project is 4271.30 sq. mtrs. The total built up area of the housing project is 3087.21 sq. mtrs. Out of this built up area, the total built up area of the shops is 419 sq. mtrs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial built up area is more than 10%. By considering the Special Bench decision of Brahma Associates (supra), he has not allowed the deduction u/s.80IB(10). 2(ii). In Assessment Year 2008-09, the ld. A.O. passed order u/s. 143 (3) and considered the following facts: i. Land an integral part of a housing project. ii. The approval by local authority to the assessee mandatory iii. Legal transfer of land is a must. iv. Avoidance of stamp duty, the real raison detre of the claim. v. Section 53A of the Transfer of Property Act. vi. Section 2(47)(v). vii. Beneficial ownership. viii. Liberal interpretation of a beneficial provision - limited connotation. ix. No provision for passing on the benefit to any other party. x. No violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e residential part of the project satisfies the conditions for allowance of deduction u/s.80IB(10) on stand alone basis, the land area proportionate to residential flats has to be seen. Total FSI permissible - both commercial & residential, is related to the size of the plot. So if land under residential part of the project is to be calculated, naturally, the land proportionate to sanction FSI/built up area of commercial space has to be deducted. Just because the shops are on ground floor and above them on 1st, 2nd & 3rd floors there are residential units, it does not mean that no land is attributable to the commercial units. The commercial units do have rights attached to them for a specified but undermarkated/undivided area in the plot of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Special Bench as well as that delivered by Hon'ble Bombay High Court." Identical findings have been given by the ld. CIT(A) for A.Y. 05-06 except various case laws discussed in this year. In A.Y. 08-09, the CIT(A) held that the assessee's case is squarely covered by the case of M/s. Shakti Corporation and Radhe Developers for ownership as well as cost and risk involved in the development of the project and sale of unutilized FSI. But the appellant did not fulfill the condition of Clause (d) of Section 80IB(10). Thus, he confirmed the addition made by the A.O. 4. Now the assessee is before us in all three years. Ld. Counsel for the appellant contended that the Section 80IB(10) amended w.e.f. 01.04.2005 and Clause (d) has been inserted. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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