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The Commissioner of Income Tax-III Versus Shri Suresh L. Wadhwa (HUF)

2015 (4) TMI 947 - BOMBAY HIGH COURT

Fulfillment of primary condition for claim of deduction under Section 801B(10) - whether ITAT failed to consider the fact that the area of the plot for Vidhi Complex is below 1 acre and as such the primary condition for claim of deduction under Section 801B(10) of the Income Tax Act, 1961 has not been fulfilled? - whether ITAT erred in coming to a conclusion that the exclusion of DP Road does not reduce the size of the plot, while on the contrary accepting the fact that the plot in question was .....

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on or before 31st March, 2008. Furthermore, it is seen that the project completion has been complied by by virtue of section 80IB(10)(d) on a plot of land which is 1.33 acres. The criteria of minimum area of 1 acre required under section 80IB(10)(a) had been met. It also complied with section 80IB(10) (c) of the Act since the area was situated within 25 kms. from the limits of Mumbai city and, therefore, the eligible for exemption of the flat of the size of 1,500 sq. ft. approximately. The Commi .....

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ishnu S. Hadade ORDER (Per A. K. Menon, J.) 1. The above appeals are filed by the revenue for the assessment years 2005-06 and 2006-07. Two common questions of law are said to be substantial questions of law. 2. Since in Income Tax Appeal No,1474 of 2013 has additional questions, we shall deal with the facts in that case:- The Respondent-assessee is the proprietor of M/s. Ashish Developers carrying on the business of development of properties. An assessment order under section 143(3) of the Inco .....

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ame to be made to the extent of ₹ 76,94,360/-. According to the Assessing Officer, the project exceeded the prescribed limit of 2000 sq. ft. of commercial space in building Nos.4, 6 & 10. 3. Being aggrieved by the order, the assessee filed an appeal before the Commissioner of Income Tax (Appeals) who allowed the appeal holding that the assessee has complied with the conditions laid down for claiming deductions. The revenue filed an appeal before the Tribunal, which was dismissed on 31s .....

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e case of Vidhi Developers. The Tribunal found that the assessee had undertaken the work only in building Nos.1 to 6 on a plot admeasuring 5318.46 sq. mtrs. equivalent to 1.33 acres. The Tribunal observed that the assessing officer found that the project had initially been approved as early as 2nd July, 2003 for 14 buildings. However, only six buildings were completed by the assessee and these were completed before 31st March, 2008. It had constructed a housing complex situated 25 Kms. away from .....

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pers were however, not able to develop the entire land and it disposed off development rights in respect of the construction of six buildings to the assessee and some others to M/s. Vidhi Developers. Three independent developers have developed three different projects on the land. The assessee did so in the name and style of Shiv Amrut Dham. Vidhi was developed by Vidhi Developers and Amrut Dham by Jayshree Builders. The Tribunal found that the Assessing Officer has treated all the three project .....

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excess of 2,000 sq. ft. and the project was completed on or before 31st March, 2008 and the completion certificate was obtained within time. 6. Mr.Tevjeer Singh appearing for the revenue has submitted that substantial questions of law arise in the case at hand. He further submitted that in the case of Vidhi Builders, this Court in Income Tax Appeal No.812 of 2012 vide order dated 10th March, 2014 to which one of us (S.C.Dharmadhikari, J.) was a party has admitted the appeal where the following q .....

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e exclusion of DP Road does not reduce the size of the plot, while on the contrary accepting the fact that the plot in question was originally a larger plot which was trifurcated with passing of two DP roads and thus, treating one of the 3 plots i.e. the plot in question being an independent plot with net area of 3461.68 sq.mtrs.? 7. Mr. Tejveer Singh further submitted that the Tribunal was wrong in having dismissed the revenue's appeal. On the other hand, Mr.Hadade appearing for the assesse .....

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