TMI Blog2015 (9) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer on account of assessee’s claim for deduction under S.80IB(10), we direct the AO to grant deduction u/s. 80IB(10) for present AY - Decided in favour of assessee. - ITA No. 412/HYD/2015 - - - Dated:- 26-6-2015 - B. Ramakotaiah, AM And Saktijit Dey, JM, JJ. For the Appellant : Shri J J Varun, AR For the Respondent : Shri B Rajaram, DR ORDER Per B. Ramakotaiah, AM. This is an appeal filed by assessee directed against the order of the Ld. Commissioner of Income Tax (Appeals)-XI, Hyderabad dated 26-02-2015. The only issue arising out of the appeal is with reference to disallowance of deduction of ₹ 1,00,23,576/- claimed u/s. 80IB of the Income Tax Act [Act]. 2. Assessee in the present case is an indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s AY. 2008-09 whereas the appeal was for AY. 2009-10. 4. We have considered the contentions and perused the record. There is no doubt with reference to the fact that assessee's claim pertains to AYs. 2009-10 to 2011-12 as recorded by the Revenue authorities. The Ld.CIT(A) also gave a factual finding that issues are similar to AY. 2009-10, therefore, since the issue was decided in favour of assessee in AY. 2009-10, we direct the AO to grant deduction u/s. 80IB(10). For the sake of record, the order of ITAT is reproduced as under: 13. We have considered the rival submissions and also perused the relevant material on record. It is observed that the disallowance made by the Assessing Officer on account of assessee s claim for deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not by the assessee and the profit arising from the sale of the commercial complex so constructed was duly offered to tax by the said owners in their returns of income. The learned CIT(A), however, still confirmed the disallowance made by the Assessing Officer on account of assessee s claim for deduction under S.80IB(10) on the ground that the plot of land on which the commercial complex was built was part and parcel of the project of the assessee, as approved by the concerned authorities. He also noted that the said plot of land was found mentioned even in the completion certificate dated 12.3.2012 issued by the concerned authority, which again strengthened the fact that the land on which the commercial complex was built up was a part and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplied with all the conditions under S.80IB(10). In the present case, the plot of land on which the commercial complex was built had already been sold by the assessee and since the commercial complex on the said plot of land was developed by the owners of the land and not by the assessee, we are of the view that the same could not be considered as part of the project of the assessee, especially when the project of the assessee excluding that plot of land independently complied with all the conditions for claiming deduction under S.80IB(10). It is also pertinent to note here that profit arising from the development and sale of commercial complex was duly offered by the owners to tax in their returns of income, and neither they nor the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was less than the limit of 1,500 sq. ft. prescribed under S.80IB(10). In our opinion, the said sale deed was sufficient to show that the area of the duplex unit constructed by the assessee as residential unit No.21 was having less than 1,500 sq. ft. built up area and the approved plan annexed to the sale deed further established this position. 15. As regards the residential unit No.118, is observed that the built up area of the said unit was considered by the Assessing Officer as in excess of 1,500 sq. ft. on the basis that in addition to the ground floor, the first floor was also constructed as found during the course of the visit of the DVO to the project site on 17.12.2011. In this regard, the claim of the assessee right from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect are found to be having built up area of more than 1,500 sq. ft, the deduction under S.80IB(10) is liable to be disallowed only on proportionate basis and the claim of the assessee under S.80IB(10) cannot be disallowed in its entirety, as done by the authorities below. 16. In the light of the above discussion and considering all the facts and circumstances of the case, we are of the view that there was no violation of any condition in respect of the project developed by the assessee for the purpose of claiming deduction under S.80IB(10) and the learned CIT(A) was not justified in confirming the disallowance made by the Assessing Officer on account of assessee s claim for deduction under S.80IB(10). We therefore, set aside the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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