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Mrs. Cherukuri Swapna Versus Deputy Commissioner of Income Tax

2015 (9) TMI 489 - ITAT HYDERABAD

Disallowance of deduction claimed u/s. 80IB - Held that:- 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 wherein held there was no violation of any condition in respect of the project developed by the assessee for the purpose of claiming deductio .....

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iled 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 individual who is engaged in the business of real estate development in her proprietary concern, M/s. Lahari Constructions. The return of income for the year was filed 'NIL&# .....

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finding that facts are similar in this impugned assessment year and vide para 6.1 records that on identical facts, CIT(A)-I, Hyderabad vide order in ITA No. 0319/CC-6, Hyd/CIT(A)-I/11-12 dt. 23-01-2014 for AY. 2009-10 had examined in detail the reasons for disallowance of claim u/s. 80IB(10). Following the same, as the facts and grounds are identical, Ld.CIT(A) agreed with the reasons adopted by the CIT(A) for upholding the action of AO in AY. 2009-10. Accordingly, the disallowance of 80IB was c .....

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9;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 .....

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e in the project, two units bearing Nos.118 and 121 (correct No. is 21, as pointed out by the learned counsel for the assessee) were having built up area of more than the maximum area of 1,500 sq. ft. permissible as per the relevant provisions. The learned CIT(A) held that there was thus violation of at least two norms in the respect of project developed by the assessee to be eligible for deduction under S.80IB(10) and the said project therefore, was not entitled to deduction under S.80IB(10), a .....

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complex on the said plot of land was constructed by the owners and 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 proje .....

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e of Lavanya Property Developers Pvt. Ltd. V/s. ACIT (ITA No.148/Mds/2010 dated 16.9.2011), wherein the assessee had obtained approval for the project comprising of five blocks to be developed on the land admeasuring 1.445 acres. He, however, sold plot of land pertaining to one block and developed only the balance area of 1.2 acres and claimed deduction under S.80IB(10) in relation to the four blocks only, built by it. The Assessing Officer disallowed the: claim of the assessee on the ground tha .....

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block in the project and hived off block had violated the condition prescribed under S.80IB(10), it would not disentitle the complete project from the deduction under S.80IB(10) especially when the hived off block was not in any way connected with the assessee s balance project and the balance project on its own complied 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 com .....

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to tax in their returns of income, and neither they nor the assessee claimed any deduction under S.80IB(10) in respect of the said profit. 14. In so far as the residential units No.21 and 118 are concerned, which allegedly were having more than the permissible maximum built up area of 1,500 sq. ft. each, the learned counsel for the assessee has filed before us a copy of the relevant sale deed dated 11th September, 2008, whereby the residential unit No.21 comprising of plot of land and duplex hou .....

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floors. As explained on behalf of the assessee before the authorities below as well as before us, the said unit was built on a corner plot and keeping in view the location as well as the size of the plot, duplex house was constructed, having a built up area of less than 1,500 sq. ft. It is also observed that a copy of the sale deed for residential unit No.21 was filed by the assessee even before the learned CIT(A), but still the learned CIT(A) brushed aside the same, by observing that the same .....

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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 beginning was that the residential unit comprising of plot of land with only ground floor constructed thereon was sold to the concerned buyer vide sale deed dated 3rd September, 2010, having bui .....

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