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TMI Blog2015 (10) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... ates each residential unit should not exceed built up area of 1500 sq.ft. In other words, it is the contention of the Revenue that Commissioner of Income Tax (Appeals) should not have granted deduction under section 80IB(10) proportionately in respect of the flats where built up area is less than 1500 sq.ft. 2. Departmental Representative supports the order of the Assessing Officer in rejecting the claim of the assessee under section 80IB(10) of the Act. 3. Counsel for the assessee submits that the issue in appeal has been decided in favour of the assessee by this Tribunal in assessee's own case for the assessment year 2006-07 in ITA No. 113/Mds/2013 by order dated 10.05.2013, copy of the order is placed on record. 4. Heard both side ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilt-up area of 18,129 sq ft on proportionate amount of Rs. 16,82,411/-. The Assessing Officer did not allow the proportionate claim for the built-up area for apartments below 1500 sq ft on the ground that section 80IB(10) does not consider proportionate disallowance. 12. Being aggrieved by the said order, the assessee filed appeal before the ld. CIT(A). The ld. CIT(A), following the decision of the Hon'ble Calcutta High Court in the case of Bengal Ambuja Housing Development Ltd. in IT Appeal No.453 of 2006, allowed the claim for deduction u/s 80IB(10) to the assessee for those apartments with built up area of less than 1500 sq ft. 13. Being aggrieved, the Revenue is in appeal before us. 14. During the course of hearing, the ld. DR ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Madras High Court in the case of CIT vs M/s Sanghvi and Doshi Enterprise (supra). 19. We find that the ld. DR has not disputed that the facts in the case of the present assessee before us are identical to the facts of the case in M/s Sanghvi and Doshi Enterprise(supra). We find that the Hon'ble Madras High Court, in the above quoted case, has under as under: "29. We had already seen the various clauses in the agreement between the assessee and the owner dated 28.4.2003. A reading of the various clauses therein clearly points out the role of the assessee, which is not just as that of a builder to put up construction as per the directions of the owner; on the other hand, as rightly pointed out by the Tribunal, the risk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchaser to the owner, pro-rata to the built-up area. A reading of the agreement of sale with the purchasers further points out that the builder's agreement was entered on the very same day with the assessee. Thus, seen in the background of the data available as regards the date of sale, the clause in the agreement between the owner of the land and the assessee and the sale agreement with the prospective purchasers, it is evident that what the assessee had undertaken is not a mere construction, but developing and constructing of a project, which qualifies for a deduction under Section 80IB of the Income Tax Act. As rightly pointed out by learned Senior Counsel appearing for the assessee, a bare reading of Section 80IB of the Income Tax A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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