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TMI Blog2015 (10) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in the building, construction, promotion and development of real estate. For A.Y. 2005-06, the assessee filed its return of income on 31.10.2005 declaring income of R.2,60,575. The assessment was completed under Section 143(3) of the Income Tax Act, 1961 (in short 'the Act') wherein the income was determined at Rs. 5,42,02,182 due to the denial of the assessee's claim for deduction under Section 80IA(4)(iii) and 80IB(10) of the Act aggregating to Rs. 4,65,70,805 (i.e. Rs. 2,32,51,080 and Rs. 2,33,19,725 respectively). A co-ordinate bench of the Tribunal in its order in ITA No.99/Bang/2011 dt.2.1.2013 allowed the assessee's claim for deduction under Section 80IB(10) of the Act but restored the assessee's claim for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th regard to the income by way of lease received by relying on the order of the CIT (Appeals) for the A.Y. 2007-08 in ITA No.191/DC-11(3)/A-I/12-13 dtd.30.08.2013 and A.Y. 2004-05 in ITA No.182/DC-11(3)/AI/ 2009-10 dated 28.3.2013 in order to follow the rule of consistency without appreciating the fact that the orders relied upon have not been accepted and appeals to the ITAT have been preferred as the assessee had not fulfilled the conditions laid down by the Ministry of Commerce and Industry while granting the approval. 3. The learned CIT (Appeals) erred in not appreciating the objections of the Assessing Officer that there were three tenants in the industrial park as against the first condition that 4 units should be located in the ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and therefore no adjudication is called for thereon. 5. Grounds at S.Nos.2 to 6 Deduction u/s.80IA(4)(iii) of the Act. 5.1 The Grounds raised at S.Nos.2 to 6 (supra) are in respect of a single issue of assailing the impugned orders of the learned CIT (Appeals) for allowing the assessee the deduction claimed under Section 80IA(4)(iii) of the Act by placing reliance on the orders of the CIT (Appeals) for Assessment Years 2007-08 and 2010-11 in the assessee's own case. 5.2 At the outset of the hearings before us itself, the learned Authorised Representative of the assessee submitted different co-ordinate benches of this Tribunal in the assessee's own case in ITA No.921 to 924/Bang/2013 dt.18.7.2014 for Assessment Years 2004-05, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered the rival contentions and gone through the record carefully. We find that deduction u/s.80IA(4)(iii) of the Act has been allowed in two earlier years namely, 2004-05 and 2006-07 by the CIT (A). This deduction has also been allowed in A. Y. 2008-09 and 2009-10, i.e., two subsequent years of the present assessment year. These orders of the CIT (A) have been upheld by the Tribunal vide its order dt 18.07.2014. The finding of the Tribunal in order dt 18.07.2014 on this issue read as under 3. Aggrieved by the order of the AO,the assessee filed an appeal before the First Appellate Authority(FAA).Relying upon the decisions of the ITAT,Bangalore Bench in the case of Primal Projects Pvt. Ltd.(139ITJ233),the assessee argued that it was enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 4 tenants in the Industrial Park and the super built-up area of 1,38,000/-sq.ft was leased to M/s I Flex Solutions Ltd., which was more than 50% of the total allocable area. Objections raised by the AO were found to be invalid by the FAA, in view of the decision of the jurisdictional Bench of the ITAT in the case of Primal Projects Pvt. Ltd.(supra).Referring to the decision of the Primal Projects Pvt. Ltd.(supra),he held that the test was not who operated the independent units run in the multistoried structure, that it was also not in question whether all the stories were occupied by one tenant or different tenants, that the test to be applied was functional test, that the unit must be physically independent with independent facilities a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances, it was very difficult to ignore the contention of the assessee. The assessee had constructed multistoried buildings for the purpose of developing infrastructure facilities as approved by the Ministry of Commerce & Industry itself was a testimony that the assessee company had developed the infrastructure facility in the form of multi-storied structure to accommodate independent units to operate for themselves. Those identities and indualities did not disappear only for the reason that the entire developed area had been leased out to a single company. It was not possible to insist that every floor of the structure should be leased out to different companies. The test is not that who operates the independent units run in the multi-stori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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