TMI Blog2015 (10) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... rea 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-storied structure. It is also not the question whether all the stories are occupied by one tenant or different tenants. The test to be applied is the functional test. The unit must physically independent with physically independent with independent facilities and instrumentation, power connection, door number and the facility of functioning independently i.e every unit must be in a position to carry on its activities without depending upon other units even though all the units are situated under the same roof but in different floors. The assessee had successfully satisfied the above stated functional test of an independent unit - we uphold the impugned orders of the learned CIT (Appeals) in allowing the assessee's claim for deduction under Section 80IA(4)(iii) of the Act for Assessment Years 2005-06 and 2011-12 - Decided in favour of assessee. - I.T. A. Nos.1058 & 1059/Bang/2014 - - - Dated:- 4-9-2015 - SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI JASON ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, hereunder extract the grounds of appeal for Assessment Year 2005-06 1. The order of the learned CIT (Appeals) is opposed to law and the facts and circumstances of the case. 2. The learned CIT (Appeals) erred in directing the Assessing Officer to allow the deduction claimed by the assessee under Section 80IA(4)(iii) of ₹ 2,32,51,080 with 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 industrial park and the super built up area of 1,38,000 sq. ft. was leased to one tenant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. The learned Authorised Representative submitted that in view of the above orders of the co-ordinate bench, Revenue s appeals are liable to be dismissed. 5.3 Per contra, the learned Departmental Representative supported the orders of the Assessing Officer wherein the defects had been pointed out in the assessee's claim. It was also submitted that the Department must have challenged the cited orders of the Tribunal (supra) befor the Hon'ble High Court and therefore the issue is to be kept alive. 5.4.1 We have heard both parties and perused and carefully considered the material on record, including the decisions of the co-ordinate bench in the assessee's own case for earlier years (supra) relied on by the assessee. We find that the co-ordinate bench of the Tribunal in the assessee's own case in ITA No.1502/Bang/2013 dt.22.1.2015 for Assessment Year 2007-08, has upheld the assessee's claim for deduction under Section 80IA(4)(iii) of the Act following the decision of another co-ordinate bench in the assessee's own case in ITA Nos.921 to 924/Bang/2013 dt.18.7.2014 for Assessment Years 2004-05, 2006-07, 2008-09 and 2009-10. At paras 7 8 of its order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 and instrumentation, power connection, door number and the facility of functioning independently, that if the test laid down by the Tribunal was applied, the assessee satisfied the test and would become eligible for deduction u/s. 80IA(4)(iii) of the Act. 4. B efore us, Departmental Representative(DR)relied upon the order of the AO. Authorised representative(AR)supported the order of the FAA.We have heard the rival submissions and perused the material before us. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nit (para-15). Respectfully,following the above order, we decide the effective ground of appeal against the AO. ITA/922,923,924/Bang/2013-AY.s.2006-07,2008-09 2009-10: As stated earlier,effective ground of appeal for the remaining three AY.s.is similar to the effective ground for the AY.2004-05. As the fact,circumstances and issue for the AY.s. 2006-07,2008-09 2009-10 are same as of the AY.2004-05,so,following the order for that year we decided effective ground of appeal against the AO for above mentioned three assessment years. 08. We do not find any disparity on facts. The CIT (A) has allowed the claim of the assessee on the basis of its order passed in A. Y. 2004-05. That order has already been confirmed by the ITAT. Therefore, we do not see any reason to deviate from the earlier stand of the Tribunal. We do not find any merit in this appeal. 5.4.2 Following the decision of the co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2007-08 in ITA No.1502/Bang/2013 dt.22.1.2015, in which it followed the decision of an earlier bench in ITA Nos.921 to 924/Bang/2013 for dt.18.7.2014 for Asst. Years 2004-05, 2006-07, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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