TMI Blog2013 (2) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... in failing to appreciate that the area of the land on which the project was undertaken was not demarcated. 5. For these and such other grounds as may be urged at the time of the hearing, the order of the ld. CIT(A) may be vacated and that of the Assessing Officer be restored. 2. The solitary issue in controversy is whether the Ld. CIT(A) justified in holding that in respect of the area of the plot of land on which the eligible housing project is undertaken by the assessee, complies with the condition laid down in section 80 IB (10)(c) of the Act. The facts which reveal from the record are as under. The assessee is a firm engaged in construction business. Ground nos.1 to 5 of appeal are related to disallowance of deduction u/s 80IB(10) amounting to ₹ 2,05,56,550/-. It is contended by the assessee that in ground no.3, the Assessing Officer has wrongly observed that the commercial area in the project was more than 2000 Sq.ft., whereas there was no such commercial area in the project and further it was contended that the Assessing Officer has misdirected himself in possibly construing the common amenity space which was related to other project, which was not eligible for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol and dominion of the assessee firm. This area is 4,902 Sq. Mtrs. which is more than 1 acre. Both these agreements were executed to give effect to an Agreement to Sale dated April 5, 2006 which speaks of Building No 85, 89, 82, A4 and open space of 1,628 Sq. Mtrs. and internal roads of 2,017.87 Sq. Mtrs. All these agreements expressly speak of open space of 1,628 Sq. Mtrs on which the assessee has paid stamp duty separately. We also invite your attention to a Supplementary Agreement cum Confirmation deed dated May 5, 2008, wherein the assessee's exclusive dominion over open space has been brought out succinctly with a well demarcated plan of the land belonging to assessee. 2.1 The total project is situated thus on a single piece of land admeasuring 4,902 Sq. Mtrs and is thus eligible for deduction u/s 801B (10). 2.2 The Assessing Officer however has rejected the assessee's claim and has relied exclusively on Departmental Valuation Officer's (DVO) report. We submit that the DVO's report suffers from factual errors, misinterpretation, and inaccuracies with which we shall deal in following paragraphs: 2.3 In para 5.1 of the report, the DVO states that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct. All the agreements refer to earlier clearly bring out the fact that the open space belonging to assessee is clearly identified and demarcated. 2.8 In para 5.2.3 the DVO states that the plot should have one ownership, separate identification number. For this purpose he relies on the definition of plot given under Maharashtra Regional and Town Planning Act. 3. It is submitted that separate identification number etc. are not the requirement of Section 80IB (10). What is relevant of Section 80IB (10) that project should be situated on plot of land admeasuring more than 1 acre. As long as the assessee has a complete dominion over a continuous piece of land admeasuring more than 1 acre, the requirement of Sec 80IB(10) will be met. In this behalf we rely on Mumbai Tribunal decision in Vandana Properties 27 DTR 282. 3.1 On legal grounds we state that the definition of a plot as per Maharashtra Regional and Town Planning Act and adopted by the DVO is totally irrelevant in the context of Sec 801B (10) of the Income Tax Act. As has been held by the Supreme Court in various cases such as AIR 1981 SO 951, AIR 1985 SC 76 that the definition of an expression in one Act must not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the A.O. is regarding plot of land not 'demarcated in respect of the Bhujbal Township project. It was explained by the appellant before the A.O. that the area of 4902 sq. mtrs. of this project was a single piece of land on which the assesee firm had exclusive ownership rights and complete dominion, to the exclusion of others. It is further contended that the sub-division of the bigger chunk of land of this particular plot in the Municipal records was not at all required and not a precondition. It was also explained that the definition of plot adopted by The approved valuer in accordance with the Maharashtra Regional and Town Planning Act was irrelevant in the context of section 80IB(10) of the I.T. Act, for which the appellant has cited the judgement of the hon'ble Apex court reported in AIR 1981 SC 951 and AIR 1985 SC 76, to the effect that the definition of an expression in one Act must not be imported into another Act. As an example the appellant has explained that as per the approved valuer's definition, if a developer purchased 5 adjacent plots of 900 sq. mtrs. each from five different owners and starts a housing project, although the total area of the plot is 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three buildings comprised in the appellant's Bhujbal Township project was also a continuous area on the layout plan, of which the ownership for the purpose of development was of the appellant firm, by way of a development agreement, a duly registered document with payment of a consideration. This area was admeasuring 4902 sq. mtrs., which was more than 1 acre. The appellant has also explained that the approved valuer's statement that the project has 26 buildings in the plot admeasuring 40,700 sq. mtrs. was not which the impugned land area was acquired by the appellant through a registered development agreement. It was only for the particular area related to these three buildings that the rights were taken by this firm by way of registered document and payment of consideration, and which has been utilised for the 'Bhujbal Township' project. Therefore, the appellant had total dominion and control for 4902 sq. mtrs for the purpose of development of this project. The appellant's contention in this regard is therefore found to be acceptable and the A.O's rejection of claim on the ground of area not demarcated is not tenable in law. 3.8 So far as the observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if any such contingency arises. In accordance with the discussion made above, ground of appeal regarding deduction u/s 80IB(10) is held to be allowable for the appellant's project and accordingly ground nos. 1 4 of appeal are allowed. Since these grounds are allowed, there is no need to adjudicate on ground no. 2. Now being seriously aggrieved by the decision of the Ld. CIT(A), revenue is in appeal before us. 5. We have heard the rival submissions of the parties and perused the record. The assessee has filed the paper book which has been also perused. It is seen that the project is situated in survey no.67 and consist of the building B- 5, B-9 B-2. The survey no.69 is having the area of 40,700 sq.mtrs. and the entire property belong to Bhujbal family and it is the ancestral property. The present assessee firm is consisting of the family members as partners. There was a MOU with the bigger Bhujbal family and an area of 4902 sq.mtrs. out of the total area of 40700 sq.mtrs. in the survey no.67 was acquired by the said Partnership firm for the development vide agreement dated 13.4.2006 and 21.8.2007 which is also duly registered with the sub-registrar. The assessee firm p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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