TMI Blog2011 (5) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings as gospel truth and did not bother to verify the same. In appeal, the CIT(A) has confirmed this action of the AO, this approach, in our opinion, is a very superficial way of looking at things. Once the CIT(A) in the original quantum proceedings specifically directed the AO that deduction u/s.80IB(10) has to be allowed subject to verification it is not open to the AO to proceed to adopt the calculation made during survey operation without further verification. We, therefore, deem it fit and proper to remit the matter back to the file of the AO with specific direction to verify the area-wise calculation of all ineligible flats and allow deduction u/s.80IB(10) on pro-rata basis in respect of flats which are found to be eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CIT(A)-9 and vide order dated 30.3.2009, the CIT(A), inter alia, directed the AO as follows: The appellant s claim is supported by the decision of Hon ble Mumbai ITAT in the case of M/s. Saroj Sales Corporation ITA No.4008/M/07 order dt.24.1.2008 wherein on identical facts the Hon ble ITAT following the Hon ble Supreme Court decision in case of Bajaj Tempo Ltd reported in 196 ITR 188 has observed that the provisions should be interpreted liberally. Further, following the Hon ble ITAT decision in the case of Bengal Ambuja Housing Development Ltd Kolkata, the Hon ble Mumbai ITAT allowed the assessee s claim on prorate basis on qualifying units which specified the conditions laid down by section 80IB(10). The Hon ble ITAT Kolkata in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above judgments of the various ITAT and Courts and particularly the jurisdictional ITAT in the case of Saroj Sales Organisation (supra), I hold that asssessee is entitled for deduction u/s.80IB on pro-rata basis. The AO is therefore directed to allow the deduction u/s.80IB(10) subject to verification of the areawise calculation done during the course of survey operation. This ground of appeal is partly allowed. 3. In effect thus, the direction of the CIT(A) was that even though the assessee may have constructed some flats which are ineligible for deduction under section 80IB(10), the assessee has to be allowed deduction u/s.80IB(10) in respect of remaining flats i.e. eligible flats on pro-rata basis. 4. While giving effect to this d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per original assessment u/s.143(3) deduction u/s.80IB(10) allowed. Rs . 6,54,82,573 Less During survey u/s.133A, assessee has withdrawn the deduction u/s.80IB(10) on pro-rata basis. Rs . 3,37,36,621 Rs.3,17,45,952 Relief allowed by CIT(A) u/s.80IB(10) ₹ 3,17,45,952 Revised total income Rs.3,66,02,248 5. The assessee was aggrieved that the AO did not verify the area-wise calculation and simply proceeded on the basis of declaration made during the survey proceedings. He carried the matter in appeal before the CIT(A) but wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on made during survey operation without further verification. We, therefore, deem it fit and proper to remit the matter back to the file of the AO with specific direction to verify the area-wise calculation of all ineligible flats and allow deduction u/s.80IB(10) on pro-rata basis in respect of flats which are found to be eligible for deduction irrespective whatever statement may have made by the assessee during the survey operation. It is only elementary that the statements made in the course of survey proceedings under section 133A have no evidentiary value and when the assessee can demonstrate that the statement so made is at variance with actual facts, such statement cannot, by any stretch of logic, be used against the assessee. In othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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