TMI Blog2012 (4) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... available on record. 02 On the facts and circumstances of the case as well as in law, the Ld. CIT(A) erred in directing Assessing Officer to grant deduction u/s. 801B (10) of the Income Tax Act, 1961 without considering the facts that area of some of the flats exceeds 1500 square feet Section 8OlB(10) (10)(c) disentitling the assessee to claim deduction u/s. 801B (10). 03 On the facts and circumstances of the case as well as in law, the Ld. CIT(A) erred in law to allow deduction u/s.801B(10) ignoring the fact that only one combined project was approved which was conveniently divided later on, into two separate projects that is Residential Project and Commercial Project to be run by the assessee and MIs. R. K. Associates (Siste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roject is not disputed as it is less than 1500 sq.ft. However, the assessee has received the consideration in some of the flats for more than 1500 sq.ft area which includes built up area plus the common area and may be called as super built up area . It is pertinent to note that when the project has been sanctioned and the completion certificate has been issued as per the sanctioned plant which is for the residential flats having less than 1500 sq.ft, then even if the assessee has received the consideration for more than 1500 sq.ft in some of the flats, which would not constitute violation of conditions as prescribed u/s 80IB(10)( c) because the built up area is less than 1500 sq.ft. The CIT(A) has given the details of the flats in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 601 132.34 1424.51 602 132.81 1429.57 603 132.63 1427.63 701 132.34 1424.51 702 132.81 1429.57 703 132.81 1429.57 801 132.34 1424.51 802 132.81 1429.57 803 132.63 1427.63 901 132.34 1424.51 902 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 702 129.03 1388.88 703 129.02 1388.77 801 129.47 1393.62 802 129.03 1388.88 803 129.02 1388.77 901 129.47 1393.62 902 129.03 1388.88 903 129.02 1388.77 4.3 This factual aspect has not been disputed before us. Therefore, when each of the flats have been constructed as per the building plan duly approved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts for residential and commercial was sanctioned by the PMC. Therefore, the Assessing Officer took the entire project as one as the layout of the development of the building was approved by the PMC by one approval. Without going into the controversy, whether the residential or commercial project are two separate projects or parts of once project, we are of the view that as per the preamended provisions of sec. 80IB(10), there is no such condition of commercial area in the project; therefore, once a project has been approved prior to 1.4.2005 by the Municipal Authorities, then in the absence of any such condition in the provisions of sec. 80IB(10) as exits at the relevant point of time, the subsequent amendment w.e.f 1.4.2005 cannot be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the absence of any provisions under the Income-tax Act, the Tribunal was not justified in holding that up to March 31, 2005 deduction under section 80-IB(10) would be allowable to projects approved by the local authority having residential building with commercial user up to 10 per cent. of the total built-up area of the plot. (d) Since the deduction under section 80-IB(10) is on the profits derived from the housing projects approved by the local authority as a whole, the Tribunal was not justified in restricting the section 80-IB(10) deduction only to a part of the project. However, in the present case, since the assessee has accepted the decision of the Tribunal in allowing section 80-IB(10) deduction to a part of the project, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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