TMI Blog2016 (3) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... issue needs re-consideration by the A.O. on similar lines as in the earlier assessment year. - Decided in favour of assessee and Revenue for statistical purposes. - ITA No. 106/Hyd/2015, ITA No. 124/Hyd/2015 - - - Dated:- 10-2-2016 - P. Madhavi Devi, JM And S. Rifaur Rahman, AM For the Appellant : Mr A Srinivas For the Respondent : Mr M Sitaram ORDER Per Smt. P. Madhavi Devi, JM The appeals are for the A.Y. 2010-2011. ITA.No.106/Hyd/2015 is the appeal of the Assessee against the order of the Ld. CIT(A) in restricting the assessee's claim of deduction under section 80IB of the I.T. Act and ITA.No.124/Hyd/2015 is filed by the Revenue against the order of the Ld. CIT(A) in holding that assessee is eligible for ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction of Cellar, stilt and nine floors and 9,673 sq. mts. of constructed area with 12 flats per floor and a total of 108 residential units. He observed that as per the development agreement with the land owners, the assessee firm had agreed to give 41% of the constructed area (inclusive of common areas) and one car parking per flat to the land owners. The A.O. further observed that as per the initial municipal plan, the assessee obtained permission only for the development of cellar, stilt plus 9 upper floors with a total constructed area of 9763.76 sq. mts. Whereas, the assessee firm constructed 16307.60 sq. mts. and claimed deduction for the entire constructed area. He observed that the assessee is eligible for deduction only in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction under section 80IB(10) of the Act and proceeded to estimate the income of the assessee at 12.5% of the total turnover. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) who held that the assessee is eligible for deduction under section 80IB(10) of the Act but restricted it to the constructed area of 9763.76 sq. mts on proportionate basis. As regards the estimation of income, Ld. CIT(A) followed his own order in the assessee's case for A.Y. 2009-10, wherein it was held that it was not proved that books of account were not produced by the assessee or such books are not reliable and that for this assessment year also, there is no basis for the estimation of income. He accordingly deleted the addition made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has remanded both the issues to the file of the A.O. for re-consideration. 4. The Ld. D.R., on the other hand, relied on the orders of the authorities below. 5. Having regard to the rival contentions and the material on record, we find that all these issues had arisen in the assessee's own case in the earlier assessment year, i.e., A.Y. 2009-10 and this Tribunal has upheld the order of the Ld. CIT(A) in holding that the assessee is eligible for deduction under section 80IB(10) as the permission was obtained for the project and it was not really important that the permission was in the name of the land owners. As regards the excess of the constructed area and the allowability of the deduction on the entire building and also on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80IB(10). Needless to say that balconies and common areas are not to be considered as part of 'flat area' as per the decisions of the Coordinate Bench on the issue. However, the pent house constructed and the additional space for which revised plans were taken should be examined whether the project itself is eligible for 80IB (10), on which there is no finding from the A.O. or by the CIT(A) in the orders. Not only that as seen from the P L account assessee is still carrying closing stock of more than ₹ 4 crores, whereas sales during the year was ₹ 6.24 crores. Whether assessee has continued to claim 80IB(10) in later year also on the balance of constructed area required to be examined, keeping in mind th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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