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2016 (9) TMI 295 - DELHI HIGH COURT

2016 (9) TMI 295 - DELHI HIGH COURT - TMI - Deduction under Section 80IB(10) - Held that:- It is not disputed that the housing projects referred to as Omaxe Grandwoods (GH-03), Noida and Omaxe Palm Greens-I, Greater Noida are real estate developments that are complete on a stand-alone basis. The said projects comprise of towers of residential units alongwith common areas, facilities and amenities for the residents of those towers. Thus, considered on a standalone basis, the said real estate deve .....

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, it includes the dwelling units, the necessary infrastructure, common areas and common facilities for the residents of the dwelling units would constitute a housing project for the purpose of Section 80IB of the Act and we find no infirmity with the decision of the CIT(A) and the ITAT. - The decision in the case of Brahma Associates (2011 (2) TMI 373 - BOMBAY HIGH COURT ) is wholly inapplicable in the facts of the present case wherein held that the commercial establishments, which were a p .....

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r Section 80IB; in the present case, the finding is that the income from the housing schemes in respect of which deductions are claimed are by themselves standalone complete housing projects. - Decided in favour of assessee - ITA 327/2016, ITA 328/2016, ITA 329/2016, - Dated:- 20-5-2016 - S. MURALIDHAR & VIBHU BAKHRU JJ. Appellant Through: Mr Rahul Chaudhary, Senior Standing counsel with Mr Raghvendra Singh, Junior Standing counsel. O R D E R CM No.18872/2016 in ITA 327/2016 CM No.18873/2016 .....

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& 4032) were filed by the Revenue against the orders dated 28th June, 2013, 13th March, 2013 and18th March, 2013 passed by the Commissioner of Income Tax (Appeals) [CIT(A)] allowing the Assessee s respective appeals for AYs 2007-08, 2008-09 and 2009-10 against the disallowance of deduction under Section 80IB(10) of the Act in respect of two of its projects, namely, Omaxe Grandwoods (GH-03) Noida and Omaxe Palm Greens-I, Greater Noida . 4. In these appeals, the Revenue has projected the foll .....

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bunal erred on the facts and in law in allowing deduction under section 80IB(10) of the Income Tax Act, 1961 on proportionate basis? 5. OMAXE BUILDHOME P. Ltd. (hereafter the Assessee ) is a public limited company and, is, inter alia, engaged in the business of real estate development and construction of residential/housing projects. 6. The Assessee filed its return of income for AYs 2007-08, 2008-09, 2009-10 claiming the deduction under Section 80IB of the Act, inter alia, claiming deduction un .....

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t to certain buildings which were a part of housing projects and did not qualify to be termed as separate housing projects. 8. The AO held that the project 'Omaxe Grandwoods Noida' was a singular housing project spanning over 29.41 acres consisting of units developed to plots of land shown as GH-01, GH-02 and GH-03. Admittedly, the towers constructed on plots marked as GH-02 and GH-03 did not confirm to the conditions as stipulated under Section 80IB(10) of the Act. Since, according to t .....

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stituted only a part of a larger development. The AO did not accept the Assessee s contention that 11 towers built over 8.4 acres in the case of Omaxe Grandwoods (GH-03) and 24 towers built over 25.83 acres constituted separate housing projects for the purposes of Section 80IB(10) of the Act. 9. Aggrieved by the decision of the AO, the Assessee preferred appeals before the CIT(A) for the respective AYs. The CIT(A) examined the facts and noted that Omaxe Grandwoods (GH-03) Noida consisted of towe .....

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f land, GH-03, was separated by road. The CIT(A) observed that each group housing scheme envisaged its separate common facilities and amenities. The land allotted for housing scheme GH-01, GH-02 and GH-03 measured 119020.12 sq. mtrs. (29.41 acres) out of which the plot relatable to GH-03 measured 8.4 acres. On the aforesaid basis, the CIT(A) accepted the Assessee s contention that the GH-03 qualified as a separate housing project and complied with all the conditions as specified under Section 80 .....

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ct of which deduction was claimed by the Assessee consisted of 24 towers comprising of residential units having a constructed area of less than 1500 sq. ft. built on an area measuring 25.83 acres of land. The CIT(A) held that this housing project was separable from the project that consisted of 11 towers built over 24.174 acres, which admittedly was not eligible for benefit under Section 80IB of the Act. The CIT(A) held that since both the housing schemes were separated by roads and had separate .....

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a whole qualifies the conditions as specified under Section 80IB(10) of the Act. He contended that the CIT(A) and the Tribunal had erred in separating the eligible portion of the project from the ineligible portion for allowing the deduction under Section 80IB of the Act. He referred to the decision of the Bombay High Court in Commissioner of Income Tax v. Brahma Associates: [2011] 333 ITR 289 in support of this contention. 13. The question whether a housing scheme constitutes a separate housing .....

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Grandwoods (GH-03) and Omaxe Palm Greens-I were complete and independent real estate developments as the same not only consisted of built-up residential buildings but also separate common facilities and amenities provided for the residential units of the housing project. 14. None of the aforesaid facts are in dispute. It is not disputed that the housing projects referred to as Omaxe Grandwoods (GH-03), Noida and Omaxe Palm Greens-I, Greater Noida are real estate developments that are complete on .....

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