TMI Blog2018 (7) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... tive ground is declined Disallowing assessee’s late payment pertaining to the employees contribution to PF - Held that:- We find herein as well that the hon’ble jurisdictional high court’s decision in Vijayshree Ltd. [2011 (9) TMI 30 - CALCUTTA HIGH COURT] has settled the law holding that such payment before the due date of filing return u/s 139(1) as allowable. We accordingly reject Revenue’s instant last and substantive ground as well. - ITA No. 575 /Kol/2016 - - - Dated:- 20-7-2018 - Shri J. Sudhakar Reddy, AM And Shri S. S. Godara, JM For the Appellant : Shri Saurabh Kumar, Addl. CIT, Sr.DR For the Respondent : Shri Miraj D.Shah, AR ORDER Per S. S. Godara, JM This Revenue s appeal for A.Y.2011-12 arises against the CIT(A)-2, Kolkata s order dated 14.01.2016 passed in Appeal No.1818/CIT(A)-2/2014-15 reversing the Assessing Officer s action inter-alia disallowing/adding amounts of ₹ 11,33,631/-, ₹ 3,83,86,103/- and ₹ 70,355/- corresponding to section 14A r.w. rule 8D, section 80IB deduction claim on account of late payment of employees contribution to PF; respectively in assessment order dated 28.03.2014, involving proceedings u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent of the profits derived in the previous year relevant to any assessment year from such housing project if,- (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (e) not more than one residential unit in the housing project is allotted to any person not being an individual; and (f) in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely: (i) the individual or the spouse or the minor children of such individual, ITA No. 575/Kol/2016 M/s RDB Realty Infrastructure Ltd. Pvt. Ltd. A.Y.2011-12 3 (ii) the Hindu undivided family in which such individual is the karta, (iii) any person representing such individual, the spouse or the minor children of such individual or the Hindu undivided family in which such individual is the karta. [sub-section (e) and (f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' must have the same connotations as assigned to it by local authorities granting approval to the project. The local authority had approved the building plan with residential units of less than 1,000 sq.ft. and granted completion certificate as such. That leaves no ambiguity about the factual position. We have further noted that the prohibition against sale of more than one flat in a housing project to members of a family has been inserted specifically with effect from 1-4-2010 and, in our humble understanding, this amendment in law can only be treated as prospective in effect. What is, therefore, clear is that so far as pre- amendment position is concerned, as long as residential unit has less than specified area, is as per the duly approved plans and is capable of being used for residential purposes on stand-alone basis, deduction under section 80-1B(J0) cannot be declined in respect of the same merely because the end user, by buying more than one such unit in the name of family members, has merged these residential units into a larger residential unit of a size which is in excess of specified size. That precisely is the case before us. While on the subject, it is useful to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the adjacent residential units, each less than 1,500 sq. ft. in size, and allotted I sold before 0110412010, to the same companies or to the family members, cannot be considered as one-unit..-In-this case,- flats in question were allotted in the calendar years 2007 and 2008 and therefore, there was no violation of any provision of section 80IB(10) of the Act. (ii) There was also no violation of clause (c) of section 80-IB(10) as size of each flat being an independent residential unit was less than 1,500 sq. ft., as evident from building plan as duly approved by the Municipal authority as well as granted completion certificate by the Municipal authority and also evident from registered sale deed. ' 4.5. As regards AO s contention that the director and the AR of the assessee company had admitted about certain violations of qualifying conditions during the assessment proceedings, the AO has not elaborated the same. Nevertheless, it is only elementary that a legal claim cannot be declined only because the director or AR stated something. In the light of above discussions, and bearing in mind entirety of the case, the AO is directed to allow. assessee's claim of de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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