TMI Blog2019 (3) TMI 1132X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the conclusion arrived by us in the earlier part of this order. AO disallowed the claim by taking a hyper technical approach and on his own whims and surmises which is clearly by the scheme and mandate of provision of u/s. 80IB(10) of the Act - No ambiguity, perversity or any other valid reason to interfere with the findings arrived by the CIT(A) in dismissing the allegations and contentions of the AO and in allowing deduction u/s 80IB(10) of the Act to the assessee on the amount accrued to him on sale of flats measuring less than 1500 sq.ft. per unit. Considering the totally of facts and in the light of the above decision of Tribunal in the case of the assessee itself, we find that the issue is covered by the decision of ITAT in favour of the assessee and no reason to deviate with the finding of CIT(A), accordingly same is upheld. - Decided against revenue. - I.T.A. No.673/AHD/2016 - - - Dated:- 28-2-2019 - Shri Kul Bharat, Judicial Member And Shri O.P. Meena, Accountant Member For the Assessee : Shri Hardik Vora Advocate For the Revenue : Shri Sreenivas T.Bidari CIT-DR ORDER PER O.P.MEENA, AM: 1. This appeal filed by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sold the Flats as a Builders Developers and not as a contractors. Further AR argued that the Housing Project of the appellant, consisting of Flats Row Houses, was duly approved by appropriate authorities and appellant has complied with all the requisite conditions of Section 80IB(10) of the Act. Further AR of the appellant brought to my notice that as the Built up areas of the Row Houses are more than 1500Sq. Ft. it has not claimed deduction U/s. 8oIB(10) in respect of Profit from the Sale of Row House. Further AR of the appellant explained that in respect of Sale of Flats and in respect of Sale of Row Houses appellant has prepared two separate Profit Loss A/c. In support of it's claim for deduction U/s. 80IB(10) in respect of Profit from the Sale of the Flats AR of the appellant strongly relied upon the decisions of Ahmedabad Tribunal in the case of Radhe Developers and of Calcutta Tribunal in the case of Bengal Ambuja and pointed out that Hon. Calcutta High Court has dismissed department's appeal. AR of the strongly contended that, in the given facts Assessing Officer is not justified in placing reliance on the observations of the Survey Party especially when he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the cities 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 ; and (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed five per cent, of the aggregate built-up area of the housing project or two thousand square feet, whichever is less. Further, the retrospective amendment vide Finance Act (No.2),2009 it was stated that the objectives of this tax concession was to provide tax benefit to the person undertaking the investment risk i.e. actual developer. Let us examine whether the appellant had fulfilled the conditions in this case; The appellant submitted that within the meaning of the provisions of Section 80IB(10), the Appellant is entitled for deduction of the entire profit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the sale of the Flats the appellant has not violated any of the conditions of section 80IB(10) and as the appellant has not claimed deduction U/s. 80IB(10) in respect of the profit from the Sale of the Row Houses, appellant is eligible for deduction U/s. 80IB(10) of the Act in respect of Profit from the Sale of Flats. The appellant also further buttress its case by citing two more judgements of Hon'ble ITAT - Essem Capital Market Ltd vs. ITO (2011) TIOL 196 (Mum.) and ITO vs. M.S.Vishnu Developers, (Ahm. ITAT). In view of the factual and legal position narrated above, the AO is directed to allow benefits U/s.80IB(10) of the Act claimed by the appellant. The appellant succeeds on this ground of appeal. 13. On careful consideration of above rival submissions and findings of the AO in the assessment order as well as conclusion arrived by the ld. CIT(A) in the impugned first appellate order first of all, we may point out that the main points on which the AO denied deduction u/s. 80IB(10) of the Act has been summarized by the ld. CIT(A) as follows: 5-2 AO's Observations: I have perused the findings of the AO in the Assessment Order. The Learned Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, contention of the AO in this regard is not sustainable and ld. CIT(A) was right in dismiss the same. 15. So far as second allegation and basis taken by the AO for disallowing deduction u/s. 80IB(10) of the Act i.e., entire housing project is to be treated as single unit is concerned, we are of the view that neither the AO nor ld. DR during the arguments before us, could not controvert the fact that the assessee maintained separate books of accounts for flats and row houses and he has not claimed any deduction on the row houses which are measuring from 2000 sq. ft. to 2200 sq. ft. and claim of s. 80IB(10) of the Act has been made only on the income from sale of flats which are measuring less than 1500 sq. ft. On this issue the ratio of the decision of Hon'ble High Court of Madras in the case of Vishwas Promoters Pvt. Ltd. (supra), as has been vehemently relied by the ld. AR, provides support to the claim of the assessee wherein it has been held that the mere fact one of the blocks have units exceeding built-up area of 1500 sq. ft. per se, would not result in nullifying the each of the blocks, the assessee is entitled to have the benefit of deduction in respect of reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Madras in the case of Vishwas Promoters Ltd. (supra), it was held that the s. 80IB deduction on construction of a housing project on a plot having area of one acre is available, irrespective of fact that other housing projects exist on said land. In the present case, it is not an allegation of the AO that the housing project has been build or develop on a land having area of less than one acre, but he denied the deduction on the allegation that entire housing project to be treated as single unit which is not correct and justified in view of the conclusion arrived by us in the earlier part of this order. 18. On the basis of foregoing discussion, we reach to a logical conclusion that the AO disallowed the claim by taking a hyper technical approach and on his own whims and surmises which is clearly by the scheme and mandate of provision of u/s. 80IB(10) of the Act and ratio of the decision of Hon'ble High Court of Bombay, High Court of Madras and Hon ble Jurisdictional High Court of Gujarat as respectfully noted above. We, therefore, are unable to see any ambiguity, perversity or any other valid reason to interfere with the findings arrived by the ld. CIT(A) in dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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