TMI Blog2011 (7) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... aid down u/s 80IB inasmuch as built up area of 10 units exceeds 1500 sq.ft. and accordingly confirmed the findings of the AO that deduction u/s 80IB cannot be allowed. ( 2) The ld. CIT(A)-XV, Ahmedabad has erred in not allowing deduction u/s 80IB(10) on remaining units, the built up area of which is less than 1500 sq.ft. and the same is not disputed by the AO. 2. The facts of the case are that the assessee is a partnership firm, engaged in the business of development of housing project. During the year under consideration the assessee has completed construction work of a housing project with Achal Co-op. Housing Society Ltd., at Chandkheda, Ahmedabad and had shown gross turnover of ₹ 4,69,80,897/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion may be granted for the flats constructed having built up area of less than 1500sq.ft. The AO considered all the submissions made by the assessee and held that the assessee had constructed Type-A bungalow in respect of Scheme Achal -1 in violation of the conditions of Section 80IB(10) of the Act and accordingly issued a show cause notice on 29.11.2007 to the assessee as to why the deduction claimed u/s 80IB(10) be not disallowed. In the said notice, the AO has referred to the Development Permission given by AUDA on 18.04.2002, 9.12.2003, B.U. Permission given by AUDA on 21.08.2004 and held that total built up area is more than 1500 sft. 3. The assessee went in appeal before the CIT(A) wherein similar submissions were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having appointed and authorized the Developer/Builder to develop/built the said housing project under the name Achal-1 Duplex Tenements/Duplex row houses by constructing thereon building/s consisting of residential duplex tenement/duplex row house along with the work of development of basic common infrastructure amenities like construction of roads, common plots etc. installing of electric light-poles and at each place in the agreement the word used for the unit constructed is duplex tenement/duplex row house. Mudra Builders constructed Type- A and A1 bungalows in the project whose built up area exceeded 1500 sq.ft. This has been confirmed by the District Valuation Officer whose report was made available to the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tirety. Only with reference to the flats which had more than the prescribed area, the assessee would lose the benefit. ( 3) ITO vs. Air Developers (123 TTJ 959 (Nag) In this case it is held that AO has worked out the built up area after including the area of the balcony Relevant facts not examined in the light of the said regulation therefore, the AO is directed to determine the built up area of the residential units by applying the Development Control Regulation, 2000, and to allow proportionate deduction under s.80IB(10) if he finds that the built up area of some of the residential units exceeds 1,500 sq.ft. ( 4) G.V. Corporation vs. ITO 38 SOT 174 (Mum) In this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal are allowed to the extent indicated hereinbefore. 5. The ld. DR did not have objection for remitting back the case to the file of ld. AO for passing necessary orders in accordance with the ratio laid down as per the above judicial pronouncements. 6. We have heard the rival submissions and perused the records. It is evident from the above that the assessee is entitled for claiming deduction u/s 80IB of the Act proportionately for the flats constructed within the prescribed limits of 1500 sq.ft. By following the above judicial pronouncements we remit the matter back to the file of the ld. AO with the direction to pass appropriate order on merits and law keeping in view of the above judicial pronouncements ..... X X X X Extracts X X X X X X X X Extracts X X X X
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