TMI Blog2012 (11) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. The sum and substance of the grievance raised by ground No. (i) to (v) is that the Ld. CIT(A) ought not have allowed the claim of deduction u/s. 80IB(10) for the project Purva Riviera when several flats had a built up area exceeding 1500 Sq.ft. 3. The facts giving rise to the dispute show that a search and seizure action u/s. 132 of the Act was conducted in the case of the assessee company, its group concerns, directors and related persons on 15.11.2007. The assessee company is a builder and developer. It has developed projects in Bangalore. The assessee follows percentage completion method of accounting. During the course of the assessment proceedings, the Assessing Officer observed that the assessee has claimed deduction u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are of 1625 sq.ft built up area . 5. Statement of Smt. Shravani Pandit resident of flat No. 205J Block: The statement of Smt. Shravani Pandit resident of flat No. J 205 reveal that flat No. 205 is a three bed room, three toilets, three enclosed balconies, one utility space alongwith kitchen has super built up area of 1780 sq.ft. The statement also reveals that the occupants have not merged or changed two flats and since its inception this flat No. 205 had super built up area of 1780 sq. ft. 6. Construction Plan of flat No. 205 and 206: The construction plan of flat No. 205 and 206 show that both are a single unit only and it has been constructed as single unit of 3 BHK only. Therefore, it cannot be said that RJ 205 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the pre-requisites of the section 80 IB(10) and had given possession in that manner however, subsequently, the flat owners changed the configuration of the flats and converted two flats into one for which the appellant cannot be penalized by not allowing the deduction under section 80 IB (10). The appellant had relied on the following decisions, which would entitle the appellant to get deduction u/s. 80IE. (i) Vandana Properties vs. ACIT, ITA No.1253/Mum/2007 decided on 29/04/2009 by Hon'ble ITAT, Mumbai. (ii) Brahma Associates vs. JCIT, Pune (122 TTJ 433) laid down by Special Bench of Pune Tribunal. (iii) ITO v/s. Air Developers, ITA No.477/Nag/2007 decided by Hon'ble ITAT, Nagpur. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same time has not withdrawn or retracted from the statement by bringing any cogent material evidence on record for the same . The DR strongly relied upon the decision of Brahma Associates 383 ITR 289 [ Bombay ] 9. The Ld. Counsel for the assessee reiterated that there is no violation of any of the conditions prescribed u/s. 80IB(10) of the Act. The Counsel pointed out that the statement of Shri N.R. Choksey referred to by Ld. DR itself show that the director has categorically stated that the flats sold are within the norms of Sec. 80IB(10) each measuring less than 1500 sq. ft of built up area, it is only to buy peace of mind , the Director offered to withdraw the proportionate claim u/s. 80IB(10) of the Act in respect of Purva R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in strict sense yet the CIT [A] has based his finding without affording any opportunity to the AO to examine the same. At the same time the CIT [A] has not discussed the evidences / statements brought on records by the AO, to discard the findings of the AO. Incidentally, the AO and the CIT(A) both have violated the principles of natural justice therefore in the interest of justice and fair play, we restore this entire issue back to the file of the AO. The AO is directed to take up the assessment proceedings de novo so far the claim of deduction u/s 80IB[10] is concerned . It is suggested that the AO should get the physical verification of the flats at J and K Block of the project through the DVO .It is also suggested that the each and every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order. We find that a similar issue came up for consideration in A.Y. 2001-02 wherein the dispute travelled upto the Hon'ble Jurisdictional High Court in ITA Nos. 4975/4976 and 4977 of 2010, wherein the Hon'ble High Court of Bombay has thus held as under: The finding of fact recorded by the Commissioner of Income Tax (Appeals) and approved by the Income Tax Appellate Tribunal is that in the present case, it is not in dispute that the assessee is entitled to 801B deduction. The only dispute is whether the assessee is entitled to the deduction in respect of the amount received towards car parking space. The finding of fact recorded by the Commissioner of Income Tax (Appeals) and approved by the Income Tax Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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