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TMI Blog2015 (3) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... construction commercial and housing projects, etc. The group is also known as 'Regency Group' which is substantially engaged in steel rolling mill and commercial/housing projects. 3. Search was carried out at Konark Group of companies and also the residential premises of the assessee. During the course of search several incriminating materials were found and therefore a notice under section 153A was issued and served on the assessee in respect of which the assessee declared total income of Rs. 1,14,75,900/-, as declared in the original return filed under section 139(1) of the Act. Assessee claimed deduction under section 80IB(10) of the Act to the tune of Rs. 2,62,13,437/- since he was a builder and developer having proprietorship concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the local authority for three buildings, i.e. A, B and C on the land admeasuring 3147 sq.mts. (net area of plot) which is less than one acre. Though in the third approval of Pune Municipal Corporation the land size was increased to 4050 sq.mts. as gross area of plot, after deducting area for road and open space the net area was worked out to 3192 sq.mts. only. Further, assessee had taken TDR from Shri Satish Majar, Pune for expanding the building from parking plus one to parking plus four floors. These changes were made by the assessee on his own and hence he is not eligible for deduction under section 80IB(10). He has also taken note of the CBDT clarification (circular No. 5 of 2005) to observe that though the section does not speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80IB(10) of the Act in which event the view taken by the Commissioner can at best be considered as a change of opinion which is not permissible under section 263. It was also contended that the learned Commissioner erred in relying upon various judicial pronouncements, which are distinguishable and the Revisional Authority ignored the decision of the jurisdictional Bench of ITAT/High Court which was relied upon by the assessee in the course of proceedings under section 263. The learned counsel for the assessee filed paper book containing 105 pages and also a fact sheet to briefly bring out the facts. The case of the learned counsel for the assessee is that during the course of assessment proceedings the AO made independent inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of construction as a Builder. It purchased land admeasuring 4600 sq.mts., which was demarcated into three plots and the layout was sanctioned by Pune Municipal Corporation wherein an area admeasuring 690.70 sq.mts. was reserved for amenity space which was to be handed over to Pune Municipal Corporation in which event the net area available for the project has become 3909 sq.mts. Under these facts the Bench observed that the language of section 80IB(10) shows that the project has to be on the size of a plot of land which has a minimum area of one acre and all the calculations and specifications are based upon the area of 4600 sq.mts. In other words, granting of FSI, calculation of amenities, etc. were based upon the area of land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that it was not the case of the AO or CIT, at any stage, that FSI was utilised for any other purpose. In other words, merely because the net area of plot has been worked out by the Pune Municipal Corporation only for the purpose of determination of TDR permissible, it cannot be taken into consideration for the purpose of considering the conditions prescribed under section 80IB(10) of the Act. He also submitted that the ITAT, Pune Benches has specifically considered the circular and the fact that the builders who sacrifice amenities, space but should not be in a disadvantageous position because the development authority sanctions additional FSI on the space earmarked for amenities and under these facts ITAT, Pune Benches had taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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