TMI Blog2015 (7) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... sec. 80IB(10) even in case where the units constructed were of more than 1500 sq.ft. Therefore, we find no good reason to interfere with the order of the Commissioner of Income Tax (Appeals) which is hereby confirmed and the ground of appeal of the assessee as well as that of the Revenue are dismissed. - ITA Nos. 19 to 23/PNJ/2015, ITA Nos. 62 to 65/PNJ/2015 - - - Dated:- 14-7-2015 - SHRI N.S. SAINI, HON BLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HON BLE JUDICIAL MEMBER For the Assessee : Shri Hubert Fernandes Manager (Finance). For the Department : Shri Anand Shankar Marathe -DR ORDER PER N.S. SAINI, ACCOUNTANT MEMBER I.T.A.Nos. 19 to 23/PNJ/2015 and I.T.A.Nos. 62 to 65/PNJ/2015 are the cross appeals filed by the assessee and the Revenue against the order of Commissioner of Income Tax (Appeals), Panaji, dated 05/11/2014. 2. In all the appeals, the common ground of appeal taken by the assessee is that the Commissioner of Income Tax (Appeals) erred in disallowing proportionate deduction under sec. 80IB of the Act. 3. The common ground of appeal taken by the Revenue in all the years under consideration is that the Commissioner of Income Tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the deduction under sec. 80IB(10) on proportionate basis. 13. The Departmental Representative relied on the order of the Assessing Officer. 14. On the other hand, the Authorized Representative of the assessee submitted that the assessee developed and sold the flats in line with approved plans/construction license/occupancy certificate issued by the competent/statutory authorities and agreement for sale entered by the builders/developers with purchasers. He argued that in addition to adherence of clause c of sub-section (10) of section 80IB of Income Tax Act, all other prescribed conditions for availing the exemption under sec. 80IB (10) were duly complied with. Therefore, there was no question of disallowing the claim for deduction to the assessee under sec. 80IB(10). 15. After considering the submissions of the Departmental Representative and perusing the materials available on record, we find that in the assessment years under consideration, the Assessing Officer has denied deduction under sec. 80IB(10) to the assessee on the ground that some of the units constructed in the housing projects were of 2000 sq.ft. and that sec. 80IB(10) provides for construction of unit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat at the stage of the approval of plan, each unit was smaller than the maximum area as envisaged in the conditions for availing benefit of deduction u/s.80 IB(10). However, this is also a fact that at the time of sale, many units were sold to the members of same family and two smaller adjacent units were merged to make one larger unit. This merging was done at the request of the buyers, at the construction stage itself by none other than the promoter himself. Facts of this case are similar to that of M/s. Miraj Enterprises. In this case, the A.O. disallowed the claim of deduction u/s.80 IB(10) on the ground that many units were larger than the prescribed area u/s.80 IB(10). The CIT (A), in his order directed the A.O. to allow deduction, because the alterations were made after the flats were sold, which was beyond the control of the promoter. The ITAT confirmed the order of the CIT (A) and Honourable High Court dismissed the appeal of the revenue, saying that no substantial question of law arise. The only difference in facts in the above mentioned case and the instant case is that, in this case, alterations were made by the promoter during the construction stage itself, albeit at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 1349 of 2007 dated 10.10.2012 for grant of relief under Section 80 IB(10) of the Act on a proportionate basis, by following the decision of the Bombay High Court reported in [2011] 333 ITR 289 (CIT Vs. Brahma Associates). Thus applying the decision of this Court in T.C. Nos. 1348 and 1349 of 2007 dated 10.10.2012, we hold that the assessee is entitled to succeed both on the principle of proportionality as well as by reason of the construction on the meaning of the expression housing project as referring to construction of any building and the wordings in Section 80IB(10) of the Act. In the circumstances, we hold that the mere fact that one of the blocks have units exceeding built-up area of 1500 sq.ft., per se, would not result in nullifying the claim of the assessee for the entire projects. Consequently, in respect of each of the blocks, the assessee is entitled to have the benefit of deduction in respect of residential units satisfying the requirement under Section 80 IB(10)(c) of the Act. In so holding, we also agree with the decision of the Bombay High Court reported in [20121 206 TAXMAN 584 (CIT v. Vandana Properties), which was decided by the Bombay High Court on similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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