TMI Blog2018 (5) TMI 2053X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 sq. ft., it was entitled to claim deduction under section 80-IB(10) pro rate for housing units having area of less than 1500 sq.ft., Bangalore Tribunal in case of SJR Builders [ 2009 (8) TMI 953 - BANGALORE TRIBUNAL COURT] held that merely because some flats were larger than the specified limit of 1500 sq.ft., the assessee would not lose the benefit in its entirety. Only with reference to the flats which had more than the prescribed area, the assessee would lose the benefit. We find that there is no illegality and infirmity in the order passed by ld. CIT(A) in directing the Assessing Officer to allow the proportionate deduction under section 80IB(10). No contrary, the decision is brought on record the notice to take the different view. In the result, ground of appeal raised by Revenue is dismissed. Disallowance u/ 14A r.w.r. 8D - contention of assessee before the lower authority was that the assessee made investment on certain fund as strategic partner in joint venture - HELD THAT:- Recently, the Hon ble Supreme Court in case of Maxopp Investment Ltd. [ 2018 (3) TMI 805 - SUPREME COURT] held that the dominant purpose for which investment into shares is made by assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.01.2013 under section 143(3). The Assessing Officer while passing the assessment order disallowed deduction under section 80IB and disallowed ₹ 1,44,76,162/- under section 14A r.w. Rule 8D. On appeal before the ld. CIT(A), the disallowance was under section 80IB(10) was allowed, however the disallowance under section 14A was restricted to ₹ 12,75,550/-. Therefore, aggrieved by the order of ld. CIT(A), the Revenue has filed present appeal and raised the following grounds of appeal: 1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of deduction claim of ₹ 31,23,89,658/- as it does not fall in the meaning of section 80IB(10) wherein Housing project as mentioned u/s 80IB(10) means one project. Maximum area of residential unit in this project shall not exceed 1000 sq. ft. 2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of ₹ 1,44,76,162/- u/s 14A r.w.r. 8D of the Income Tax Act, 1961 and considering the same for purpose of calculating the MAT u/s 115JB of the Act without considering the facts that the assessee has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xmann.com 517 (Chennai Trib.), ACIT vs Ekta Sankalp Developers [2015] 53 taxmann.com 75 (Mumbai Trib.) Smt. Manju Gupta vs ACIT [2015] 15 taxmann.com 287 (Mumbai). The ld AR for the assessee finally submits that the order of ld CIT(A) is based on various decision of higher forums and does not require further interference. 5. We have considered the rival submission of the parties and have gone through the orders of authorities below. In the return of income, the assessee made a claim of deduction under section 80IB(10) of ₹ 31,23,89,658/-. The Assessing Officer asked the assessee to furnish the details with respect to his claim under section 80IB(10) i.e. approval of local authority, commencement of project, completion of project, area of project, area of each residential unit and name of the buyers. The assessee vide its reply dated 15.01.2013 furnished the requisite details. From the details furnished by assessee, the Assessing Officer noted that the project of assessee consist of 8 Wings and further divided into 7 floors. The Assessing Officer also noted that some of the flats were having area of more than 1000 sq. ft. or assessee sold more than one or more flats to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for housing units having area of less than 1500 sq.ft., Bangalore Tribunal in case of SJR Builders (supra) held that merely because some flats were larger than the specified limit of 1500 sq.ft., the assessee would not lose the benefit in its entirety. Only with reference to the flats which had more than the prescribed area, the assessee would lose the benefit. 8. In view of the aforesaid factual and legal discussion and considering the decision of Hon ble Madras High Court and decisions of various Tribunal, we find that there is no illegality and infirmity in the order passed by ld. CIT(A) in directing the Assessing Officer to allow the proportionate deduction under section 80IB(10). No contrary, the decision is brought on record the notice to take the different view. In the result, ground of appeal raised by Revenue is dismissed. 9. Ground No.2 relates to disallowance under section 14A r.w. Rule 8D. The ld. DR for the Revenue supported the order of Assessing Officer. The ld. DR further submits that the assessee has earned dividend income during the relevant Financial Year. The assessee has not apportioned any expenditure related to the exempt income. Therefore, the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of whether shares are held to gain control or as stock-in-trade, where shares are held as stock-in-trade, main purpose is to trade in those shares and earn profits therefrom and, in process, certain dividend is also earned which is tax exempt under section 10(34); expenditure attributable to exempt dividend income will have to be appointed to be disallowed under section 14A 14. Further the Special Bench of Delhi Tribunal in ACIT Vs Vireet Investment (P.) Ltd. [2017] 82 taxmann.com 415 (Delhi-Trib.) (SB) held that the Computation under clause (f) of Explanation 1 to section 115JB(2), is to be made without resorting to computation as contemplated under section 14A read with rule 8D. Therefore, considering the latest decision of Hon ble Supreme Court in Maxopp Investment Ltd (supra) and the decision of Special Bench of Delhi Tribunal in Vireet Investment this ground of appeal is restored back to the file of assessing officer to pass the order afresh after considering the aforesaid two decisions. Needless to order that before passing the order the assessing officer shall grant sufficient opportunity to the assessee before passing the order in accordance with law. Hence, this ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JB(2), is to be made without resorting to computation as contemplated under section 14A read with rule 8D. Therefore, considering the decision for AY 2010-11, this ground of appeal is also restored to the file of assessing officer with the similar direction. In the result this ground of appeal is allowed for statistical purpose. 21. In the result this appeal is allowed for statistical purpose. 22. In ITA No. 7111/M/2016, for AY 2012-13 the Revenue has raised the following grounds of appeal: On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance of Rs.l,94,54,359/- u/s 14A r.w.r. 8D of the Income Tax Act, 1961 without considering the facts that the expenditure incurred by way of interest during the previous year which is not attributable directly to any particular income or receipt and an amount equal to one half percent of the average value of investment income from which does not and shall not form part of the total income as appearing in the balance sheet of the assessee Oil the first day and last day of the financial year had to be disallowed under Rule 8D, being attributable to the exempt income . 23. We have not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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