TMI Blog2021 (9) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... we dismiss the grounds raised by both the assessee and revenue on this issue. - ITA Nos. 1355 & 1333/H/2015 - - - Dated:- 17-9-2021 - Satbeer Singh Godara, Member (J) And Laxmi Prasad Sahu, Member (A) For the Appellant : P. Murali Mohan Rao For the Respondents : Rohit Mujumdar ORDER Per L P Sahu , AM Both these appeals are cross appeals filed by the assessee and revenue are directed against CIT(A) - 4, Hyderabad's order dated 24/09/2015 for AY 2011-12 involving proceedings u/s. 143(3) of the Income-Tax Act, 1961; in short the Act . 2. Briefly the facts of the case are that the appellant firm, M/s. Giridhari Constructions, is in the business of construction of flats and for the assessment year 2011-12 it had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) and filed written submissions before the CIT(A), which were extracted by the CIT(A) in his order at pages 4 5 The CIT(A) after considering the written submissions, directed the AO to allow the 80IB deduction proportionately on all flats except the 7 flats where 1500 s.ft. exceeded, by observing as under: 5. I have carefully considered the facts of the case, submissions of the appellant and the assessment order. During the A.Y. 2011-12, Flat Nos. bearing A-402, I-302, J-0202, J-402, J-702, J-204 and J-304 were sold which exceed 1500 sft and the income was reflected in the A.Y. 2011-12. During this assessment year, the appellant disclosed profits from 76 flats out of these only 7 flats exceeded more than 1500 sft. The appellant e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by treating the bigger project as a single unit. It has been held in the said decision that if a particular unit satisfies the condition of section 8016(10), the assessee is entitled to deduction and it should be denied in respect of those units only which do not satisfy the condition. d) Decision of Nagpur Bench of the Tribunal in the case of ITO vs. AIR Developers, (2010) 122 ITO 125 (Nag.) wherein it was held that if it was found that the built up area of some of the residential units exceeded 1500 sft then it would be reasonable to allow proportionate deduction and if same did not exceed 1500 sft. then entire deduction u/s. 8016(10) is allowable. 5.2 Keeping in view of the facts of the case and several case laws relied upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limit of 1500 sft due to consideration of common areas. 4. The Ld. allowed the deduction u/s. 80IB in respect of the impugned 7 flats also appreciating that the Valuation Report of the Valuation Officer is not acceptable in this regard as it has considered common area into account which is not a part of built-up area . 5. The assessee may add, alter or modify or substitute any other points to the grounds of appeal at any time before or at the time of hearing of the appeal. 5.2. The revenue has raised the following grounds of appeal: (1). Whether in the facts and circumstances of the case, CIT(A) is correct in allowing the deduction claimed by the assessee u/s. 80IB(10) on pro-rata basis when the assessee has not fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al estate sector adversely. He relied on the case law, which were relied on before the CIT(A) quoted supra. 7. On the other hand, the ld. DR relied on the order of AO and submitted that the condition prescribed in section 80IB(10) has not fulfilled by the assessee for eligibility of deduction and the CIT(A) has overlooked the conditions and DVO report. He, therefore, submitted that the CIT(A) wrongly directed the AO to allow the 80IB deduction proportionately on all flats except these 7 flats where 1500 s.ft. exceeded. 8. We have considered the rival submissions and perused the material on record. Before giving direction to AO to allow proportionate deduction u/s. 80IB, the CIT(A) relied on the decision of the coordinate bench of ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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