TMI Blog2022 (2) TMI 877X X X X Extracts X X X X X X X X Extracts X X X X ..... ters P.Ltd [ 2012 (11) TMI 1117 - MADRAS HIGH COURT] Ltd (supra) supports the case of the assessee. Also see M/S SHREENATH BUILDCON [ 2018 (12) TMI 1723 - SC ORDER] er allowing assessee's claim for deduction under section 80-IB by taking a view that simply because out of several units included in housing project, only in one of them, constructed area exceeded upper limit; that too, by a small margin, deduction claimed could not be denied in respect of entire housing project. - Decided in favour of assessee. - ITA No.2125/Ahd/2018 - - - Dated:- 18-2-2022 - Waseem Ahmed, Accountant Member And T.R. Senthil Kumar, Judicial Member For the Assessee : Shri Rupesh Shah, AR For the Revenue : Shri Urjit Shah, Sr.DR ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not entitled for deduction claimed u/s 80IB(10) of the Act, as it has not proved that built area of the each unit of the bunglows sold are not more than 1500Sq Ft, which is one of the main condition laid down for the purpose of granting deduction in the provisions of Section 801B(10) of the Act. The A.O. therefore approached to the Departmental Valuation Officer during course of assessment proceeding directing him to ascertain verify and report the area of each unit sold by the assessee on which 801B(10) is claimed. However as the matter was getting time barred and no report from DVO was received till 31st March,2015, the AO passed the order on 31.03.2015 by making disallowance of deduction claimed u/s 80IB(10) of the Act of ₹ 1,81 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that the DVO had measured ail units, only unit A/57-58 was found the be above 1500 square feet. As the assessee should not be deprived of its legitimate right and looking to the law of natural justice, the additional evidences put forth may be considered as this evidence in the report of DVO and the case was referred to DVO during the assessment proceeding and the appeal may be decided on merits, if deemed fit. The Appellant has also submitted that it agrees with DVO's Report and voluntarily submitted that, addition to the extent one unit ( in excess of 1500 Sq Ft) of ₹ 11,31,663/- be confirmed , out of total addition made by AO of ₹ 1,81,06,455/- . Ongoing through the facts of the case and documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Ld.DR appearing for the Revenue contended that Ld.CIT(A) erred in granting deduction under section 80IB(10) of the Act when the assessee has not fully complied with provisions of section 80IB(10) of the Act, and therefore, order of the Ld.CIT(A) is to be modified. 7. Per contra, the ld.counsel for the assessee stated that deduction under section 80IB(10) relating to the same project was allowed by the Department in its entirety in favour of the assessee for the Asst.Years 2008-09 to 2010-11, and therefore, Ld.CIT(A) has rightly allowed similar claim of the assessee in this year as well. The ld.AR also relied upon the judgment of Hon ble Madras High Court in the case of Viswas Promoters P.Ltd. Vs. ACIT, (2013) 29 taxmann.com 19 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act. Thus, going by the definition of housing project under Explanation to Section 80HHBA of the Act as referred to above as the construction of any building and the wordings in Section 80IB(10) of the Act, the question of rejection in entirety of the project on account of any one of the blocks not complying with the conditions, does not arise. Even in the case of each one of the blocks, wherever there are flats which satisfied the conditions particularly of the nature stated under Section 80IB(10)(c) of the Act, we have already upheld the case of the assessee in T.C. Nos.1348 and 1349 of 2007 dated 10.10.2012 for grant of relief under Section 80IB(10) of the Act on a proportionate basis, by following the decision of the Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts called Agrini and Vajra, but to the extent of each of the blocks satisfying the conditions under Section 80IB(10) of the Act, the assessee would be entitled to the relief on a proportionate basis. 9. On similar issue, jurisdictional High Court in the case of Pr.CIT Vs. Shreenath Buildcon, reported in (2019) 110 taxmann.com 390 allowed the claim of the assessee. Against which, SLP filed by the Department before Hon ble Apex Court was dismissed by holding that Tribunal's order allowing assessee's claim for deduction under section 80-IB by taking a view that simply because out of several units included in housing project, only in one of them, constructed area exceeded upper limit; that too, by a small margin, deduction claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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