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TMI Blog2015 (4) TMI 1351X X X X Extracts X X X X X X X X Extracts X X X X ..... t was submitted by the ld. Authorized Representative (AR), the assessee's counsel, that the subject matter of the Revenue's appeal, i.e., if the allowance of deduction u/s.80-IB(10) on its project 'Garden Estate' was allowable on a proportionate basis or not, i.e., excluding the profit attributable to the area covered by the flats exceeding the upper limit of 1000 sq. ft., as prescribed u/s.80-IB(10)(c) of the Act, stands covered squarely in its favour by the decision by the Tribunal in its own favour for the subsequent years, being A.Ys. 2009-10 and 2010-11, placing on record copies thereof. Reference was also made by him to the relevant paras of the said orders. The ld. Departmental Representative (DR) not objecting thereto, i.e., of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was spread over two wings, A & B, with 96 and 95 flats respectively, was an eligible project, i.e., in its entirety. Deduction, accordingly, was to be allowed on the entire profits of the said project. The assessee's appeal for the current year, which perhaps came to be heard and disposed of by the tribunal on it being not brought to its notice that the Revenue was also in appeal, and which was in fact outstanding for disposal at the relevant time, also allowed the same following the order by the tribunal in the assessee's own case for A.Y. 2009-10. The Revenue's appeal, raising the following grounds, impugns the assessee's claim on the ground that in terms of the decision by the hon'ble jurisdictional high court in the CIT vs. Brah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nversion thereto being made at the instance of the buyers. The tribunal, in Ekta Sankalp Developers (supra), even as clarified by the bench during hearing, held that despite the applicability of the ratio of the decision in the case of Brahma Associates (supra), so that in its view a pro-rata deduction could not be allowed, and a violation of any of the conditions of section 80-IB(10) would operate to disentitle the claim for deduction thereunder, further opined that the condition u/s.80IB(10)(c) is not qua the project but qua each of the residential units comprising it, so that all such residential units as have violated the said condition would stand to be disqualified, and profits attributable thereto excluded in computing the profits el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to allot more than one residential unit in the project to persons, or even to their family members in case the allotees are individual, circumventing, in effect, the prescription of s. 80-IB(10)(c), stipulating the maximum area of a residential unit in a housing project. The said conditions, i.e., per ss. 80-IB(10)(e) & (f), are, in contradistinction to s. 80- IB(10)(c), with reference to a housing project, so that even one such allotment, i.e., in contravention of s. 80-IB(10)(e)/(f), would oust the relevant housing project as an eligible project u/s. 80-IB(10), neutralizing, in effect, the benevolent aspect of the decision in the case of Ekta Sankalp Developers (supra). In the instant case, eighteen flats have admittedly been converted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Ltd. v. State of Kerala (1966) 60 ITR 262 (SC); and Reliance Jute & Industries Ltd. v. CIT (1979) 120 ITR 921 (SC)). The consequence would be that profit of the project 'Garden Estate' shall not be eligible for deduction u/s. 80-IB(10) for the current year; it being again trite that only a cumulative satisfaction of all the qualifying conditions would render a project as an eligible project. This aspect of the matter, which we regard as legal in view of the admitted facts, being further determined by the tribunal in the assessee's own case, and with reference to which the assessee pleads its facts as identical with that for the preceding year, even as stated by the ld. CIT(A), having not been either considered during the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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