ITO WD 3(2), MUMBAI V. ANJANA S. CHAVAN, MUMBAI

ITA 1080/MUM/2010

• Counselvise Citation: 108019914 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 13-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 10-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SHARMA
• Assessee Lawyers: CHETAN A KARIA
• Section: 63; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G, MUMBAI BEFORE SHRI D.K. AGARWAL (J.M.) AND SHRI PRAMOD KUM AR (A.M.) ITA NO. 1080/MUM /2010 ASSESSMENT YEAR 2006-07 ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE -3, 2 ND FLOOR, RANI MANSION, MURBAD ROAD, KALYAN. VS. MRS. ANJANA S. CHAVAN, SHOP NO. 5, VARSH PARK, WAYALE NAGAR, KHADAK PADA, KALYAN (W). PAN ACIPC0172B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI O.P. SHARMA RESPONDENT BY : SHRI CHETAN A. KARIA O R D E R PER D.K. AGARWAL, J.M. THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED A GAINST THE ORDER DATED 30.10.2009 PASSED BY THE LD. CIT (A) FOR THE A.Y. 2006-07. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSEE AN INDIVIDUAL DERIVES INCOME FROM BUSINESS OF CIVIL CONSTRUCTION I.E BUILDERS & DEVELOPERS, INCOME FROM HOUSE PROPERTY, BROKERAGE O N SALE OF FLAT, AND PROFIT ON SALE OF LAND ETC. AND RUNNING BUSINESS UN DER THE NAME AND STYLE OF M/S OM SHREE SAI KRIPA CONSTRUCTIONS. SHE FILED RETURN DECLARING TOTAL INCOME OF RS. 3,60,775/-. DURING TH E COURSE OF ASSESSMENT PROCEEDINGS, THE A.O. AFTER CONSIDERING THE DEVELOP MENT AGREEMENT DTD. 2.6.2004 ENTERED INTO BETWEEN M/S CASTLE ENTERPRISE S, A PARTNERSHIP FIRM KALYAN AND DEVELOPER M/S OM SHREE SAI KRIPA DE VELOPERS OBSERVED THAT THE LAND USED FOR CONSTRUCTION OF THE SAID PRO JECT IS SITUATED AT ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 2 VILLAGE GANDHARE, TALUKA KALYAN, BEARING SURVEY NO. 54 (P), KALYAN (W). AS PER THE SAID AGREEMENT THE PLOT OF LAND IT IS VE RY CLEAR THAT, OUT OF TOTAL LAND ADMEASURING 4913.74 SQ. MTRS, 483.75 SQ. MTRS. LAND IS EFFECTED BY D.P. ROAD AND AS PER THE RULE OF KDMC, 15% LAND I.E. 664.48 SQ. MTRS. LAND RESERVED FOR GARDEN, HENCE THE LAND REMAINS FOR CONSTRUCTION IS 3765. 50 SQ. MTRS. THE TRANSACTION HELD BETWEEN THE PARTIES FOR THE SAID PEACE LAND PARCEL OF LAND. TH E M/S CASTLE ENTERPRISE HAS HANDED OVER THE DEVELOPMENT RIGHT FOR THE PEACE OF LAND OF 3765.50 SQ. MTRS. AND IT IS REGISTERED BEFORE THE SUB-REGIS TRAR -1, KALYAN ON DATED 02.06.2004. THE ASSESSEE WAS ASKED TO EXPLAIN WITH DOCUMENTARY EVIDENCE THAT DEDUCTION CLAIMED BY U/S 80IB(10) OF THE INCOME-TAX ACT, 1961 (THE ACT) SHOULD NOT BE DISALLOWED AS THE PROJ ECT IS ON THE SIZE OF PLOT OF LAND LESS THAN ONE ACRE. IN RESPONSE, THE ASSESSEE HAS SUBMITTED HIS REPLY WITH CERTIFICATE OF HIS ARCHITECT VITAN C ONSULTANTS DATED 24.10.2008 STATING INTER ALIA AS UNDER:- 1) TOTAL PLOT AREA : 4813.78 SQ. MTRS. 2) D.P. ROAD AREA : 483.75 SQ. MTRS. 3) BALANCE AREA OF PLOT : 4330.03 SQ. MTRS. IN THIS CASE D.P. ROAD IS PART OF DEVELOPMENT PLAN RESERVATION AND BECAUSE OF THAT THIS AREA OF ROAD IS DEDUCTED FROM TOTAL PLOT OF AREA. THE ROAD AREA WHICH HANDED OVER TO KALYAN DOMBIVALI MUN ICIPAL CORPORATION. THE ROAD AREA IS PROPERTY AT KALYAN D OMBIVALI CORPORATION AND HENCE IT DEDUCTED, BUT 15% RECREATION GROUND IS FACILITY TO HOUSING COMPLEX AS PER BYE LAWS OF KALYAN DOMBIVALI MUNICIP AL CORPORATION. THIS AREA IS NOT HANDED OVER TO ANY AUTHORITY LIKE KALYAN DOMBIVALI MUNICIPAL CORPORATION 15% R.G. IS AMENITY TO HOUSIN G COMPLEX AND 15% R.G. IS PART OF PROJECT AND IT IS IN A COMPOUND OF PROJECT, SO AREA OF PLOT IS 4330.03 SQ. MTRS ONLY. HOWEVER, THE A.O. DID NOT ACCEPT THE ASSESSEES CONTENTION AND WORKED OUT THE NET AREA AT 3680.53 S Q. MTRS AS UNDER:- ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 3 1 AREA OF PLOT (AS PER 7/12) 10330 AREA AS PER ULC ORDER 1913.74 4813.78 2A 15% ROAD SET BACK AREA 483.75 B C ANY RESERVATION - TOTAL (A + C) 483.75 3 BALANCE AREA FOR PLOT 4330.03 4 DEDUCTION FOR RECREATION GROUND 15% 649.50 FOR INTERNAL ROAD - 5 NET AREA FOR PLOT (3 - 4) 3680.53 6 ADDITION AL FOR FLOOR SPACE INDEX 483.75 7 TOTAL ARE 5+6 4164.28 THE A.O. AFTER RELYING ON THE C.B.D.T. CIRCULAR NO. 5 OF 2005 WHICH PROVIDES THAT (PAGE 10 OF ASSESSMENT ORDER) THIS SECTION DOES NOT SPECIFICALLY PROVIDE AREA LIMIT FOR THE GARDEN, THE DEVELOPMENT PLAN ROADS, INTERNAL MEANS OF ACCESS ETC. IN THE HOUSING PROJEC T. THEREFORE, THE SAME SHOULD CONFORM TO THE PROJECT PLAN APPROVED BY THE LOCAL AUTHORITY IN ACCORDANCE WITH THE REGULATION IN FORCE. ALSO, THE AREA LIMIT OF THE PLOT HAS TO BE CONSTRUCTED WITH REFERENCE TO THE AREA OF THE SITE ON WHICH THE HOUSING PROJECT IS CONSTRUCTED AND NOT WITH REFEREN CE TO THE DEMARCATION OF LAND DONE BY THE LAND DEVELOPMENT AUTHORITY , AND KEEPING IN VIEW THE PROVISIONS OF SECTION 80IB (10) OF THE ACT AND ALSO RELYING ON THE APPELLATE ORDER IN THE CASE OF JOHAR HASSAN JOJWALLA AND OM E NGINEERS AND BUILDERS PUNE VS. ITO 104 TTJ 604 HELD THAT SINCE T HE PLOT AREA IS LESS THAN ONE ACRE, THEREFORE, IN VIEW OF PROVISIONS OF SUB-SECTION (B) OF SECTION 80IB(10) OF THE ACT THE ASSESSEE IS NOT ENT ITLED TO THE DEDUCTION U/S 80IB OF THE ACT. THE A.O. AFTER MAKING SOME OTH ER DEDUCTIONS COMPLETED THE ASSESSMENT AT AN INCOME OF ` 96,21,130/- VIDE ORDER DATED 29.12.2008 PASSED U/S 143(3). ON APPEAL BEFO RE THE LD. CIT(A), THE ASSESSEE FILED DETAIL SUBMISSIONS. THE LD. CIT (A) SUMMARIZED THE ABOVE AS UNDER (PARA 4.6) :- ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 4 THE POINTS THAT HAVE BEEN PUT ACROSS THROUGH THE AB OVE SUBMISSIONS ARE THAT : (A) THE AREA OF THE PLOT AVAILABLE FOR CONSTRUCTION WAS WRONGLY CALCULATED BY THE LOCAL AUTHORITY AT 3765.50 SQ. MT RS. (B) THE APPELLANT APPROACHED THE SUB REGISTRAR FOR AMEN DMENT AND AS PER AMENDED DEVELOPMENT AGREEMENT, THE AGGRE GATE AREA OF PLOT AVAILABLE FOR THE PROJECT IS 4913.74 S Q. MTR. (C) HOWEVER, THE AREA OF THE PLOT ACCORDING TO MUNICIPA L MEASUREMENT IS 4813.78 SQ. MTR. (D) AFTER 483.75 SQ. MTR. OF PLOT AREA IS SURRENDERED T O LOCAL AUTHORITY FOR DEVELOPMENT OF ROAD, 4330.03 SQ. MTR. IS AVAILABLE FOR DEVELOPMENT OF PROJECT INCLUDING SPAC E FOR RESERVE GARDEN. KDMC HAVE ALLOTTED ADDITIONAL FSI O F 483.75 SQ. MTR. IN LIEU OF LAND SURRENDERED FOR THE ROAD. (E) EVEN IF, THE RESERVE GARDEN AREA IS TAKEN OUT, THE TOTAL PLOT AREA COMES TO 4164.28 SQ. MTR. INCLUDING THE ADDITI ONAL FSI ALLOTTED IN LIEU OF PORTION OF PLOT SURRENDERED FOR ROAD, THUS IT EXCEEDS ONE ACRE. THE LD. CIT(A) AFTER CONSIDERING THE SAME AND THE R EMAND REPORT OF THE A.O. OBSERVED THAT THE CIRCULAR NO. 5 OF CBDT SUPPO RTS THE VIEW OF THE APPELLANT THAT GARDEN AREA IS PART OF THE PROJECT A ND AFTER INCLUDING THE GARDEN AREA OF 649.50 SQ. MTR., THE AREA OF THE PLO T AVAILABLE FOR THE PROJECT IS 4330 SQ. MTR. WHICH IS MORE THAN ONE ACR E AND, ACCORDINGLY, HELD THAT THE APPELLANT HAS FULFILLED THE CONDITION S UNDER CLAUSE (B) OF SECTION 80IB(10) OF THE ACT AND THEREBY DELETED THE DISALLOWANCE MADE BY THE A.O. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) , THE REVENUE IS IN APPEAL BEFORE US TAKING FOLLOWING SOLE GROUND OF AP PEAL:- 1. THE LD. CIT(A) HAS ERRED IN LAW & FACT IN ALLOW ING THE CLAIM OF DEDUCTION UNDER SECTION 80IB MISINTERPRETING THE CO NTENTS OF THE CIRCULAR NO. 5/2005 OF THE CBDT BY CONSIDERING THE GARDEN AR EA WHILE TAKING INTO ACCOUNT THE TOTAL AREA OF PLOT OF LAND. ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 5 4. AT THE TIME OF HEARING, THE LD. D.R. SUBMITS THA T FOR THE REASONS AS MENTIONED IN THE ASSESSMENT ORDER, THE LD. CIT(A) H AS ERRED IN ALLOWING THE DEDUCTION U/S 80IB OF THE ACT TO THE ASSESSEE. HE, THEREFORE, SUBMITS THAT THE DISALLOWANCE OF DEDUCTION MADE BY THE A.O. BE RESTORED. 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE AT THE OUTSET SUBMITS THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE FOLLOWING DECISIONS OF THE TRIBUNAL:- 1. MR. JOHAR HASSAN ZOJWALLA VS. ADDL COMMR. OF INC OME TAX IN ITA NO. 5404/MUM/2008, A.Y. 2005-06 DATED 12.01.2011 AN D 2. M/S NAVNIRMAN DEVELOPERS VS. A.C.I.T. IN ITA NO. 7 TO 9/PN/2007, A.Y. 2000-01 TO 2002-03 ORDER DATED 4.5. 2010. RELYING ON THE ABOVE DECISIONS OF THE TRIBUNAL, HE SUBMITS THAT AFTER INCLUDING THE GARDEN AREA OF 649.50 SQ. MTR., THE AREA OF THE PLOT IS MORE THAN ONE ACRE AND, THEREFORE, THE ASSESSEE IS ENTIT LED FOR DEDUCTION U/S 80IB(10) OF THE ACT AND, THEREFORE, THE ORDER PASSE D BY THE LD. CIT(A) BE UPHELD. HE ALSO PLACED ON RECORD A COPY OF THE SAI D ORDERS OF THE TRIBUNAL APPEARING AT PAGE NO. 37 TO 69 OF ASSESSEE S PAPER BOOK. 6. WE HAVE CAREFULLY HEARD THE SUBMISSIONS OF THE R IVAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE A.O. WHILE WORKING OUT THE NET AREA OF PLOT AT 3680.53 SQ. MTR . HAS EXCLUDED 15% ROAD SET BACK AREA AT 483.75 SQ. MTR. AND HAS FURTH ER DEDUCTED 15% RECREATION GROUND AT 649.50 SQ. MTR. AS UNDER:- 1 AREA OF PLOT (AS PER 7/12) 10330 AREA AS PER ULC ORDER 1913.74 4813.78 2A 15% ROAD SET BACK AREA 483.75 B C ANY RESERVATION - TOTAL (A + C) 483.75 ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 6 3 BALANCE AREA FOR PLOT 4330.03 4 DEDUCT ION FOR RECREATION GROUND 15% 649.50 FOR INTERNAL ROAD - 5 NET AREA FOR PLOT (3 - 4) 3680.53 6 ADDITIONAL FOR FLOOR SPACE INDEX 483.75 7 TOTAL ARE A 5+6 4164.28 THUS ACCORDING TO THE A.O., THE REMAINING AREA LEFT FOR THE PROJECT IS 3680.53 SQ. MTRS. WHICH IS LESS THAN ONE ACRE AND H ENCE THE ASSESSEE IS NOT ENTITLED TO THE DEDUCTION U/S 80IB (10) OF THE ACT. PER CONTRA, THE CLAIM OF THE ASSESSEE IS THAT THE AREA OF GARDEN IS NOT TO BE EXCLUDED AS THE ASSESSEE GOT COMPENSATORY EQUIVALENT FSI GIVEN BY KDMC FOR SURRENDERING THE AREA FOR CONSTRUCTING ROAD ADMEASU RING 483.75 SQ. MTR. AND HENCE THE TOTAL AREA AVAILABLE FOR CONSTRUCTION WAS 4164.28 SQ. MTR. WHICH IS MORE THAN ONE ACRE. 7. IN MR. JOHAR HASSAN ZOJWALLA (SUPRA), THE APPELL ATE ORDER OF WHICH WAS RELIED ON BY THE A.O., IT HAS BEEN HELD BY THE TRIBUNAL VIDE PARA 6 OF ITS ORDER AS UNDER:- 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORD OF THE CASE. THE MAIN ISSUE IS REGARDING FULFILMENT OF CONDITIONS LAID DOWN U/S.80IB(10) FOR CLAIMING DEDUCTION IN RESPECT OF PROFITS AND GAINS DERIVED BY AN UNDERTAKING CARRYING ON BUSINESS OF D EVELOPING AND BUILDING HOUSING PROJECT APPROVED BEFORE 31-3-2007. THE FIRST REASON FOR DENIAL OF DEDUCTION WAS ON THE GROUND THAT THE PLOT AREA ON WHICH CONSTRUCTION HAS BEEN MADE IS LESS THAN 1 ACRE. IN THIS REGARD, IT IS NOT DISPUTED THAT 1186 SQ. MS. OF LAND WAS SURRENDERED FOR DP ROAD LEAVING BEHIND 3914 SQ. MTS. NET AREA FOR THE PROJECT. WE F IND THAT THIS ISSUE IS COVERED BY THE DECISION OF ITAT IN THE CASE OF M/S. UMIYA ENTERPRISES VS. ITO IN ITA NO.2750/MUM/09 DATED 08-2-2010 WHEREIN I T HAS BEEN HELD AS UNDER : THIS ANNEXURE IS A MAP SHOWING THE DETAILS OF THE SITE PLANS, PLAN OF THE RESIDENTIAL UNITS TO BE BUILT BY THE ASSESSE E ETC. IT ALSO CONTAINS AN AREA STATEMENT WHICH SHOWS THAT THE ARE A OF THE PLOT IS 4600 SQ. METRES. IT FURTHER SHOWS THAT THERE IS A DEDUCTION 656.75 SQ. METRES FOR ROAD SET BACK. THIS DEDUCTION IS THEREAFTER SET OFF BY AN ADDITION OF EQUIVALENT AREA ALLOWED B Y MNP. THE NET AREA OF THE PLOT AFTER THE DEDUCTION OF THE AREA FO R ROAD SET BACK ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 7 HAS BEEN SHOWN AT 3943.25 SQ. METRES. THEREAFTER TH ERE IS A DEDUCTION OF 591.409 SQ. METRES FOR RECREATION OPEN SPACE AND 411 SQ. METRES FOR INTERNAL ROAD. THE NET PLOT AREA IS THEN SHOWN AT 2940.76 SQ. METRES. THE AREA OF 656.75 SQ. METRE S, WHICH WAS EARLIER DEDUCTED FOR ROAD SET BACK, IS ADDED AND TH E TOTAL AREA PLOT IS SHOWN AT 3597.51 SQ. METRES. IT WILL BE SEEN THA T THE TOTAL PLOT AREA HAS BEEN WORKED OUT BY THE MNP AT 3597.51 SQ. METRES ONLY AFTER DEDUCTING 591.49 SQ. METRES FOR RECREATION OP EN SPACE. THE RECREATION OPEN SPACE IS HOWEVER PART OF THE PLOT A ND THOUGH FOR THE PURPOSE OF MUNICIPAL REGULATIONS, A PORTION OF THE PLOT HAS TO BE RESERVED AS A RECREATION AREA BUT FOR THE PURPOS E OF CLAUSE (B) OF SECTION 80IB(10), THE RECREATION AREA HAS ALSO T O BE CONSIDERED AS PART OF THE PLOT ONLY. THERE IS NO CONDITION IN THE CLAUSE THAT RECREATION AREA HAS TO BE EXCLUDED WHILE EXAMINING WHETHER THE PLOT IS OF THE SIZE OF ONE ACRE OR LESS. IF THE REC REATION AREA OF 591.49 SQ. METRES IS ADDED TO THE TOTAL PLOT AREA O F 3597.91 SQ. METRES, IT GIVES AN AREA OF 4189 SQ. METRES WHICH I S THE SIZE OF THE PLOT. THE TOTAL PLOT AREA HAS BEEN ARRIVED AT BY MN P 3597.51 ONLY FOR THE PURPOSE OF CALCULATING THE PERMISSIBLE FSI. THE PERMISSIBLE FSI AS PER COLUMN 9 OF THE AREA STATEMENT IS ONE, W HICH MEANS THAT THE ASSESSEE CAN BUILD 3597.91 SQ. METRES IN T HE SAID PLOT. HOWEVER, FOR THE PURPOSE OF CLAUSE (B) OF SECTION 8 0IB(10), THE PLOT AREA HAS BEEN TAKEN AT 4189 SQ. METRES, IF NOT AT 4 600 SQ. METRES, EVEN ON THIS BASIS, THE SIZE OF THE PLOT IS MORE TH AN ONE ACRE. IN OUR OPINION, THE CIT(A) COMMITTED AN ERROR IN SIMPL Y EXCLUDING 656.75 SQ. METRES FROM THE AREA OF 4600 SQ. METRES WITHOUT APPRECIATING THAT THE EXCLUSION IS ONLY FOR THE PUR POSE OF D.P. ROAD WHICH DOES NOT REDUCE THE SIZE OF THE PLOT AS A WHOLE. WE ARE THEREFORE SATISFIED THAT THERE IS NO VIOLATION OF T HE CONDITIONS PRESCRIBED BY CLAUSE (B). IN THE PRESENT CASE, WE FIND THAT AT PAGE 56 OF THE PAPER BOOK THERE IS A STATEMENT OF AREA, AS PER WHICH AREA OF PLOT IS 510 0 SQ. MTS., OUT OF WHICH 1186 SQ. MTS. OF LAND HAD BEEN DEDUCTED FOR D P ROAD, LEAVING BEHIND 3914 SQ. MTS. AS PER THE DECISION OF TRIBUNA L IN THE CASE OF M/S. UMIYA ENTERPRISES NOTED ABOVE, THIS AREA SURRENDERE D FOR DP ROAD COULD NOT BE EXCLUDED FOR DETERMINING THE SIZE OF THE PLO T AS CONTEMPLATED U/S.80IB(10)(B). THEREFORE, THIS OBJECTION DOES NOT SURVIVE. 8. IN M/S NAVNIRMAN DEVELOPERS (SUPRA), THE TRIBUNA L WHILE DISTINGUISHING THE DECISION IN THE CASE OF OM ENGIN EERING AND BUILDERS 104 TTJ 604 (109 ITD 235) RELIED ON BY THE A.O. THE MEASUREMENTS AS PER LAYOUT PLAN WERE AS FOLLOWS (PARA 9.1.OF THE OR DER) :- AREA STATEMENT TOTAL AREA OF AMALGAMATED PLOT = 4264.10 SQ.M (ABCDEF) ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 8 AREA UNDER COLONY ROAD = 163.50 SQ.M AREA UNDER RCAD WIDENING = 994.20 SQ.M NET AREA OF PLOT = 3106.40 2 SQ.M FSI USED FROM ROAD WIDENING AREA = 480.60 SQ.M TOTAL FSI = 3587.00 SQ.M. ACCORDING TO THE A.O., THE AREA OF PLOT IN QUESTION AVAILABLE FOR DEVELOPMENT WAS ONLY 3160.40 SQ. MTRS. IT HAS BEEN HELD BY THE TRIBUNAL VIDE PARA 13 OF THE ORDER AS UNDER:- 13. A DECISION OF M/S OM ENGINEERING AND BUILDERS 1 04 TTJ 604 (109 ITD 235) HAS BEEN CITED FROM THE SIDE OF THE REVENU E BUT THE DISTINCTION IS QUITE GLARING AND VISIBLE THAT IN THE SAID APPEA L THE ASSESSEE BUILDER HAD UNDISPUTEDLY DEVELOPED THE HOUSING PROJECT ON A PLOT OF LAND ADMEASURING ONLY 3,800 SQ. MTRS. EVEN IT WAS NOT TH E CASE THAT THE AREA OF 3,800 SQ. MTRS. WAS AVAILABLE AFTER CARVING OUT THE OPEN SPACE FOR ROAD. RATHER FACTS HAVE REVEALED THAT THE SAID ASSESSEE W ANTED TO TAKE THE ADVANTAGE OF AN OPEN SPACE NOT OWNED BY THAT APPELL ANT. IT WAS THE SPACE BELONGED TO AN ANOTHER OWNER WHICH WAS NOT EV EN TRANSFERRED IN THE NAME OF THE SAID ASSESSEE. THE PLAIN TRUTH OR THE FACT OF THE MATTER IS THAT THE SAID DECISION WAS NOT APPLICABLE ON THE FACTS OF THE PRESENT APPEAL. THUS CONSIDERING THE DEVELOPMENT AGREEMENT , DEVELOPMENT PLANS SUBMITTED TO THE PRESCRIBED AUTHORITY AND THE CONTIGUITY OF THE PLOTS IN QUESTION; WE ARE OF THE CONSCIENTIOUS VIEW THAT THE TOTAL ARE OF THE AMALGAMATED PLOTS WAS THE ARE OF THE SITE ADMEA SURING 4264.10 SQ. MTRS. OFFERED FOR THE PURPOSE OF CONSTRUCTION OF A HOUSING PROJECT OUT OF WHICH THE ROAD ETC. WERE CARVED OUT THEREFORE OVER WHICH THE BENEFIT OF FSI WAS GRANTED AND THAT TOO WAS USED FOR THE PURPO SE OF CONSTRUCTION OF RESIDENTIAL UNITS THUS THE OVERALL CIRCUMSTANCES WA RRANT TO HOLD THAT THE ASSESSEE IS ENTITLED FOR THE CLAIM OF DEDUCTION U/S 80IB(10). THE GROUNDS RAISED ARE THEREFORE ALLOWED. 9. IN THE ABSENCE OF ANY DISTINGUISHING FEATURE BRO UGHT ON RECORD BY THE REVENUE, WE, RESPECTFULLY FOLLOWING THE CONSIST ENT VIEW OF THE TRIBUNAL HOLD THAT THE ROAD SET BACK AREA OF 483.75 SQ. MTRS. COULD NOT BE EXCLUDED FOR DETERMINING THE SIZE OF THE PLOT AS THE ASSESSEE GOT COMPENSATORY EQUIVALENT FSI OF 483.75 SQ.MTRS. THU S, THE TOTAL AREA AVAILABLE FOR CONSTRUCTION IN THE ABOVE PROJECT COM ES TO 4164.28 SQ. MTRS. WHICH IS MORE THAN ONE ACRE AS CONTEMPLATED B Y SECTION 80IB(10)(B) OF THE ACT AND ACCORDINGLY WE ARE INCLI NED TO UPHOLD THE ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 9 FINDINGS OF THE LD. CIT(A) IN DELETING THE DISALLOW ANCE MADE BY THE A.O. THE GROUND TAKEN BY THE REVENUE IS, THEREFORE, REJE CTED. 10. IN THE RESULT, THE REVENUES APPEAL STANDS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.04.2011. SD/ - (PRAMOD KUMAR) ACCOUNTANT MEMBER SD/ - (D.K. AGARWAL) JUDICIAL MEMBER MUMBAI, DATED 20.04.2011. RK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)- 1, THANE 4. COMMISSIONER OF INCOME TAX, 1, THANE 5. DEPARTMENTAL REPRESENTATIVE, BENCH G, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI ITA 1080/M/10 MRS. ANJA NA S. CHAVAN 10 1 DRAFT DICTATED ON 13 . 4 .11 SR PS 2 DR AFT PLACED BEFORE AUTHOR ON 15. 4.11 SR PS 3 DRAFT PROPOSED & PLACE BEFORE THE 2 ND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY 2 ND MEMBER JM/AM 5 APPROVED DRAFT COMES TO THE SR PS SR.PS 6 KEPT FOR PRONOUNCEMENT ON SR PS 7 FILE SENT TO THE BENCH CLERK SR PS 8 DATE ON WHICH FILE GOES TO THE HEAD CLERK 9 DATE ON WHICH FILE GOES TO THE AR 10 DATE OF DESPATCH SR PS