ITO, W-3(5), Chandigarh V. M/s Green Valley Apartments Pvt. Ltd., Zirakpur

ITA 1619/CHANDI/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8199 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 31-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reassessment proceedings; Set aside
• Section: 80IB; 147

Judgement Text

. , , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH A, CHANDIGARH (VIRTUAL COURT) .., .. , # % BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ./ ITA NO. 1619/CHD/2019 / ASSESSMENT YEAR : 2011-12 THE ITO WARD-3(5), CHANDIGARH M/S GREEN VALLEY APARTMENTS PVT. LTD. VILLAGE: DHAKOLI, ZIRAKPUR ./ PAN NO: AACCG5129M / APPELLANT / RESPONDENT / REVENUE BY : SHRI MANVEET SINGH SEHGAL, ADDL. CI T ' / ASSESSEE BY : SHRI TEJ MOHAN SINGH, ADVOCATE &/ DATE OF HEARING : 13/05/2021 &/ DATE OF PRONOUNCEMENT : 11 /08/2021 / ORDER PER R.L. NEGI, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AG AINST THE ORDER DATED 25/10/2019, PASSED BY THE COMMISSIONER OF INC OME TAX (APPEALS)-1, CHANDIGARH (CIT(A) PERTAINING TO THE ASSESSMENT YEA R 2011-12, WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED THE APPEAL FILED BY THE A SSESSEE AGAINST THE ASSESSMENT ORDER PASSED UNDER SECTION143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED ITS RETURN OF INCOME FOR THE A.Y. UNDER CONSIDERATION DECLARING NIL INCOME A FTER CLAIMING DEDUCTION U/S 80IB(10) OF THE ACT AMOUNTING TO RS. 2,08,89,635/-. THEREAFTER THE AO REOPENED THE CASE U/S 147 READ WITH 148 OF THE ACT FOR THE R EASON THAT THE ASSESSEE HAS M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 2 WRONGLY CLAIMED THE DEDUCTION U/S 80IB. THE ASSESSE E ASKED THE AO TO TREAT THE ORIGINAL ITR FILED BY IT AS ITR FILED IN RESPONSE T O NOTICE U/S 148 OF THE ACT. THE ASSESSEE ALSO FILED OBJECTIONS INTER ALIA ALLEGING THAT THE INFORMATION STATED IN THE REASON WAS ALREADY AVAILABLE WITH THE AO AND IN CAS E REASSESSMENT PROCEEDINGS ARE INITIATED, IT WILL AMOUNT TO REVIEW OF THE EARLIER ASSESSMENT AND AS PER THE SETTLED LAW THE SAME IS NOT PERMISSIBLE. HOWEVER, AO REJECTED THE OBJECTIONS RAISED BY THE ASSESSEE AND DISALLOWED TH E DEDUCTION CLAIMED U/S 80IB AMOUNTING TO RS. 2,08,89,635/-. FEELING AGGR IEVED BY THE ACTION OF THE AO, THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER BEFORE THE CIT(A). THE LD. CIT(A) AFTER HEARING THE ASSESSEE PARTLY ALLOWED THE APPEA L AND DELETED THE ADDITION MADE BY THE AO ON ACCOUNT OF DISALLOWANCE OF THE CL AIM OF THE ASSESSEE U/S 80IB OF THE ACT. THE REVENUE IS IN APPEAL AGAINST T HE SAID FINDINGS OF THE LD. CIT(A). 3. THE REVENUE HAS CHALLENGED THE IMPUGNED ORDER PA SSED BY THE LD. CIT(A) BY RAISING THE FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN ALLOWING APPEAL OF THE ASSESSEE WITHOUT AP PRECIATING THE FACTS OF THE CASE. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN ALLOWING THE APPEAL OF THE ASSESSEE ON THE BASIS OF JUDGMENTS WHICH WERE RENDERED ON DIFFERENT FACTS. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LD.CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO RESTRIC T THE DISALLOWANCE TO THE M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 3 EXTENT OF PROFITS TON PARTICULAR UNITS WHEN THERE I S NO PROVISION FOR ALLOWING/DISALLOWING DEDUCTION U/S 80IB(10) PROPORT IONATELY. 4. THE APPELLANT CRAVES TO LEAVE TO ADD OR AMEND ANY G ROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OFF. 5. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE CA NCELLED AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 4. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE ( DR) SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO RESTRICT TH E DISALLOWANCE TO THE EXTENT OF PROFIT EARNED ON A PARTICULAR UNIT ON THE GROUND TH AT THERE IS NO PROVISION UNDER THE ACT FOR ALLOWING / DISALLOWING DEDUCTION U/S 80 IB (10) ON PROPORTIONATE BASIS. THE LD. DR POINTED OUT THAT ASSESSEE ITSELF HAS ADM ITTED THAT THE CONDITION U/S 80IB(10) ARE NOT FULFILLED IN ITS CASE AND ACCORDIN GLY OFFERED THE DISALLOWANCE OF DEDUCTION ON PRO RATA BASIS. THE LD. DR FURTHER SU BMITTED THAT THE CASES REFERRED AND RELIED UPON BY THE LD. CIT(A) IN THIS CASE ARE NOT APPLICABLE TO THE PRESENT CASE AS THE FACTS OF THE CASES RELIED UPON ARE DIFF ERENT FROM THE FACTS OF THE PRESENT CASE. IN THE PRESENT CASE THE ASSESSEE HA S CLAIMED FULL DEDUCTION U/S 80IB(10) OF THE ACT IN CONTRAVENTION OF THE PROVISI ONS OF LAW AND IN THE FIRST APPEAL, THE LD. CIT(A) HAS WRONGLY ISSUED DIRECTION S TO THE AO TO ALLOW THE DEDUCTION ON PROPORTIONATE BASIS. FLAT NO.136 WAS ALLOTTED TO SHRI RAKESH MAKKAR ALONGWITH TWO CO-OWNERS BY THE ASSESSEE COMP ANY. FURTHER FLAT NO. 127 WAS ALLOTTED TO MRS. RITU MAKKAR WIFE OF SHRI RAKES H MAKKAR IN CONTRAVENTION OF THE PROVISIONS OF CLAUSE (F)(I) OF SECTION 80IB(10) OF THE ACT. THEREFORE, THE AO HAS RIGHTLY REJECTED THE CLAIM OF THE ASSESSEE. SIN CE THE FINDINGS OF THE LD. CIT(A) M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 4 ARE NOT IN ACCORDANCE WITH THE PROVISIONS OF THE AC T, THE IMPUGNED ORDER IS LIABLE TO BE SET ASIDE. 5. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE RELYING ON THE FINDINGS OF THE LD. CIT(A) SUBMITTED THAT SINCE THE FINDINGS OF THE LD. CIT(A) ARE BASED ON THE DECISION OF THE VARIOUS BENCHES OF THE TRIBUNAL AND THE HON'BLE HIGH COURTS, THERE IS NO INFIRMITY IN THE ORDER PASSED BY THE LD . CIT(A). THE LD. COUNSEL RELIED ON THE FOLLOWING DECISIONS TO SUBSTANTIATE THE CLAIM O F THE ASSESSEE: - I) SANGHVI & DOSHI ENTERPRISE VS. ITO 18 ITR (T) 6 08 (CHENNAI) II) CIT VS. ARUN EXCELLO FOUNDATIONS (P) LTD. 259 CTR 362 (MADRAS) III) VISHWAS PROMOTORS (P) LTD. VS. ACIT 255 CTR 1 49 (MADRAS) IV) ITO VS. PARAS BUILDERS 40 ITR (T) 507 (PUNE-TR IB) V) OM SWAMI SMARAN DEVELPOERS (P) LTD. VS. ITO 90 TAXMANN.COM 267 (MUMBAI) VI) PR. CIT VS. CIT VS. SHREENATH BUILDCON 267 TAX MAN 115 (SC) VII) DEVASHTI NIRMAN LLP VS. ACIT 277 TAXMAN 408 ( BOMBAY) 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND PERUSED THE MATERIAL ON RECORD INCLUDING THE CASES RELIED UPON BY THE LD. CIT(A). THE ONLY GRIEVANCE OF THE REVENUE IS THAT THE LD. CIT(A) HAS WRONGLY ALLOWED THE DEDUCTION U/S 80IB(10) ON PRO RATA BASIS. THE LD. CIT(A) HAS ALLOWED THE GROUND TAKEN BY THE ASSESSEE WITHOUT PREJUDICE TO THE MAIN GROUNDS AND DIRECTED THE AO TO ALLOW DEDUCTION ON PROPORTIONATE BASIS. THE FINDINGS OF THE LD. CIT(A) READ AS UNDER: - M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 5 6.2 HELD: I HAVE CONSIDERED THE FACTS OF THE CASE AND EXAMINE D THE REPLY OF THE ASSESSEE. BRIEF FACTS OF THE CASE ARE THAT THE AO HAS MADE THE ADDITION OF RS.2,08,89,635/- ON THE BASIS THAT THE ASSESSEE COM PANY ALLOTTED A FLAT NO. 136 TO SH. RAKESH MAKKAR ALONG WITH TWO CO-OWNERS AND AGAI N FLAT NO. 127 WAS ALLOTTED TO MRS. RITU MAKKER, THE WIFE OF SH. RAKESH MAKKER IN CONTRAVENTION TO THE PROVISIONS OF SUBSECTION (F)(I) TO SECTION 80IB(10) OF THE ACT. BEFORE GOING INTO THE MERITS OF THE CASE, PROVISIONS OF THE SECTION 80IB( 10) OF THE 'ACT' ARE HEREBY DISCUSSED BELOW: '80-IB. (1) WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE INCLUDE S ANY PROFITS AND GAINS DERIVED FROM ANY BUSINESS REFERRED TO IN SUB- SECTIONS (3) TO [(11), (11 A) AND (11B)] (SUCH BUSINESS BEING HEREINAFTER REFERRED TO AS THE ELIGIBLE BUSINESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVIS IONS OF THIS SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE. A DE DUCTION FROM SUCH PROFITS AND GAINS OF AN AMOUNT EQUAL TO SUCH PERCENTAGE AND FOR SUCH NUMBER OF ASSESSMENT YEARS AS SPECIFIED IN THIS SECTION. [(10) THE AMOUNT OF DEDUCTION IN THE CASE OF AN UND ERTAKING DEVELOPING AND BUILDING HOUSING PROJECTS APPROVED BEFORE THE 31ST DAY OF MARCH, [2008] BY A LOCAL AUTHORITY SHALL BE HUNDRED PER CENT OF THE PR OFITS DENVED IN THE PREVIOUS YEAR RELEVANT TO ANY ASSESSMENT YEAR FROM SUCH HOUSING P ROJECT IF, (A) SUCH UNDERTAKING HAS COMMENCED OR COMMENCES DEV ELOPMENT AND CONSTRUCTION OF THE HOUSING PROJECT ON OR AFTER THE 1ST DAY OF OCTOBER, 1998 AND COMPLETES SUCH CONSTRUCTION (I) IN A CASE WHERE A HOUSING PROJECT HAS BEEN APPR OVED BY THE LOCAL AUTHORITY BEFORE THE 1ST DAY OF APRIL, 20 04. ON OR BEFORE THE 31ST DAY OF MARCH, 2008; (II) IN A CASE WHERE A HOUSING PROJECT HAS BEEN, OR, IS APPROVED BY THE LOCAL AUTHORITY ON OR AFTER THE 1ST DAY OF A PRIL, 2004, WITHIN FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH T HE HOUSING PROJECT IS APPROVED BY THE LOCAL AUTHORITY. EXPLANATION. FOR THE PURPOSES OF THIS CLAUSE, (I) IN A CASE WHERE THE APPROVAL IN RESPECT OF THE HOUSING PROJECT IS OBTAINED MORE THAN ONCE, SUCH HOUSING PR OJECT SHALL BE DEEMED TO HAVE BEEN APPROVED ON THE DATE ON WHICH T HE BUILDING PLAN OF SUCH HOUSING PROJECT IS FIRST APPR OVED BY THE LOCAL AUTHORITY; II) THE DATE OF COMPLETION OF CONSTRUCTION OF THE HOUSING PROJECT SHALL BE TAKEN TO BE THE DATE ON WHICH THE COMPLETION CERTIFICATE IN RESPECT OF SUCH HOUSING PROJECT IS I SSUED BY THE LOCAL AUTHORITY; (B) THE PROJECT IS ON THE SIZE OF A PLOT OF LAN D WHICH HAS A MINIMUM AREA OF ONE ACRE: M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 6 PROVIDED THAT NOTHING CONTAINED IN CLAUSE F A) OR C LAUSE (B) SHALL APPLY TO A HOUSING PROJECT CARRIED OUT IN ACCORDANCE WITH A S CHEME FRAMED BY THE CENTRAL GOVERNMENT OR A STATE GOVERNMENT FOR RECONS TRUCTION OR REDEVELOPMENT OF EXISTING BUILDINGS IN AREAS DECLAR ED TO BE SLUM AREAS UNDER ANY LAW FOR THE TIME BEING IN FORCE AND SUCH SCHEME IS NOTIFIED BY THE BOARD IN THIS BEHALF; (C) THE RESIDENTIAL UNIT HAS A MAXIMUM BUILT-UP ARE A OF ONE THOUSAND SQUARE FEET WHERE SUCH RESIDENTIAL UNIT IS SITUATED WITHIN THE CITY OF DELHI OR MUMBAI OR WITHIN TWENTY-FIVE KILOMETRES FROM THE MU NICIPAL LIMITS OF THESE CITIES AND ONE THOUSAND AND FIVE HUNDRED SQUARE FEE T AT ANY OTHER PLACE; ~* [AND] (D) THE BUILT-UP AREA OF THE SHOPS AND OTHER COM MERCIAL ESTABLISHMENTS INCLUDED IN THE HOUSING PROJECT DOES NOT EXCEED FIV E PER CENT OF THE AGGREGATE BUILT-UP AREA OF THE HOUSING PROJECT OR T WO THOUSAND SQUARE FEET, WHICHEVER IS LESS] THE FOLLOWING CLAUSES (E) AND (F) SHALL BE INSERTED AFTER CLAUSE (D) OF SUB-SECTION (10) OF SECTION 80-IB BY THE FINANCE (NO. 2) ACT, 2 009, W.E.F. 1-4-2010: (E) NOT MORE THAN ONE RESIDENTIAL UNIT IN THE HOUSI NG PROJECT IS ALLOTTED TO ANY PERSON NOT BEING AN INDIVIDUAL; AND (F) IN A CASE WHERE A RESIDENTIAL UNIT IN THE HOUSING PROJECT IS ALLOTTED TO A PERSON BEING AN INDIVIDUAL, NO OTHER RESIDENTIAL UN IT IN SUCH HOUSING PROJECT IS ALLOTTED TO ANY OF THE FOLLOWING PERSONS , NAMELY: (I) THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHILD REN OF SUCH INDIVIDUAL, (II) THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIV IDUAL IS THE KARTA, (III) ANY PERSON REPRESENTING SUCH INDIVIDUAL, THE SPOUSE OR THE MINOR CHILDREN OF SUCH INDIVIDUAL OR THE HINDU UNDIVIDED FAMILY IN WHICH SUCH INDIVIDUAL IS THE KARTA.' 6.3 HON'BTE KOLKATA ITAT IN ITS JUDGMENT DATED 24.03.20 06 IN THE CASE OF M/S BENGAL AMBUIA HOUSING DEVELOPMENT LTD. IN ITA NO. 1595/ KOL / 2005 HELD AS UNDER: '22. IT IS APPARENT FROM THE PERUSAL OF S. 80-IB(10 ) THAT THE SECTION HAS BEEN ENACTED WITH A VIEW TO PROVIDE INCENTIVE FOR BUSINE SSMEN TO UNDERTAKE CONSTRUCTION OF RESIDENTIAL ACCOMMODATION FOR SMALL ER RESIDENTIAL UNITS AND THE DEDUCTION IS INTENDED TO BE RESTRICTED TO THE P ROFIT DERIVED FROM THE CONSTRUCTION OF SMALLER UNITS AND NOT FROM LARGER R ESIDENTIAL UNITS. THOUGH THE AO HAS DENIED THE CLAIM OF THE ASSESSEE OBSERVING TH AT LARGER UNITS WERE ALSO CONSTRUCTED BY THE ASSESSEE, AT THE SAME TIME, IT IS ALSO A FACT ON RECORD THAT THE ASSESSEE HAD CLAIMED DEDUCTION ONLY ON ACCOUNT OF SMALLER RESIDENTIAL UNITS WHICH WERE FULFILLING ALL THE CONDITIONS AS CONTAINED IN S. 80-IB(10) AND THE SAME HAS NOT BEEN DISPUTED BY THE AO ALSO. WE HAVE ALSO NOTED DOWN THE FACT THAT EVEN THE PROVISI ON AS LAID DOWN IN S. M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 7 80-IB(10) DOES NOT SPEAK REGARDING SUCH DENIAL OF D EDUCTION IN CASE OF PROFIT FROM A HOUSING COMPLEX CONTAINING BOTH THE S MALLER AND LARGE RESIDENTIAL UNITS AND SINCE THE ASSESSEE HAS ONLY C LAIMED DEDUCTION ON ACCOUNT OF SMALLER QUALIFYING UNITS BY FULFILLING A LL THE CONDITIONS AS LAID DOWN UNDER S. 80-LB(10). THE DENIAL OF CLAIM BY THE ASSESSEE IS ON ACCOUNT OF RATHER RESTRICTED AND NARROW INTERPRETATION OF P ROVISIONS OF CL. (C) OF S. 80-1 B(1) WHILE COMING TO SUCH CONCLUSION, WE ALSO FIND SUPPORT FROM THE ORDER OF THE HON'BLE SUPREME COURT IN THE CASE OF BAIAI TEMPO LTD. (SUPRA), WHEREIN IT WAS HELD THAT PROVISIONS SHOULD BE INTERPRETED L IBERALLY AND SINCE IN THE PRESENT CASE ALSO, THE ASSESSEE BY CLAIMING PRO RAT A INCOME ON QUALIFYING UNITS HAS COMPLIED WITH ALL THE PROVISIONS AS CONTA INED IN THE SAID SECTION, IN'OUR CONSIDERED OPINION, SUCH CLAIM OF THE ASSESS EE WAS RIGHTLY ALLOWED BY THE LEARNED CIV A) BY REVERSING THE ORDER OF AO.' 6.3.1 THE APPEAL FILED BY THE REVENUE BEFORE HON'BL E CALCUTTA HIGH COURT AGAINST THE TRIBUNAL'S JUDGMENT WAS DISMISSED VIDE ITA NO. 458 OF 2006. 6.4 THE HON'BLE MADRAS HIGH COURT HAS ALSO HELD IN THE CASE OF M/S VISWAS PROMOTERS (P) LTD (255 CTR 149) THAT THE ASSESSEE IS ENTITLED TO CLAIM PROPORTIONATE RELIEF IN RESPECT OF UNITS SATISFYING THE CONDITION OF THE BUILT UP AREA. 6.5 IT IS ALSO WORTH MENTIONING HERE THAT THE DEDUCTION U/S 80IB(10) IS GIVEN FOR THE PROJECT AND IT IS QUITE POSSIBLE THAT AN ASSESSEE HAS A NUMBER OF PROJECTS AND OUT OF THOSE PROJECTS, ONLY SOME AR E ELIGIBLE FOR DEDUCTION AND OTHERS ARE NOT SO ELIGIBLE. AS SUCH, THERE IS N O RESTRICTION IN THE ACT THAT IN CASE OTHER RESIDENTIAL UNIT IN SUCH HOUSING PROJ ECT IS ALLOTTED TO A PERSON BEING THE INDIVIDUAL OR THE SPOUSE OR THE MINOR CHI LDREN OF SUCH INDIVIDUAL, THEN DEDUCTION IS TO BE DENIED TO THE OTHER UNITS, WHICH IS OTHERWISE ELIGIBLE FOR DEDUCTION. THIS PRINCIPLE IS CONCURRED BY THE H ON'BLE SUPREME COURT IN THE CASE OF PRINCIPAL COMMISSIONER OF INCOME-TAX VS. SHREENATH BUILDCONR20191 110 TAXMANN.COM 390 (SO. 'WHERE HIGH COURT UPHELD TRIBUNAL'S ORDER ALLOWING ASSESSEE'S CLAIM FOR DEDU CTION 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 A REA EXCEEDED UPPER LIMIT; THAT TOO, BY A SMALL MARGIN, DEDUCTION CLAIM ED COULD NOT BE DENIED IN RESPECT OF ENTIRE HOUSING PROJECT SLP FILED AGA INST SAID ORDER WAS TO BE DISMISSED'. 6.6 IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD THA T THE APPELLANT WAS DULY ELIGIBLE FOR DEDUCTION U/S 80IB(10) IN RESPECT OF R EST OF THE UNITS FOR WHICH NO VIOLATION OF THE PROVISIONS OF INCOME TAX ACT HAS B EEN MADE BY THE ASSESSE. THEREFORE, THE ASSESSING OFFICER WAS NOT R IGHT IN DISALLOWING THE SAID DEDUCTION ON WHOLE PROJECT AND DIRECTED TO RESTRICT THE DISALLOWANCE TO THE EXTENT OF PROFIT OF THAT PARTICULAR UNITS WHICH WERE ALLOTTED TO SH. RAKESH MAKKAR ALONG WITH TWO CO-OWNERS AND TO MRS. RITU MA KKER, THE WIFE OF SH. RAKESH MAKKER. ACCORDINGLY, GROUND NO. 2 OF APPEAL IS PARTLY ALLOW ED. M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 8 7. AS POINTED OUT BY THE LD. COUNSEL, THE FINDINGS OF THE LD. CIT(A) ARE BASED ON THE DECISIONS OF THE VARIOUS BENCHES OF THE TRIB UNAL AND THE LAW LAID DOWN BY THE HON'BLE MADRAS HIGH COURT IN THE CASE OF M/S VISVAS PROMOTORS PVT. LTD. 255 CTR 149 IN WHICH THE HON'BLE COURT HAS HELD THAT THE ASSESS EE IS ENTITLED TO CLAIM PROPORTIONATE RELIEF IN RESPECT OF UNITS SATISFYING THE CONDITION OF THE BUILT-UP AREA. IN THE CASE OF ITO VS. PARAS BUILDERS THE PUNE BENCH OF THE TRIBUNAL HAS HELD THAT WHERE THE ASSESSEE HAD VIOLATED PROVISION S OF SECTION 80-IB(10)(C) IN RESPECT OF TWO UNITS OF HOUSING PROJECT, DENIAL OF DEDUCTION U/S 80IB WOULD BE LIMITED ONLY TO SAID TWO UNITS AND FOR BALANCE UNIT S ASSESSED WOULD BE ENTITLED TO DEDUCTION. SIMILARLY, IN THE CASE OF OM SWAMI SMARAN DEVELPOERS (P) LTD. VS. ITO (SUPRA), THE MUMBAI BENCH OF THE TRIBUNAL HAS HELD THAT WHER E THE ASSESSEE DEVELOPER HAD ALLOTTED THREE FLATS IN A HOUSING PRO JECT TO A SINGLE PERSON IN VIOLATION OF SECTION 80 IB(10)(F) OF THE ACT, THE A SSESSEE WOULD BE ENTITLED TO DEDUCTION IN RESPECT OF THE REMAINING FLATS. IN TH E PRESENT CASE, SINCE THE ASSESSEE HAD CLAIMED FULL DEDUCTION U/S 80IB(10) OF THE ACT, WITHOUT COMPLYING WITH THE CONDITIONS LAID DOWN IN RESPECT OF CERTAIN UNITS, THE LD. CIT(A) HAS ACCEPTED THE ARGUMENTS ADVANCED ON THE ALTERNATIVE GROUND IN THE LIGHT OF THE CASES RELIED UPON BY THE ASSESSEE AND DIRECTED THE AO TO ALLOW THE DEDUCTION ON PROPORTIONATE BASIS. IN OUR CONSIDERED VIEW, THE FINDINGS OF THE LD. CIT(A) ARE WELL REASONED AND BASED ON THE DECISIONS OF THE VAR IOUS BENCHES OF THE TRIBUNAL AND THE RATIO LAID DOWN BY THE HON'BLE SUPREME COUR T AND THE HON'BLE HIGH M/S GREEN VALLEY APARTMENTS PVT. LTD. ITA NO. 1619/CHD/2019 9 COURTS REFERRED /DISCUSSED ABOVE. THEREFORE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). HEN CE, WE UPHOLD THE DECISION OF THE LD. CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 11 TH AUGUST,2021. SD/- SD/- .., .. ( N.K. SAINI) (R.L. NEGI ) / VICE PRESIDENT # %/ JUDICIAL MEMBER AG DATE: 11.08.2021 ,- .-/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. // CIT 4. / ()/ THE CIT(A) 5. - 4, & 4, 7/ DR, ITAT, CHANDIGARH 6. / GUARD FILE