COMMON JUDGMENT
The Revenue is on appeals as against the order of the Income Tax Appellate Tribunal relating to assessment years 2003-04 and 2004-05. Following is the question of law raised for consideration:-
“Whether on the facts and circumstances of the case, the Tribunal was right in holding that the assessee is entitled for deduction under Section 80IB?”
2. The assessee company is engaged in the business of promoting, developing and construction of residential flats. It is seen from the facts narrated that it had entered into an agreement with the owner of land admeasuring 147062 sq.ft at Adambakkam for the development of a Group Housing residential complex by name Kadambari, Avaram, Thamarai, Parijatham, Gurinji, Kasthuri, Manjari and Neelambari. The Assessing Officer pointed out that the allottees are conveyed undivided interest in the land as per Schedule B of the agreements. Item No. 1 of Schedule B is with regard to allotment of undivided share in respect of area of land earmarked in respect of each project. On the basis of constructed area sold, undivided share of land is apportioned to the allottee out of the area of land in respect of each project. Item No. 2 of Schedule B is in respect of common area of land available after earmarking land area in respect of each project. Thus, each project is independent in that, amenities like car park, vehicle park, staircases, elevators are exclusive to each project. The assessee had shown each of the projects in its accounts separately. Thus, on an extent of more than three acres of land, it had eight independent housing projects. The Assessing Officer viewed that on taking out each of the projects separately, the same did not satisfy the requirement under Section 80-IB(1)(a), in the sense that the projects was not located within the minimum area stipulated under the provisions viz., one acre. Thus, the claim for deduction was rejected. Aggrieved by the same, the assessee went on appeal before the Commissioner of Income Tax (Appeals), who allowed the assessee's appeal. Aggrieved by the same, the Revenue went on appeal before the Income Tax Appellate Tribunal, who agreeing with the Commissioner of Income Tax (Appeals) rejected the Revenue's appeal. The Tribunal pointed out that the assessee started one single housing project with different blocks and each building block was not separated by metes from the other blocks and the flat owners of the different blocks enjoy the common recreational facilities and amenities. In the circumstances, the Tribunal agreed with the assessee. Aggrieved by the order of the Tribunal, the Revenue is on appeal before this Court.
3. As rightly pointed out by the learned counsel for the assessee, applying the decision of the Bombay High Court reported in [2012] 206 TAXMAN 584 - CIT v. VANDANA PROPERTIES, this Court had already considered similar issue in T.C Nos. 1014 of 2009, 857 of 2010 and 190 to 192 of 2012 and W.A No. 471 of 2010 - Viswas Promoters Private Limited v. Income Tax dated 2.11.2012 and allowed the assessee's appeal. We may point out here that the present assessee's stand is on a better footing than that of the decision of the Bombay High Court. The facts in the decision of the Bombay High Court related to the case of the assessee putting up extra blocks in the land, where there were already five buildings. As far as the order passed by us in T.C Nos. 1014 of 2009, 857 of 2010 and 190 to 192 of 2012 and W.A No. 471 of 2010 - Viswas Promoters Private Limited v. Income Tax dated 2.11.2012, is concerned, as in the present case, several blocks were put up in a larger area which admittedly exceeded the required area specified in Clause (a) sub section 10 of Section 80-IB viz., one acre. Thus, applying the decision of this Court rendered in T.C Nos. 1014 of 2009, 857 of 2010 and 190 to 192 of 2012 and W.A No. 471 of 2010 - Viswas Promoters Private Limited v. Income Tax dated 2.11.2012, we have no hesitation in rejecting the Revenue's appeal, thereby confirm the order of the Tribunal.
4. The above Tax Case (Appeals) are dismissed. No costs.
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