- (1.) By this common judgment we dispose of the six appeals filed under section 260A of the Income-tax Act, 1961. For the sake of convenience, we will deal with the facts in Income Tax Appeal No. 3 of 2013. The common question of law that has been proposed in Income Tax Appeals Nos. 3 of 2013, 62 of 2013, 1627 of 2012 and 1628 of 2012 is as under: "Whether, on the facts and in the circumstances of the case, the hon'ble Tribunal was right in law in holding that the assessee is eligible for deduction under section 80-IB(10) for the assessment year 2006-07 relying on the decision of the hon'ble Bombay High Court in the case of CIT v. Vandana Properties, 2013 353 ITR 36in ITA No. 3633 of 2009 and 4361 of 2010 dated March 28, 2012, since and the special leave petition has been filed before the hon'ble Supreme Court which is pending - In Income Tax Appeals Nos. 1603 of 2013 and 1757 of 2013 two identical questions of law are proposed, although as worded, they can be distinguished from the common question in Income Tax Appeals Nos. 3 of 2013, 62 of 2013, 1627 of 2012 and 1628 of 2013. The two questions are as under: "(i) Whether, on the facts and in the circumstances of the case and in law, the hon'ble Tribunal is justified in holding that the assessee is entitled to the deduction under section 80-IB(10) when the area of plot on which the following project is constructed is less than 1 acre (ii) Whether, on the facts and in the circumstances of the case and in law, the hon'ble Tribunal is justified in holding that the assessee is entitled to the deduction under section 80-IB(10), when the area of the flat constructed is more than 1,500 sq. ft. - This judgment will deal with all the questions in all the above appeals.
(2.) Vide order under section 147, read with section 143(3), dated December 16, 2010, the Assessing Officer held that the assessee has furnished the particulars of income and, hence, his gross total income under section 143(3) is Rs. 1,33,12,423 and disallowed the deduction under section 80-IB(10) of the Income-tax Act. The Assessing Officer held that the claim for deduction under section 80-IB(10) pertains to residential units in the project, which the Assessing Officer found, was not satisfying the upper limit of 1,500 sq. ft. as the Assessing Officer found that one unit was with one kitchen, one entrance, one electric meter and single family ownership though it was the contention of the assessee's representative that two units have been merged together to form a single unit at the request of purchasers.
(3.) The Commissioner of Income-tax (Appeals) found that the appellant had not fulfilled the condition of clause (b) of section 80-IB(10) and was not entitled for deduction under section 80-IB(10). According to the Commissioner of Income-tax (Appeals), the project is on the plot of land which has a minimum area of one acre. The assessee then preferred the appeal before the Income-tax Appellate Tribunal. By the order dated May 4, 2010, it allowed the appeals. The Tribunal concluded that the flat area is less than 1,500 sq. ft. and, therefore, the assessee was eligible for deduction under section 80-IB(10). The Tribunal negated the Departmental representative's contention the agreement indicates super built-up area of more than 1,500 sq. ft. cannot be accepted as super built-up area includes common areas, stair cases and also balcony. The Tribunal concluded that the concept of super built-up area cannot be equated with the built-up area as per the regulations which refers to only to carpet area excluding the balcony and the terrace. Moreover, it is found by the Commissioner of Income-tax (Appeals) has held in favour of the assessee in the assessment years 2003-04 and 2004-05 on the same blocks and this was not disputed by the Revenue. Accordingly, it was held that there is no dispute with reference to the area of flats less than 1,500 sq. ft. in block E-5 and I. The "project" as whole was found to have been standing on more than one acre area and the apartments constructed therein are within 1,500 sq. ft. In this manner the appeal was allowed. Being aggrieved by the said decision the Department has preferred this appeal raising the aforesaid question/s.;