Patel Jashwantlal A & Patel Punamchand ... vs Assessee

Patel Jashwantlal A & बनाम/ The Income Tax Officer Patel Punamchand N. Vs. Ward-3 Anurag Bungalows Gandhinagar Survey No.52/2/2 At & Post Bhatt, Gandhinagar-382 428 èथायी ले खा सं . /जीआइआर सं . / PAN/GIR No. : AAJFP 9082 C (अपीलाथȸ /Appellant) .. (Ĥ×यथȸ / Respondent) अपीलाथȸ ओर से / Appellant by : Shri N.C. Amin, AR Ĥ×यथȸ कȧ ओर से/Respondent by : Shri Nimesh Yadav Sr.DR

ु वाई कȧ तारȣख / सन Date of Hearing 16/12/2014 घोषणा कȧ तारȣख /Date of Pronounce ment 02 /01/2015

आदे श / O R D E R

PER SHRI KUL BHARAT, JUDICIAL MEMBER :

Both these appeals by the Assessee are directed against the separate orders of the Ld.Commissioner of Income Tax(Appeals)- Gandhinagar, ('CIT(A)' in short) dated 10/04/2014 & 02/06/2014 pertaining to Assessment Years (AYs) 2010-11 & 2011-12 respectively.

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -2-

Since common issues are involved, these appeals were heard together and are being disposed of by this consolidated order for the sake of convenience.

2. First, we take up the Assessee's appeal in ITA No.1838/Ahd/2014 for AY 2010-11. The Assessee has raised the following grounds of appeal:-

1. On the facts and in the circumstances of the case and in law, whether the learned CIT(A) was right in disallowing the claim of deduction U/s.80IB(10) as amended upto date and clarifications of Board's Circular dated 3.6.2010.

2. On the facts and in the circumstances of the case and in law, whether the learned CIT was right in disallowing assessee's claim of deduction U/s.80IB(10) when booking of and allotment of bunglows No.(12) & (14) was made when amendment in Sec.80IB(10)(e) & (f) was not in force that the sequence of the events, the date of booking and allotment, first payment and Banakhat itself proves beyond doubt that the amendment made by Finance (No.2) Act 2009 is not applicable to the fact and circumstances of the case of the appellant and considering the same, the claim of the appellant for deduction U/s.80IB(10) be allowed.

3. That the appellant has cited Board's Circular dated 3.6.2010 being explanatory Notes and the purpose of the amendment in Sec.80IB(10) is misread and misinterpreted and thereby claim of the appellant disallowed by learned A.O. and confirmed by learned CIT(A) be allowed.

WITHOUT PREJUDICE ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -3-

4. In the alternative the appellant has claimed deduction of profit U/s.80IB(10) @ 100% and in case, as alleged by learned A.O. and confirmed CIT(A) that there is violation of conditions for one unit, the profit earned of the said unit be taxed and not to reject the claim for remaining units for which there is no allegation for violation of conditions U/s.80IB(10) 1(a)(b)(c)(d)(e) & (f) of the I.T.Act 1961.

5. That the appellant has submitted various decisions of High Courts and Tribunals which have not been considered in view of Hon'ble Gujarat High Court decision before deciding the appeal of the appellant and considering the ratio of the said decisions, the appellant of the appellant be decided on merits.

6. Considering the peculiar facts and circumstances of the case of the appellant, the claim of the appellant be allowed in full as claimed in Return of Income/or in the alternative on pro-rata basis as per the verdicts of various High Court's decisions.

7. Your appellant craves leave to add, alter or amend any of the grounds till the appeal is finally heard and decided.

2. Briefly stated facts are that the case of the assessee was picked up for scrutiny assessment and the assessment u/s.143(3) of the Income Tax Act,1961 (hereinafter referred to as "the Act") was framed vide order dated 29/03/2013, thereby the Assessing Officer (AO in short) made disallowance of deduction claimed u/s.80IB(10) of the Act. Against this, the assessee filed an appeal before the ld.CIT(A), who after considering the submissions rejected the appeal.

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -4-

3. Since all the grounds are inter-connected, therefore these grounds are decided together. The ld.counsel for the assessee reiterated the submissions as were made in synopsis, which are in the following terms:-

"SYNOPSIS OF BRIEF FACTS FOR ARGUMENTS:

The facts of the case are as follows:

1. The appellant is engaged in the business of development and construction of housing project and during the year under consideration the appellant had developed housing project known as Anurag Bunglows Coop. Housing Service Society Ltd., at Bhat, Tal. Dist. Gandhinagar and claimed to be eligible for deduction U/s 80IB(10) and accordingly deduction of profit of Rs.2,27,75,970/- for the assessment year under consideration is claimed. All the conditions laid down in Section 80IB(10) are fulfilled, however, the learned A.O. has not agreed with the appellant's contentions and he is of the view that all the conditions laid down in Sec.80IB(10(a)(b)(c)(d)(e) are fulfilled except condition No.80IB(10)(f)(iii) which came into effect from A.Y. 2010-11 and therefore the claim of the appellant is not accepted and discussion is in paras 7 to 11 and finding is in para (12) &(13) of the assessment order.

2. The amendment in Sec.80IB(10)(e) & (f) have been came into force with effect from 1.4.2010 inserted by the Finance (No.2) Act 2009., which is reproduced as under:

The object of tax benefit for housing project is to build housing stock for low and middle income household which has been ensured by limiting the size of the residential units. However, this being circumvented be some developers by entering into agreement to sell multiple adjacent unit to a single buyer. Accordingly new clauses have been inserted in the said sub-section to provide that the undertaking which develops and builds the housing project shall not be allowed to allot more than one residential unit in the housing project to the same person. No other residential unit in such housing project is allotted to any other following persons, namely;

i) The individual or spouse or minor children of such individual,

ii) The Hindu Undivided Family in which such individual is the Karta.

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -5-

iii) Any person representing such individual, the spouse or minor children of such individual or the Hindu Undivided Family in which such individual is the Karta.

3. APPLICABILITY

The amendment is applicable from 1.4.2010 and will apply accordingly in relation to A.Y. 2010-11 and subsequent years. The amendment relates to restriction of specific transactions (i.e. allotment of residential units). Therefore, they would apply to transactions after specific date during the year, since the Finance (No.2) Act 2009 became law on 19.8.2009. The restriction regarding allotment of residential units shall not apply in respect of allotment made before August 19, 2009.

In the case of appellant, it has constructed total units 31, out of which 28 Units have been booked by members.

4. The learned A.O. has accepted that all the conditions laid down in Sec.

80IB(10)(a)(b)(c)(d)(e)(f) for 27 Units is fulfilled.. However, the learned A.O. has disallowed the claim on the ground that Unit No.12 and Unit No.14 sold to same member and therefore the total claim of deduction U/s 80IB(10) was rejected and taxed the income claimed as exempt for all the units which are fulfilling conditions and which are not fulfilling conditions as alleged by learned A.O.

5. The deduction was declined on the ground that appellant firm has allotted 2 residential units in Anurag bunglows to Dipak D. Patel, the Unit No. 12 in his name and Unit No. 14 in the name of his mother Kantaben D. Patel as power of attorney holder. It is further alleged that house purchased in the name of mother was also financed by Dipak D. Patel as mother was not having substantial income.

For availing benefit of Sec. 80IB(10), the appellant has to comply with the condition No.80IB 10(a)(b)(c)(d)(e) & (f). The only dispute raised by learned A.O. for non-fulfillment of condition No. 80IB10)(f) which is reproduced as under:

i) The individual or the spouse of the NOT DISPUTED minor children of such individual ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -6-

ii) The Hindu Undivided family in which NOT DISPUTED such individual is the karta.

iii) Any person representing such individual, DIPAK D. PATEL IS NOT the spouse or the minor children of NOT REPRESENTING SUCH such individual or the INDIVIDUAL I.E.DIPAK D. Hindu Undivided Family in which PATEL BUT REPRESENTING such individual is the karta. KANTABEN D.PATEL MOTHER OF DIPAK D.PATEL

6. Smt. Kantaben is residing separately from her son Dipakkumar Dahyabhai Patel of which evidences are also on the record of the learned A.O. Secondly the Share Certificate of ownership of Bunglow No. 14 in Anurag Bunglows is also standing in the name of Kantaben D. Patel and further in the Members List of the Society, the name of Kantaben D. Patel is appearing and maintenance deposit of Rs.50,000/- has been paid by Kantaben and list of members wherein name of Kantaben D. Patel is appearing against Unit No. 14. Further, the entrance fees in the Society of Rs.5/- and share subscription of Rs.250/- is also in the name of Smt. Kantaben D. Patel. Moreover in Sale Deed dated 7.4.2010 in Annexure on Page 102 of Paper Book it is clearly stated that Registration Fees is exempt to the ladies buyer and all the documentary evidences are lying on the record of the learned A.O.

7. There is no condition precedent in Sec. 80IB(10) regarding investment of funds. Even as per Sec. 80IB(10)(f) there is no condition which the learned A.O. has stated in the assessment order as well as CIT(A) in appellant order and for further clarifications the amended section is reproduced as under:

"80IB(10)(f): in a case where a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely -

iv) The individual or the spouse of the minor children of such individual

v) The Hindu Undivided family in which such individual is the karta.

vi) 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."

8. On going through the said clause (f) it is crystal clear that residential units in the housing project is allotted to a person in the case of appellant firm, the Unit No. 14 is to Kantaben D. Patel and application for enrolment of member of ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -7- Unit No.14 is also in the name of Kantaben Dahyabhai Patel and all the terms mentioned in the said application has been fulfilled by Kantaben D. Patel. According to the conditions as mentioned in the Membership Form/Booking Application Form have been fulfilled by Kantaben D. Patel and from the date of application i.e. 8.8.2009 to 7.4.2010 and she has paid the total amount of Rs.25.00 lacs and according to these conditions the allotment of Unit No. 14 made to her.

9. On the strength of this application from dated 8.8.2009 Banakhat was executed on 30.9.2009 and thereafter Sale Deed was executed on 7.4.2010.

The relevant condition No.11 of the Sale Deed is reproduced as under:

"That in regard to the booking of the property of said unit No. 14 we had executed an agreement to sale for the said property to you on 30.9.2009 which is notarized vide Sr. No. 8758/2009 you purchaser are and will have to obey all the details and conditions mentioned in this agreement to sale"

Hence amended provision of Sec. 80IB(10)(f)(iii) is not applicable as booking was prior to 19.8.2009 i.e. 8.8.2009.

10. The finding given by learned A.O. in para (9) that membership application from, produced by the appellant are not authenticated documents and the learned CIT(A) in para 4.3 has categorically stated that the applicant firm has allotted different units to two different persons of the same family just to overcome the provision of Sec. 80IB(10)(f) which means the learned CIT(A) has accepted the facts that two different persons are owner of Unit Nos. 12 & 14 and only finding given by learned CIT(A) is "of the same family and according to the wording of this section ,the definition of family is as under:

1.Individual or the spouse or the Kantaben is not a member of the minor children of such individual family of Dipakkumar D. Patel

2. Hindu Undivided Family in which Kantaben is not the member of Hindu such individual is a Karta Undivided Family of Dipakkumar D. Patel

3. Any person representing such Dipakkumar D. Patel not representing individual, the spouse or the minor such Individual i.e. Dipak D. Patel children of such individual or the [Self] but representing his mother and Hindu Undivided Family in which also not representing his wife Smt. such individual is the Karta Gira or minor daughter Suchi and ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -8-

also not re Karta of HUF of his family.

11. The learned A.O. as well as CIT(A) both the authorities are bound by the circular No.5 (2010) dated 3.6.2010 explaining the amendment brought by Finance Act (2) of 2009 dated 3.6.2010 which is reproduced by learned CIT(A) in appellate order on page (19) para (3). The purpose of amendment brought in section is mentioned in the Circular Para 33.7 and the facts of the case of the appellant is totally different. In the case of appellant there are two separate Unit No.12 and 14 which are independent bunglows and amendment in Statute Book and the purpose is mentioned below:

The condition No. 80IB(10)(c )which is reproduced as under:

"(c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometers from the municipal limits of these cities and one thousand and five hundred square feet at any other place"

According to these conditions the area of each residential units should not exceed 1000 Sq.fts within the cities of Delhi or Mumbai within 25 Kilometers from municipal limit of these citied and 1500 Sq.fts. at any other place. However, this is being circumvented by some developers by entering into an agreement which has multiple adjacent unit to a single buyer and according new clauses have been inserted in the said sub-section and the facts of the case of the appellant is not as mentioned in the amended section

In support of the same reliance is placed on the decision of Hon'ble Supreme Court in the case of Sanjivlal V/s CIT & ANR. [365 ITR P. 389 (SC)] wherein it is held as under:

"the intention of the legislature or the purpose which will the said provisions has been incorporated in the Act is also very clear that the assessee should be given some relief. A purposive interpretation should be given to the provisions of the Act while considering the claim for exemption from tax.

The appellant further relies on the decision of ITAT Mumbai 'J' Bench decision in the case of Emgeen Holding (P) Ltd., Vs. Dy.CIT [copy available on P.201 of Paper Book]

In the alternative the claim of the appellant: WITHOUT PREJUDICE ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively -9-

12. As alleged by learned A.O. that appellant has violated the condition No.(f) of Sec. 80IB(10), then the disallowance can be made to the extent of profit earned on the said unit No.14. In support of the same reliance is placed on the various decisions of High Courts and Tribunals copies of which was submitted to the learned CIT(A) Gandhinagar, have not been considered before deciding the appeal. The zerox copies of the said decisions is submitted during the course of appeal hearing and considering the same, pro-rata claim may please be allowed. The appellant further relies on the latest decision of Madras High Court in the case of CIT Vs. Working Womens Forum, 365 ITR P. 354 (Madras)under:

Charitable purpose - denial of exemption - trust making investment in shares of company - denial of exemption only to the extent of provision of violation and total denial of exemption the A.O. denied exemption U/s 11 & 12 for assessment years 2001-02 to 2003-04. The CIT(A) has held that only such part of the income which was violated of section 13(1)(d) could be brought to tax on maximum marginal rate and the entirety of the income of the assessee could not denied exemption which was confirmed by Tribunal. On appeal to High Court, the Hon'ble Madras High Court dismissing the appeal that denial of exemption should only to the extent of the income which was violating of section 13(1 )(d) and not the total denial of exemption U/s 11.

The Hon'ble Madras High Court has also followed the Bombay High Court decision in the case of D.I.T. (Exemption) vs. Sheth Mafatlal Gagalbhai Foundation Trust, 249 ITR P. 533.

The zerox copies of various decisions of High Courts and Tribunals is submitted during the course of appeal hearing.

13. In view of the above stated facts and circumstances of the case the appeal of the appellant may please be decided on merits.

Ahmedabad App. Rep. by N C Amin, Advocate 10th Dec. 2014"

3.1. He submitted that the authorities below were not justified in denying the claim of deduction made u/s.80IB(10) of the Act. The ld.counsel for ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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the assessee submitted that the AO has erroneously held that the assessee has not fulfilled the specific condition laid down in sub-clause (f)(iii) of section 80IB(10) of the Act. He submitted that there is no dispute with regard to fulfilling the other conditions. He submitted that the authorities below have erroneously in an unjustified manner denied the claim u/s.80IB(10) of the Act on the basis that two flats have been allotted in the name of single individual. He submitted that the authorities below failed to appreciate the fact that the flats were not allotted to a single individual, but, in fact, Smt.Kantaben D.Patel mother of Shri Deepak D. Patel had purchased the flat through Shri Deepak Patel (representative of Smt.Kantaben D.Patel). He submitted that even otherwise also, the provisions of section 80IB(10)(f)(iii) came into force only w.e.f. 01/04/2010. The ld.counsel for the assessee submitted that the housing unit was allotted to the purchasers in the year-2009. He drew our attention towards page Nos.176 to 200 of the paper-book.

3.2. On the contrary, ld.Sr.DR supported the orders fo the authorities below.

4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) confirmed the finding of the AO by observing as under:-

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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"4..... The AO at para-11 of his order has observed that while calculating built-up area, appellant has not included road and open space of the Scheme and if such area is included, built-up area of each unit would exceed 1500 sq.ft. While making this observation AO has completely ignored the definition of built-up area provided in Section 80IB(14) r.w.s. 80IB(10), which reads as under:

"Built-up area means the inner measurement of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units."

Thus, definition of built-up area is restricted to inner measurement of each residential unit and does not include common areas i.e. road and open space of the Scheme. The Hon'ble Karnataka High Court in the case of CIT v/s. Raghavendra Construction (2012) 22 taxmann.com 260 (Kar.) has held that if common area does not exclusively belong to owner of a residential unit and if he has to share that common area with owner of another residential unit, then that common area has to be excluded while computing built- up area to extend benefit under section 80-IB(10). Considering the same, observation of AO that built-up area of the Scheme is in excess of 1500 sq.ft. is incorrect. However, as appellant has violated provisions of section 80IB(10)(f) referred supra, AO was correct in rejecting entire deduction u/s.80IB(10) claimed by appellant for reasons discussed hereinabove.

The Appellant in its alternate contention has stated that only proportionate disallowance should be made as violation of Section 80IB(10) is only with reference to two units for which reliance was placed on decision of Vishwas Promoters (Pvt) Limited. This ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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alternate contention cannot be accepted as decision relied upon by Appellant is in different context because in the said case, certain residential block had built-up area in excess of 1500 sq.ft., whereas in the present case, Appellant has violated the basic object of providing concession to housing project as discussed herein above and provision of Section 80IB(10)(f) relied upon by AO does not provide any concession or relaxation if more than one house is allotted to an individual as provided in sub-section. Thus, on plain reading of express provision of the Act, as discussed hereinabove, Appellant is not entitled to deduction under Section 80IB(10) as claimed in Return of Income."

4.1. From the above finding of the ld.CIT(A), it is evident that the ld.CIT(A) has disallowed the deduction on the basis that deduction u/s.80IB(10) of the Act is not allowable as the assessee has made violation of condition embedded into clause(f) of section 80IB(10) of the Act. As per section 80IB(10(f) of the Act, the deduction will not be allowable if a residential unit in the housing project is allotted to a person being an individual, no other residential unit in such housing project is allotted to any of the following persons, namely:- (i) the individual or the spouse or the minor children of such individual, (ii) the Hindu undivided family in which such individual is the karta and (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.

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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4.2. The aforesaid provision is inserted by the Finance (No.2) Act, 2009, w.e.f. 01-04-2010. The objection of the ld.CIT(A) is that the sale consideration towards allotment of residential unit was paid by the individuals to the assessee after the enactment of the aforesaid provision. However, we find from the documents enclosed in the paper-book, namely, agreement to sell dated 07/09/2009 and Banakhat dated 30/09/2009 the payments have been made by way of cheques in September-2009 and October-2009 except the amount of Rs.3 lacs which is paid on 31/03/2010. Therefore, as per the agreement to sell and sale-deed enclosed in the paper-book the payments were made even before the aforesaid provision came into force. Under these facts, we are of the considered view that the authorities below were not justified in rejecting the claim of deduction u/s.80IB(10) of the Act as claimed by the assessee on the basis of a condition created by a provision which came into force subsequent to the allotment of the residential unit. Therefore, we hereby direct the AO to allow the deduction claimed by the assessee and delete the addition made on account of disallowance of deduction claimed u/s.80IB(10) of the Act. Thus, assessee's appeal in ITA No.1838/Ahd/2014 for AY 2010-011 is allowed.

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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5. Now, we take up the Assessee's appeal in ITA No.2426/Ahd/2014 for AY 2011-12. The assessee has raised the following grounds of appeal:-

1. That the learned A.O. has erred both in law and on the facts of the case in determining total income of Rs.2,45,32,270/- as against the returned income shown as NIL.

2. That the appellant is fulfilling all conditions as enumerated in Sec.80IB(1)(a)(b)(c)(d)(e) & (f). However, without considering it properly and intention of the section, the disallowance made by learned A.O. even though all the materials are available on record and therefore claim of the appellant be allowed as claimed in return of income.

3. That the appellant has not allotted residential units to one individual Dipakkumar Dahyabhai Patel and there is no violation of conditions prescribed U/s.80IB(10)(e)(f) of the I.T.Act 1961 and therefore the claim of the appellant disallowed by the learned A.O. U/s 80IB(10) on irrelevant facts be allowed.

4. On the facts and circumstances of the case of the appellant that no two units have been booked in the name of one individual and documentary evidences are on the record of the learned A.O. and considering the same, the claim U/s.80IB(10) be allowed.

5. That the learned A.O. has failed to appreciate the facts that the parties who have booked Unit Nos.12 & 14 was before the amendment came into force and considering the departmental Circular No.5/2010 dated 3.6.2010 the claim disallowed by learned A.O. and confirmed by learned CIT(A) under mistaken ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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notion, belief and on mistaken facts U/s.80IB(10) of the I.T.Act 1961, be allowed.

6. That the appellant firm has received booking applications of Unit 12 & 14 from members viz. Patel Dipakkumar Dahyabhai Patel and Kantaben Dahyabhai Patel on 1.8.09 and 8.8.09 respectively and the appellant firm is bound by the terms and conditions mentioned in enrollment of members/booking applications and as per the terms both the parties have acted upon and subsequent banakhat and sale deed was executed on the basis of booking application as such amended provisions has no application to the facts and circumstances of the case of the appellant firm.

WITHOUT PREJUDICE

7. That the appellant has claimed deduction amounting to Rs.2,45,32,270/- U/s.80IB(10) of total project, however, if the learned A.O. is not agreeable, in the alternative and without prejudice and reserving our rights the profit of one unit proportionately be disallowed of the total project and the appellant has relied on various decisions and copies of the same are on the record of the learned A.O. and CIT(A) and considering the decisions various of High Courts and Tribunals the claim of the appellant be allowed on pro rata basis U/s.80IB(10).

8. That there is no provision in the Act for disallowance of total claim for alleged violation of conditions for 1 unit, and the total claim of deduction U/s.80IB(10) may not be disallowed but keeping in view of various decisions of High Courts, the pro rata claim of deduction be allowable and there is no any decision against the appellant and as such on incorrect facts and misinterpretation of section, mistaken notion, the claim of the appellant be allowed partially/fully.

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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9. That the learned A.O. has given specific finding in para 13 of the assessment order that the claim of the appellant is disallowed on non-fulfillment of conditions U/s.80IB(10)(f)(iii) of the I.T.Act 1961 which is against the facts and materials available on record and principle of Board's Circular, the claim of the appellant be allowed.

10. That the order passed by learned A.O. in rejecting the claim of the appellant U/s.80IB(10) and confirmed by CIT(A) is bad in law, illegal; void and not in accordance with the provisions of the I.T.Act 1961.

11. That the learned A.O. himself has admitted that the appellant could not furnish exact quantum amount of particular unit and profit of the whole project was only worked out which is against the materials available on record and the appellant had submitted working to the learned A.O. along with letter dated 10.12.2013 and therefore finding given by learned A.O. is perverse and alternative claim of proportionate be allowed.

12. Your appellant craves leave to add, alter or amend any of the grounds till the appeal is finally heard and decided.

6. After hearing both the sides, we find that the facts are identical to the facts as were in Assessee's appeal bearing ITA No.1838/Ahd/2014 for AY 2010-11(supra), wherein we have allowed the Assessee's appeal. Since there is no change in the facts and circumstances of the case in this year, for the same reasoning, we allow the Assessee's appeal in ITA No.2426/Ahd/2014 for AY 2011-12. Thus, grounds of Assessee's appeal are allowed.

ITA Nos.1838 & 2426/Ahd/2014 Patel Jashwantlal A & Patel Punamchand N. vs. ITO Asst.Years - 2010-11 & 2011-12 respectively

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7. In the combined result, both the appeals of the Assessee are allowed.

Order pronounced in the Court on Friday, the 2nd of January, 2015 at Ahmedabad.

Sd/- Sd/- (अǓनल चतव ु ȶदȣ) (कुल भारत) लेखा सदèय ÛयाǓयक सदèय ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 02/ 01 /2015 टȣ.सी.नायर, व.Ǔन.स./T.C. NAIR, Sr. PS

आदे श कȧ ĤǓतͧलͪप अĒेͪषत/Copy of the Order forwarded to :

1. अपीलाथȸ / The Appellant

2. Ĥ×यथȸ / The Respondent.

3. संबंͬधत आयकर आयुÈत / Concerned CIT

4. आयकर आयुÈत(अपील) / The CIT(A)-Gandhinagar

5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, अहमदाबाद / DR, ITAT, Ahmedabad

6. गाड[ फाईल / Guard file.

आदे शानुसार/ BY ORDER,

स×याͪपत ĤǓत //True Copy//

उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपीलȣय अͬधकरण, अहमदाबाद / ITAT, Ahmedabad

1. Date of dictation ..29/30.12.14 (dictation-pad 13-pages attached at the end of this File)

2. Date on which the typed draft is placed before the Dictating Member ...1.1.15

3. Other Member...

4. Date on which the approved draft comes to the Sr.P.S./P.S.................

5. Date on which the fair order is placed before the Dictating Member for pronouncement......

6. Date on which the fair order comes back to the Sr.P.S./P.S.......2.1.2015

7. Date on which the file goes to the Bench Clerk.....................2.1.2015

8. Date on which the file goes to the Head Clerk..........................................

9. The date on which the file goes to the Assistant Registrar for signature on the order..........................

10. Date of Despatch of the Order..................