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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI GEORGE MATHAN, & SHRI A. MOHAN ALANKAMONY
आदेश / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER:
the Order of Commissioner of Income Tax (Appeals)-1, Chennai, in dated 03.08.2016 for the AY 2012-13.
Shri Sasikumar, JCIT, represented on behalf of the Revenue and Shri B.Ramakrishnan, CA, represented on behalf of the assessee.
ITA No.3037/Mds/2016 :- 2 -:
It was submitted by the Ld.DR that the assessee had claimed deduction u/s.80IB(10) in respect of the housing project which had been granted approval on 24.03.2010. It was a submission that on appeal Ld.CIT(A) had held that the first approval in respect of the said project was taken on 24.10.2007. It was a submission that the Order of the Ld.CIT(A) was liable to be reversed.
In reply, the Ld.AR submitted that the project Vikas Hill View was originally approved by the CMDA on 24.10.2007 for the construction of 57 residential units. It was a submission that as 57 residential units were larger in size, it was not entitled to the deduction u/s.80IB(10).
Subsequently, the project was modified and the modified drawings were given approval by the CMDA on 24.03.2010. It was a submission that for the AY 2010-11, the assessee had claimed deduction u/s.80IB(10) and the Ld.CIT(A) had directed the AO to grant the assessee the benefit of deduction u/s.80IB(10) after verification of the issue in respect of the commercial space. It was a submission that for the AY 2011-12 also, the Hon’ble Jurisdictional High Court of Madras vide Order dated 06.06.2017 in Tax Case (A) No.811/2016 confirmed the action of the Tribunal in restoring the issue to the file of the AO for re-adjudication. It was a submission that for the relevant assessment year, the approval having been granted to the assessee by the CMDA originally on 24.10.2007 and only the modifications having been approved on 24.03.2010, the assessee was entitled to the benefit of deduction u/s.80IB(10) in view of the ITA No.3037/Mds/2016 :- 3 -:
Explanation to Sec.80IB(10). It was a submission that the order of the Ld.CIT(A) was liable to be confirmed.
We have considered the rival submissions. It is noticed that the assessee has claimed the deduction u/s.80IB(10) in respect of the same project right from the AY 2010-11. For the AYs 2010-11 & 2011-12, the issue in respect of the claim of deduction u/s.80IB(10) has been restored to the file of the AO for re-adjudication. Here, it must be mentioned that for the AY 2010-11, the issue has been restored to the file of the AO for verification of the commercial space. For the AY 2011-12, the issue has been restored by the Tribunal again on the ground that the relevant material, on the basis of which, the claim is made by the assessee company was not available. For the AY under appeal, it is noticed that the Ld.CIT(A) has restored the issue of the deduction u/s.80IB(10) to the file of the AO in respect of the issue of the commercial space, though, he has held that the approval taken first on 24.10.2007 is to be taken as the requisite approval for the deduction u/s.80IB(10). This being so, as the issue of computation of deduction u/s.80IB(10) itself is restored to the file of the AO for re-adjudication in respect of the issue of the commercial space, we are of the view that even the issue of approval is to be restored to the file of the AO for re-adjudication. This is because admittedly there are two approvals one dated 24.10.2007 and other dated 24.03.2010.
The AO has not examined as to whether the approval dated 24.03.2010 is a totally new approval or whether it is modification of the earlier approval
ITA No.3037/Mds/2016 :- 4 -: granted on 24.10.2007? This would have to be verified after taking into consideration the details of the application made before the CMDA as also after verifying with the CMDA as to whether the approval dated 24.10.2007 has been withdrawn or modified? This being so, the issue is restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity to substantiate his case.
In the result, the appeal filed by Revenue is allowed for statistical purposes.