COMMISSIONER OF INCOME TAX Vs. MANJU R GUPTA

JUDGEMENT

(1.) THE only question and which is stated to be substantial question of law reads as under:

(2.) IN relation to this question, Mr. Malhotra submits that it is not covered by any of the orders passed by this Court earlier and against the Revenue. Rather, this question is a substantial question of law because the benefit of section 80IB(10) cannot be derived and the deduction was impressible as developer -assessee in this case had violated section 80IB(10)(c). The residential unit must have the maximum built up area of one thousand sq. ft. if the same is situated within the city of Delhi or Mumbai. Admittedly, this construction and in relation to the NG Complex came within the city of Mumbai limits. The residential unit should have an area less than one thousand sq. ft. However, admittedly, two flats in the project, namely, flat B103, B903 exceeded one thousand sq. ft. This was the detail which was available with the Assessing Officer. The Assessing Officer and the Commissioner both held that the Assessee had constructed these two flats with more than thousand sq. ft. area. Hence the requirement under section 80IB(10) is not fulfilled.

(3.) MR . Mistry, learned Senior Counsel, has relied upon the finding of the Commissioner and the Tribunal on this point. Both referred to the location and number of the flats and go ahead to term the construction of these flats as beyond the permissible limit of thousand sq.ft. However, the Tribunal concluded that the area of the flats is less than one thousand sq. ft. and within the meaning of section 80IB(10)(a). The constructed area is less than one thousand sq. ft. However, as per the demand and requirement of the buyer one room from each flat was either added or taken away thereby the area of the flat exceeded one thousand sq. ft. but that is at the time of sale. In such circumstances, the benefit could not be denied.