Income Tax Appellate Tribunal - Bangalore
M/S. Silicon Estates, ,Bengaluru vs Deputy Commissioner Of Income Tax, ... on 4 August, 2025
ITA No.1526 & 1534/Bang/2024
M/s. Silicon Estates, Bangalore
IN THE INCOME TAX APPELLATE TRIBUNAL
"B''BENCH: BANGALORE
BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER
AND
SHRI KESHAV DUBEY, JUDICIAL MEMBER
ITA No.1526/Bang/2024
Assessment Year : 2014-15
M/s. Silicon Estates DCIT
No.14, 6th Floor, HM Geneva Central Circle-1(4)
House C.R. Building, No.1, Queens
Cunningham Road Vs. Road
Bengaluru 560052 Bangalore-560001
PAN NO :ABEFS6150N
APPELLANT RESPONDENT
ITA No.1534/Bang/2024
Assessment Year : 2014-15
DCIT M/s. Silicon Estates
Central Circle-1(1)(1) No.14, 6th Floor, HM Geneva House
Room No. 215, 2nd Floor Cunningham Road
Vs.
BMTC Building, Kormangala Bengaluru 560052
Bangalore - 560095
APPELLANT RESPONDENT
Appellant by : Sri Annamalai, A.R.
Respondent by : Sri Subramanian S., D.R.
Date of Hearing : 07.05.2025
Date of Pronouncement : 04.08.2025
ORDER
PER KESHAV DUBEY, JUDICIAL MEMBER:
These cross appeals are filed against the order of ld.CIT(A)-11, Bangalore dated 15.06.2024 vide DIN: ITBA/APL/M/250/2024- 25/1065683453(1) passed u/s 250 of the Income Tax Act, 1961 (in short "the Act") for the A.Y.2014-15.
ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 2 of 16
2. The Assessee has raised the following grounds of appeal: -
"1. The impugned order of the learned Commissioner of Income-tax (Appeals) - 11, Bengaluru, Karnataka passed under Section 250 of the Income Tax Act, 1961 to the extent against the appellant is opposed to law, weight of evidence, probabilities, facts and circumstances of the Appellant's case.
2. The learned Commissioner of Income-tax (Appeals) failed to appreciate that the provisions of section 80-IB(10)(e) and (f) inserted by Finance (No.2) Act 2009 w.e.f 01.04.2010 are prospective in nature w.e.f 01.04.2010 and consequently the appellant is entitled to full relief as claimed by the appellant under section 80-IB(10) of the Act on the facts and circumstances of the case.
3. The learned Commissioner of Income-tax (Appeals) erred in disallowing deduction under section 80-IB of the Act on a pro-rata basis in respect of the two flats allocated to Shri. Ramzan Ali Khan/RAK constructions (flat 1403 and flat 1503) and in respect of the two flats allocated to KAP(I) Projections and Constructions Pvt. Ltd. (flat 610 and 409) as alleged by the learned Commissioner of Income-tax (Appeals) in the order on the facts and circumstances of the case.
4. The learned Commissioner of Income-tax (Appeals) failed to appreciate that the appellant is entitled to deduction under section 80-IB(10) of the Act tothe extent claimed by the appellant for the impugned Assessment Year and no disallowance is warranted on the facts and circumstances of the case.
5. The learned Commissioner of Income-tax (Appeals) failed to consider the detailed written submission filed by the appellant in respect of the above issues on the facts and circumstances of the case.
6. The learned Commissioner of Income-tax (Appeals) erred in not adjudicating the grounds of appeal vide Ground No. 7 and further erred in holding that it becomes academic and therefore need not be adjudicate and is treated as dismissed for statistical purpose on the facts and circumstances of the case.
7. The Appellant denies itself liable to be charged interest under Section 234B of the Act in respect of the extent of disallowance of deduction under section80-IB(10) of the Act confirmed by the learned Commissioner of Income- tax (Appeals) on the facts and circumstance of the case.
8. The appellant craves for leave of this Hon'ble Tribunal, to add, alter, delete, amend or substitute any or all of the above grounds of appeal as may benecessary at the time of hearing.
9. For these and other grounds that may be urged at the time of hearing of appeal, the appellant prays that the appeal may be allowed for the advancement of substantial cause of justice and equity."
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3. The Revenue has raised the following grounds of appeal: -
1) Whether in the facts and circumstances of the case, the Ld.CIT(A) is right in law in relying upon the decision of Hon'ble Jurisdictional ITAT rendered in assessee's own case for AY 2013-14 even when the same has not yet reached finality and pending for adjudication before Hon'ble High Court?
2) Whether in the facts and circumstances of the case, the Ld.CIT(A) has erred in allowing deduction under section 80-IB(10), without appreciating that the assessee violated clause (e) and (f) of Section 80-IB(10) by allotting more than one residential units in the housing project to any person not being an individual?
3) Whether in the facts and circumstances of the case, the Ld.CIT(A) is right in law in allowing proportionate relief to assessee even though the Explanatory Circular No. 5/2010 dated 3.6.2010 for Finance (No. 2) Act, 2009 mandates that the conditions contained in clauses (a) to (f) of section80-IB(10) are cumulative, as is evident from the use of semi colon (;) after each clause up to clause (d) and use of 'and' between clauses (e) and (1), and therefore to be eligible for deduction under section 80-IB(10), all conditions specified in clauses (a) to (f) would have to be met in full?
4) Whether in the facts and circumstances of the case, the Ld.CIT(A) has erred in ignoring that the principle of proportionality is not applicable to clauses (e) and (f) of Section 80-IB(10) and thus, erred in not following the ratio of Padmasundara Rao (2002) 255 ITR 147 wherein the Hon'ble Supreme Court held that courts cannot read anything into a statutory provision which is plain and unambiguous?"
4. The brief facts of the case are that the assessee is a Partnership firm constituted vide Deed of Partnership dated 04.07.2005 & engaged in the business of Development and construction of residential and commercial buildings. The partners of the assessee firm are Mr. H.J. Siwani, Mr. M.J. Siwani and Sri Chandra Singh.The Partnership firm is also registered with the Registrar of Firms vide No. 903/2005-06 dated 16.07.2005. The assessee firm filed its return of income for the A.Y.2014-15 on 31.10.2014 disclosing taxable income of Rs.3,58,020/- after claiming deduction under section 80IB(10) of the Act amounting to of Rs.2,46,11,965/-. Thereafter, the case of the assessee was selected for scrutiny through CASS and accordingly, notices under section 143(2) as well as 142(1) of the Act were issued calling for the details. The AO after carefully examining the books of accounts and other details furnished during the course of assessment proceedings, completed the assessment by treating the status of assessee as ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 4 of 16 "Association of Persons" (AOP) consisting of two members namely Shri M.J. Siwani and Shri H.J. Siwani. This issue of the status of the assessee had also been the subject matter of examination in the preceding assessment year and therefore the AO again examined the status in the present proceedings for the Asst. year 2014-15 and disregarded the status of the assessee as the Partnership firm mainly on the ground that since the profits from the development of residential complex is entitled to deduction u/s 80IB(10) of the Act, Shri Chandra Singh wanted to convert the profits from the sale of his land into the profits from the development of residential apartments so that such gain is also exempt from tax u/s 80IB(10) of the Act and accordingly held that the firm is only a colorable device whose purpose is to evade payment of taxes. Hence the profit made by the entity M/s. Silicon Estate was assessed in the status of AOP with two members as above.
4.1. Further, the AO also disallowed the deduction claimed under section 80IB(10) of the Act amounting to Rs.2,46,11,965/-- on the following grounds-
(i) Project is not completed within the time allowed- The assessee has completed construction of only building-1 & the building-2 which is also part & parcel of the approved project has not been completed till 31/03/2011 and hence the BDA has issued partial occupancy certificate & no completion certificate is issued by the BDA for the project. Since the assessee has not completed the entire project and only a portion of it is completed, the condition prescribed in section 80IB(10) of the Act cannot be said to be fulfilled & therefore the project becomes ineligible for deduction. In the absence of completion certificate as prescribed explicitly in the provision of section 80IB(10) of the Act, the deduction cannot be granted to the assessee.
ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 5 of 16
(ii) Built up area of residential units exceeding 1500 sqft- The AO noticed that two flats of the project bearing No. 1403 & 1503 was allotted to Ramzan Ali Khan. Both these flats were combined internally by way of stair case running inside the apartments. The two flats bearing no. 1503 and 1403 each of them measuring 1717 Sq. ft. totaling 3434 Sq. ft was designed in the model of a 'duplex flat'. The entire consideration for both the flats had been paid by way of adjustment of retention money receivable from the assessee. The AO held that as the assessee had sold flats exceeding 1500 Sq. ft. to single buyer which is a clear violation of the condition as stipulated in section 80IB(10) of the Act.
(iii) More than one apartment sold to same buyer- As per the provisions of clause (e) of section 80IB(10), which had been introduced by the Finance Act, 2009 w.e.f. 01/04/2010, to become eligible for the deduction, more than one flat should not be sold to a same person. However, in the present case, two flats in HM Symphony bearing No. 409 & 610 in concert tower were initially allotted in favour of M/s KAP (India) Projects and Constructions Pvt. Ltd. The assessee firm claims that the flats allotted to M/s KAP (India) Projects and Constructions Pvt. Ltd. were subsequently cancelled and sold to Mrs. Zubaida Aboobacker and Mr. Satan Kumar vide sale deeds dated 12.11.2009 and 06.02.2010. The AO held that since the initial agreement to sale for final two flats in HM Symphony bearing No. 409 & 610 in concert tower was executed between the assessee firm & M/s KAP (India) Projects and Constructions Pvt. Ltd against the payment due amounting to Rs. 1.58 crores & subsequently M/s KAP (India) Projects and Constructions Pvt. Ltd sold these flats to Mrs. Zubaida Aboobacker at Rs. 50 lakhs and Mr. Satan Kumar at Rs.40,50,000/-, therefore it can be concluded that more than one flat has been allotted to ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 6 of 16 one entity in violation of the conditions prescribed in section 80IB(10) of the Act.
(iv) Finally, the AO concluded by stating that since the same project declared in the previous assessment year is also relevant for the current assessment year, the ratio applied in the preceding Asst. years in respect of disallowance of the claim of the deduction u/s 80IB is also applicable for the current year and accordingly disallowed the deduction claimed u/s 80IB(10) of the Act & assessed on a total income of Rs.2,49,69,980/- and determined the tax and interest payable amounting to Rs.43,34,000/-.
5. Aggrieved by the order of the AO passed under section 143(3) of the Act on 31.08.2016, the assessee preferred an appeal before Ld. CIT(A).
6. The Ld.CIT(A) on the issue of completion of assessment by the AO treating the status of assessee as "Association of Persons" (AOP) consisting of two members namely Shri M.J. Siwani and Shri H.J. Siwani, has held that under the similar grounds raised in the appeal against the order for AY 2013-14 in the case of the same assessee, the CIT(A) in ITA No. 342/CIT(A)- 11/BNG/2015-16 dated 24.11.2020 had adjudicated these grounds in para- 11 to para-22 in favour of the assessee. Further, the above issue travelled up to ITAT & Hon'ble ITAT also for AY 2013-14 in para 4 at page 4 held that as the assessment was made treating the assessee as firm and not as AOP & therefore no prejudice is caused to the assessee. Considering the above, the ld. CIT(A) allowed this grounds of appeal raised by the assessee.
6.1 Further, with regard to the claim of deduction u/s 80IB(10) of the Act, the ld. CIT(A) partly allowed this ground of the assessee by completely relying on the order of this Tribunal in ITA No.25/Bang/2021 dated 04.12.2023 of the same assessee for the A.Y.2013-14 and held that the assessee is eligible for deduction u/s 80IB(10) of the Act & the disallowance of deduction u/s 80IB is limited on a pro rata basis in respect of the two ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 7 of 16 flats allocated to Shri Ramzan Ali Khan/RAK constructions (Flat 1403 & flat 1503) and in respect of the two flats allocated to KAP(I) Projections and Construction Pvt. Ltd (Flat 610 & 409).
7. Aggrieved by the order of the Ld.CIT(A)-11, Bangalore, both assessee as well as Revenue have filed the appeal before this Tribunal. The assessee has also filed two paper books along with the case laws compilation in support of its case.
8. Before us, the Ld.AR of the assessee vehemently submitted that the ld. CIT(A) completely relied on the order of the ITAT in ITA No.25/Bang/2021 dated 04.12.2023 in the assessee's own case for immediately preceding assessment year 2013-14 & held that the assessee is eligible for deduction u/s 80IB(10) of the Act & the disallowance of deduction u/s 80IB is limited on a pro rata basis. Now the assessee is challenging the disallowance of the deduction u/s 80IB(10) of the Act on a pro-rata basis in respect of the two flats allocated to Shri Ramzan Ali Khan/RAK constructions (Flat 1403 & flat 1503) and in respect of the two flats allocated to KAP(I) Projections and Construction Pvt. Ltd (Flat 610 & 409).
8.1 The ld. AR of the assessee also submitted that the Hon'ble Jurisdictional High Court of Karnataka in the case of CIT vs. Mandavi Builders, Mangalore reported in (2020) 275 Taxmann 575 held that clauses
(e) and (f) to section 80IB(10) of the Act have been inserted by Finance Act (No.2), 2009, w.e.f. 01-04-2010 and apply in respect of transactions entered on or after 01.04.2010 which is evident from circular No. 5/2010 dated 03.06.2010 & therefore the provisions cannot be applied to transactions entered into by the assessee prior to introduction of clauses (e) and (f) to section 80IB of the Act. The Hon'ble ITAT had also taken the same view in the case of the assessee for the Asst. year 2013-14. Further, the ld. AR also drew our attention to the Order of this Tribunal in Miscellaneous application in MP No.7/Bang/2024 dated 19.04.2024 passed in the case of the assessee for the Asst. year 2013-14. Lastly, the Ld.AR of the assessee submitted that ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 8 of 16 the revenue had also filed an appeal under section 260A of the Act against the said order of the Tribunal which is also disposed of by the Hon'ble Karnataka High Court at Bangalore in Income Tax Appeal No.166 of 2024 dated 30.09.2024 on the ground of low tax effect.
9. Ld. DR on the other hand vehemently submitted that the Ld.CIT(A) has erred in allowing the deduction under section 80IB(10) of the Act without appreciating that the assessee had violated Clause (e) and Clause (f) of section 80IB(10) of the Act by allotting more than one residential unit in the housing project to any person not being an individual. Further, Ld. DR vehemently argued that the explanatory Circular No. 5/2010 dated 03.06.2010 of Finance (No.2) Act, 2009 mandates that the conditions containing in clause(a) to (f) of section 80IB(10) of the Act are cumulative, as is evident use of semi colon "(;)" after each clause up to clause (d) and use of "and" between clauses (e) and (f), and therefore to be eligible for deduction under section 80IB(10) of the Act, all the conditions specified in clause (a) to
(f) would have to be met in full. Further the ld. DR submitted that the principle of proportionality is not applicable to clauses (e) & (f) of Section 80IB(10) of the Act.
10. We have heard the rival submissions and perused the material available on record. With regard to the AO treating the status of the assessee as "Association of Persons" (AOP) consisting of two members namely Shri M.J. Siwani and Shri H.J. Siwani & not the Partnership firm as claimed by the assessee, we take a note of the fact that the Ld.CIT(A) has observed that the similar grounds raised in the appeal against the order for AY 2013-14 in the case of the same assessee, the CIT(A) in ITA No. 342/CIT(A)- 11/BNG/2015-16 dated 24.11.2020 had adjudicated these grounds in para- 11 to para-22 in favour of the assessee. Further, the above issue travelled up to ITAT & the ITAT also for AY 2013-14 in ITA No.25/Bang/2021 dated 04.12.2023 in para- 4 at page 4 has held that as the assessment was made treating the assessee as firm and not as AOP & therefore no prejudice is ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 9 of 16 caused to the assessee. Considering the above, the ld. CIT(A) allowed this grounds of appeal raised by the assessee. We take a note of the fact that the revenue has not challenged this ground of the status of the assessee before us.
10.1 Now with regard to the disallowance of the claim of deduction 80IB(10) of the Act amounting to Rs.2,46,11,965/- we take a note of the fact that the AO had disallowed the claim of deduction mainly on three grounds as below-
i) The entire Project is not completed within the time allowed.
ii) The Built up area of residential units exceeding 1500 sqft.
iii) More than one apartment sold to same buyer.
Now with regard to the first ground for disallowance of deduction u/s 80IB(10) of the Act i.e. non completion of the entire project within the time allowed, we take a note of the fact that the ld. CIT(A) has not dealt with all these grounds individually instead following the decision of the ITAT in the assessee's own case in ITA No.25/Bang/2021 dated 04.12.2023 for the assessment year 2013-14 has held that the assessee is eligible foe deduction u/s 80IB(10) and the disallowance of deduction u/s 80IB is limited on a pro-rata basis in respect of the two flats allocated to Shri Ramzan Ali Khan/RAK constructions (Flat 1403 & flat 1503) and in respect of the two flats allocated to KAP(I) Projections and Construction Pvt. Ltd (Flat 610 &
409). Thus, the ld. CIT(A) in our opinion had not adjudicated the issue of non completion of the entire project within the time allowed. Even before us, the Revenue has also not raised any specific grounds related to violation of condition with regard to the non-completion of the entire project within the time allowed. However, on going through the order of this Tribunal in ITA No.25/Bang/2021 dated 04.12.2023 in the assessee's own case & in respect of the same project of the assessee for the Asst. year 2013-14 (placed at pages 24-43 of the case laws compilation), we take a note of the fact that this Tribunal by relying on the judgment passed by the Hon'ble ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 10 of 16 Jurisdictional High Court in the case of PCIT v. Majestic Developers reported in [2020] 122 taxman.com 123 (Karnataka), had held as follows: -
"9. In the above matter, it was found that the certificate issued by the registered Architect certifying the building fit for use. As the certificate has been issued in terms of Section 310 of KMC r.w. Rule 5.6.1 of the Building Byelaws and sent to the Commissioner, Bengaluru Mahanagara Palika for issuance of occupancy certificate. This was required to be taken into consideration in his proper perspective by the Ld. AO and therefore, the Revenue ought not to have insisted for production of certificate issued by any further localities for getting benefit under Section 80IB(10) of the Act. Once, the assessee has furnished certificate of Registered Architect before the Ld. AO establishing the project being completed within stipulated period deduction under Section 80IB of the Act cannot be denied.
10 So far as the rejection of claim for not having completion certificate of the entire project, we need to consider the beneficial legislation of enactment particularly the provision of granting deduction under 80IB(10) to the assessee. Initially approval was given on 20.12.2005 and the completion certificate issued by the registered architect namely "shop design" finally on 23.03.2011 and once the assessee has been found to have completed the project within the prescribed date i.e. 31.03.2011, the assessee is to be found eligible and deduction accordingly be given. In factboth the authorities below has not considered this particular aspect of the matter in its proper perspective. More so, the assessee has never claimed the deduction u/s. 80IB(10) so far as the building no. 2 is concerned. Thus taking into consideration the entire aspect of the matter and the ratio laid down in the above matter, we find no reason to deviate from this stand therein particularly taking into consideration the completion certificate issued by the registered architect we find disallowance of deduction claimed by the assessee is perverse and therefore quashed."
We respectfully following the decision of the coordinate bench of this Tribunal in ITA No.25/Bang/2021 dated 04.12.2023 in the assessee's own case for the Asst. year 2013-14 & more particularly in respect of the same project of the assessee held that taking into consideration the completion certificate issued by the registered architect, the disallowance of deduction on this ground is perverse.
10.2 Now with regard to other two grounds for the disallowance of the claim of deduction by the AO i.e. the Built up area of residential units exceeding ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 11 of 16 1500 sq.ft. as well as more than one apartment sold to same buyer, both the assessee as well as the revenue have challenged these grounds in their respective appeals. The assessee in its grounds of appeal is contending that the provisions of section 80IB(10) (e) & (f) inserted by the Finance (No.2) Act, 2009 w.e.f. 01/04/2010 are prospective in nature w.e.f. 01.04.2010 and consequently the assessee is entitled to full relief as claimed by the assessee & not on pro-rata basis. The Revenue on the other hand contended that the principle of proportionality is not applicable to clauses (e) & (f) of Section 80IB(10) of the Act & the conditions containing in clauses (a) to (f) of section 80IB(10) of the Act are cumulative & accordingly prayed to disallow the claim of deduction in entirety. The ld. CIT(A) on the other hand completely relied on the order of this Tribunal in ITA No.25/Bang/2021 dated 04.12.2023 of the same assessee for the A.Y.2013-14 and held that the assessee is eligible for deduction u/s 80IB(10) of the Act & the disallowance of deduction u/s 80IB is limited on a pro rata basis in respect of the two flats allocated to Shri Ramzan Ali Khan/RAK constructions (Flat 1403 & flat 1503) and in respect of the two flats allocated to KAP(I) Projections and Construction Pvt. Ltd (Flat 610 & 409).
10.3 Now first we take up the contention of the AO that the two flats of the project bearing No. 1403 & 1503 was allotted to Mr. Ramzan Ali Khan. Both these flats were combined internally by way of stair case running inside the apartments. The two flats bearing no. 1503 and 1403 each of them measuring 1717 Sq. ft. totaling 3434 Sq. ft was designed in the model of a 'duplex flat'. The entire consideration for both the flats had been paid by way of adjustment of retention money receivable from the assessee. The AO held that as the assessee had sold flats exceeding 1500 Sq. ft. to single buyer which is a clear violation of the condition as stipulated in section 80IB(10) of the Act. It is an undisputed fact that the agreement with Mr. Ramzan Ali Khan were made on 21/04/2008 in respect of apartment no. 1403 having super built-up area of 1717.07 Sq. ft. (Placed at Pg-172-184 of PB-2). Further, as observed by the AO, in addition to the above the assessee had ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 12 of 16 allotted flat No. 1503 and conveyed the title by way of registration on 18.4.2011. Thus, the two flats bearing no. 1503 and 1403 each of them measuring 1717 Sq. ft. totaling 3434 Sq. ft was designed in the model of a 'duplex flat'.
10.4 We are of the considered opinion that in the present case the assessee firm had not only violated the provisions of clause (f) of section 80IB(10) of the Act inserted by the Finance (No.2) Act, 2009 w.e.f. 01/04/2010 by allotting more than one residential unit in the housing project to an individual but also clause (c) of section 80IB(10) of the Act by exceeding the maximum built-up area of each residential unit by one thousand five hundred Sq. ft. With due respect, the Tribunal in ITA No.25/Bang/2021 dated 04.12.2023 of the same assessee for the A.Y.2013-14 had only considered the provisions of section 80IB(10) (e) & (f) inserted by the Finance (No.2) Act, 2009 w.e.f. 01/04/2010 & did not discuss the violation of clause
(c) of section 80IB(10) of the Act.
10.5 With regard to the violation of clause (f) of section 80IB(10) of the Act, we are of the considered opinion that as the agreement with Mr. Ramzan Ali Khan was entered into prior to 01.04.2010, in view of the judgment of the Hon'ble Karnataka High Court in the case of CIT v. Mandavi Builders, Mangalore (2020) 121 taxmann.com 36 (Karnataka) confirmed by the Hon'ble Supreme Court in the case of CIT v. Mandavi Builders reported in (2021) 133 taxmann.com 112 (SC) which held that the clauses (e) and (f) to section 80IB(10) of the Act have been inserted by Finance Act (No.2), 2009, w.e.f. 01-04-2010 and apply in respect of transactions entered on or after 01.04.2010 which is evident from circular No. 5/2010 dated 03.06.2010 & therefore the provisions cannot be applied to transactions entered into by the assessee prior to introduction of clauses (e) and (f) to section 80IB of the Act and such an amendment to section 80IB(10) of the Act by way of insertion of Clause (e) and Clause (f) vide Finance Act, 2009 is only in ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 13 of 16 prospective in nature and therefore the claim of deduction on this ground should be allowed in full & not on pro-rata basis as contend by the assessee.
10.6 However, as observed by us, the assessee firm had also violated the clause (c) of section 80IB(10) of the Act & therefore we are of the opinion that the assessee is entitled to deduction on proportionate basis in respect of units having built up area of 1500 Sq.ft. or less as the principle of proportionate deduction has been accepted by the Hon'ble Karnataka High Court in CIT v. Brigade Enterprises Ltd. I.T.A. No. 373 OF 2014 Judgment dated 22-10-2020 (Karn-HC), the Hon' ble Karnataka High Court dealt with the following question of law :-
(iv) Whether the tribunal was correct in allowing proportionate deduction under section 80IB(10) in respect of the individual units measuring 1500 sq.ft. or less without appreciating that the decision was contrary to the provision of section 80IB(10) as the section contemplates fulfillment of condition of area of 1500 sq.ft. or less in respect of all units in a project are not in respect of individual units under the same project?
The Hon'ble Karnataka High Court answered the question of law in favour of the Assessee by following its own order in the case of the assessee by this court vide Orders, dated 22-9-2020 passed in CIT v. Brigade Enterprises Ltd., in I.T.A.Nos.54/2013 and 55/2013 (Karn-HC). The following were the relevant observations of the Hon ble High Court in respect of proportionate deduction under section 80IB(1) of the Act in the judgment dated 22-9-2020 :-
"B. Requirement Of Residential Unit Having A Maximum Built Up Area Of 1,500 Square Feet:
16. The assessing officer has held that 32% of the units of the assessee are having an area of more than 1,500 square feet. It was further held that though the Income Tax Appellate Tribunal has recorded a finding in favour of the assessee that assessee is entitled to benefit of principle of proportionality for the assessment years 2004-05 and 2005-06, yet the aforesaid finding has not attained finality and the same is pending before this court in an appeal. The Commissioner (Appeals) by placing reliance on the order passed by the Tribunal in respect of previous assessment year viz., 2004-05 has held that the assessee is entitled to benefit of deduction under section 80IB(10) of the Act proportionately in respect of residential units having built up area less than or equal to 1,500 square feet. The aforesaid finding has been affirmed by the Tribunal vide Order, dated 7-9-2012 by placing reliance in case of the assessee in respect of previous assessment year i.e., 2005-06 as well as 2006-07. It is pertinent to note that the aforesaid view has been affirmed by a bench of this court in respect of another project of the ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 14 of 16 assessee for the assessment year 2004-05 vide Order, dated 29-2-2012 passed in I.T.A.No.763/2009. It is also pertinent to note that similar view was taken in favour of the assessee in respect of assessment year 2005-06 and 2006-07 and the SLP against the order passed by this court has been dismissed vide Orders, dated 04-1-2013 and 14-3-
2014 respectively. The aforesaid issue has therefore, attained finality. It is also pertinent to mention here that clause(c) of section 80IB(10) of the Act, the Legislature has used the expression 'residential unit' and has specifically omitted to use the expression 'each'. It is also pertinent to mention here that in several Sections like Section 5A, 6(5), 10(10), 35D(1), 44AD(3), 80HHB, 80I(5), 153C, 153D, 158 DA, 293A(3), 296 and 298(4) of the Act as well as under Rules 2BA, 20(4), 22(3), 62(3), 74(2), 74(6) and 104 of the Rules, the Legislature has expressly used the word 'each'. It is well settled rule of statutory interpretation that when a situation has been expressed differently, the legislation must be taken to have been tended to express a different intention. [SEE: 'CIT v. East West Import And Export (P) Ltd' 1989 (1) SCC 760 (SC)]. On plain reading of clause (c) of section 80IB(10) of the Act, it is evident that the same does not exclude the principle of proportionality in any manner. Therefore, we hold that the Commissioner (Appeals) as well as the Tribunal have rightly found that the assessee has complied with the requirement contained in clause (c) of section 80IB(10) of the Act.
In view of the aforesaid decision of the Hon ble Karnataka High Court, we are of the view that there is no merit in the stand taken by the revenue in this appeal."
Respectfully, following the above decision of the jurisdictional High Court, we have no hesitation to allow the claim of deduction on a proportionate basis in respect of units having built up area of 1500 Sq.ft. or less.
10.7 Now with regard to the issue of more than one apartment sold to same buyer, the AO in the present case found that two flats in HM Symphony bearing No. 409 & 610 in concert tower were initially allotted in favour of M/s KAP (India) Projects and Constructions Pvt. Ltd. The assessee firm claims that the flats allotted to M/s KAP (India) Projects and Constructions Pvt. Ltd. were subsequently cancelled and sold to Mrs. Zubaida Aboobacker and Mr. Satan Kumar vide sale deeds dated 12.11.2009 and 06.02.2010. The AO held that since the initial agreement to sale for final two flats in HM Symphony bearing No. 409 & 610 in concert tower was executed between the assessee firm & M/s KAP (India) Projects and Constructions Pvt. Ltd against the payment due amounting to Rs. 1.58 crores & subsequently M/s KAP (India) Projects and Constructions Pvt. Ltd sold these flats to Mrs. Zubaida Aboobacker at Rs. 50 lakhs and Mr. Satan Kumar at Rs.40,50,000/-, therefore it can be concluded that more than one flat has ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 15 of 16 been allotted to one entity in violation of the clause (e) of section 80IB(10) of the Act.
10.8 As discussed above, we are of the considered opinion that as the agreement with M/s KAP (India) Projects and Constructions Pvt. Ltd as well as with Mrs. Zubaida Aboobacker and Mr. Satan Kumar were entered into prior to 01.04.2010, in view of the judgment of the Hon'ble Karnataka High Court in the case of CIT v. Mandavi Builders, Mangalore (2020) 121 taxmann.com 36 (Karnataka) confirmed by the Hon'ble Supreme Court in the case of CIT v. Mandavi Builders reported in (2021) 133 taxmann.com 112 (SC) which held that the clauses (e) and (f) to section 80IB(10) of the Act have been inserted by Finance Act (No.2), 2009, w.e.f. 01-04-2010 and apply in respect of transactions entered on or after 01.04.2010 which is evident from circular No. 5/2010 dated 03.06.2010 & therefore the provisions cannot be applied to transactions entered into by the assessee prior to introduction of clauses (e) and (f) to section 80IB of the Act and such an amendment to section 80IB(10) of the Act by way of insertion of Clause (e) and Clause (f) vide Finance Act, 2009 is only in prospective in nature and therefore the claim of deduction on this ground should be allowed in full & not on pro-rata basis.
10.9 Further, during the course of hearing, the ld. AR of the assessee did not press the ground no. 6 & accordingly the same is dismissed as not pressed. Further, the ground no. 7 is consequential & need not be adjudicated separately. The Ground No.1, 8 & 9 are general in nature & need no adjudication.
11. In the result, the appeal filed by the assessee is partly allowed & the appeal of the Revenue is dismissed.
ITA No.1526 & 1534/Bang/2024 M/s. Silicon Estates, Bangalore Page 16 of 16 Order pronounced in the open court on 04th August, 2025 Sd/- Sd/-
(Waseem Ahmed) (Keshav Dubey)
Accountant Member Judicial Member
Bangalore,
Dated: 04th August,2025.
Giridhar/SPS
Copy to:
1. The Applicant
2. The Respondent
3. The CIT
4. The DR, ITAT, Bangalore.
5 Guard file
By order
Asst. Registrar,
ITAT, Bangalore.