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2020 (9) TMI 1137 - KARNATAKA HIGH COURTEligibility for deduction u/s 80IB - housing projects - satisfaction of the requirements as laid down in clauses (a) to (d) of sub-Section (1) of Section 80IB - individual units measuring less than 1500 sq.ft. - object of Section 80IB(10) of the Act is to provide 100% deduction of the profits derived by an undertaking from developing and building housing projects - HELD THAT:- In the instant case, the housing project of the assessee was approved in respect of an area of 48,939 square feet, which is more than one acre i.e., 43,500 square feet, therefore, we hold that the assessee has complied with requirement contained in Clause (b) of Section 80IB(10). 32% of the units of the assessee are having an area of more than 1,500 square feet - 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: 'COMMISSIONER OF INCOME TAX, NEW DELHI VS. EAST WEST IMPORT AND EXPORT (P) LTD' [1989 (2) TMI 1 - SUPREME COURT]. 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 CIT (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). Requirement of commercial area in a project not exceeding 5 % of build up area - The Supreme Court in RADHASOAMI SATSANG Vs. COMMISSIONER OF INCOME-TAX' [1991 (11) TMI 2 - SUPREME COURT] has held that even though principles of res judicata do not apply to income tax proceedings, but where a fundamental aspect permeating through the different Assessment Years has been found as the fact one way or the other and the parties have allowed the position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in subsequent year. For this reason also, in the facts of the case, a different view cannot be taken. It is held that the assessee has complied with the requirements contained in clauses (a), (b), (c) & (d) of Section 80IB(10) of the Act. The substantial questions of law framed by a bench of this court are answered against the revenue and in favour of the assessee.
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