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2012 (7) TMI 91 - HC - Income TaxWhether the Tribunal was correct in holding that the Assessing Officer had failed to prove that the residential flats exceeded built-up area of 1500 sq. feet each and penthouse flats – Held that:- All the 84 or 83 flats constructed are less than the 1,500 sq. ft., the assessee cannot be denied the benefit and taxed on the ground that it exceeds 1,500 sq. ft. Hence this question of law is answered in favour of the assessee and against the revenue. Whether the definition of "built-up area" as inserted by Finance (No.2) Act of 2004 with effect from 01.04.2005 is prospective or retrospective in nature – Held that:- Object behind enacting this provision, namely to bring in investments and to encourage the infrastructure development of middle income housing projects - Courts have to harmonize these provisions and interpret the same in a manner to achieve the object of the legislature than to distress the said object - definition of built-up area as inserted in sub-Section 14(a) of Section 80-IB by Finance No.2 Act of 2004, which came into effect from 01.04.2005 cannot be held to be retrospective; it applies only to such housing projects, which are approved subsequent to 01.04.2005 - Assessee, in the instant case, is entitled to the benefit of the aforesaid provision and hence the said substantial question of law is answered in favour of the assessee and against the revenue. Whether a housing project includes a commercial complex - if in the housing projects approved by the local authority, a commercial complex is also constructed, does it cease to be a housing project so as to disentitle the assessee from the benefit of Section 80-IB (10) of the Act - by way of amendment, introduction of clause 'd' of sub-Section 10 of Section 80-IB, it is clear that the housing project contemplated under sub-section 10 of Section 80IB includes commercial establishments or shops also – Held that:- By way of an amendment, an attempt is made to retract the size of the shops or commercial establishments - Therefore, necessarily the said provision also has to be read prospectively and not retrospectively. As is clear from the amendment, this provision came into effect only from the day the provision was substituted. Therefore, it cannot be retrospective - In favour of the assessee
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