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2019 (8) TMI 1408 - AT - Income TaxDisallowance u/s. 80IB(10) - assessee was not entitled for deduction under Sec. 80IB(10) in respect of the residential project under consideration - HELD THAT:- A.R had tried to impress upon us that as the residential “housing project” in the case of the assessee had been approved on 19.07.2003 i.e much prior to the insertion of the definition of “built-up area” in clause (a) to Sec.80IB(14) as was made available on the statute vide the Finance Act, 2004 w.e.f 01.04.2005, therefore, the same would not be applicable in its case. We have perused the afore stated judgment of the Hon’ble Supreme Court in the case of CIT-19, Mumbai Vs. Sarkar Builder [2015 (5) TMI 555 - SUPREME COURT] and find substantial force in the contention advanced by the ld. A.R. Hon‟ble Apex Court had observed that that as the definition of “built-up area” in clause (a) of Sec. 80IB(14) that was made available on the statute, vide the Finance (No. 2) Act, 2004, w.e.f 01.04.2005 was inextricably linked with the approval and construction of the housing project, therefore, an assessee cannot be called upon to comply with the said condition when it was not in contemplation of either the assessee or even the legislature at the time when the housing project was accorded approval by the local authorities. However, at the same time, we also cannot remain oblivious of the fact that the factual position in the case of the assessee before us, as had been canvassed by the ld. A.R, cannot be summarily accepted and would require to be verified. Accordingly, in all fairness, we restore the matter to the file of the A.O who is directed to adjudicate the issue as regards the entitlement of the assessee towards claim of deduction under Sec. 80IB(10) after considering the aforesaid judgment of Sarkar Builders - Appeal of the assessee is allowed for statistical purposes.
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