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2022 (7) TMI 31 - AT - Income TaxDeduction u/s 80IB - housing project undertaken and constructed by it despite the fact that nominal part is commercial area - HELD THAT:- We noted that out of the assessee’s housing project of total built up area of 15,843.85 sq.mt., this commercial built up area constituted only 98.46 sq.mt. which is negligible and marginal. We noted that the clause permitting the housing project to include commercial area up to 5% of the aggregate built up area was brought in by legislature w.e.f. 01.04.2005 and according to us the same can be given effect to the assesse’s case retrospectively As the issue is squarely covered, we find that Hon’ble Supreme Court has gone a step further while interpreting the provisions of section 80IB(10) of the Act, made it clear that the housing project contemplates under this section that includes commercial establishments or shops also. It was further clarified that by way of amendment in the form of Clause (d), an attempt is made to restrict the size of the said shops and/ or commercial establishments. Therefore, Hon’ble Supreme Court, by necessary implication noted that the provision has to be read prospectively and not retrospectively. Accordingly, in view of the decision of Hon’ble Supreme Court in the case of Sarkar Builders (2015 (5) TMI 555 - SUPREME COURT] we allow the appeal of the assessee.
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