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2013 (10) TMI 418 - ITAT AHMEDABADDeduction u/s 80IB – Built up area more than prescribed limit i.e. 1500 sq.ft. – Held that:- No merit in the contention of the Revenue - With respect to the construction of the 26th bungalow, the assessee has categorically denied and had replied that it had raised bills for construction of 25 bungalows and not for 26 bungalows. The Revenue had only stated that from the two bills raised by the assessee dated 31.03.2005 and 31.03.2006 of Rs. 50 lacs each mentioned that the fees charge was for 13 bungalows in each bill which meant that the fee was charged for 26 bungalows. Other than this statement, there is not finding by the assessee to establish that the assessee had constructed the 26th bungalow. Further, it is pertinent to note that the DVO's report also do not suggest conclusively that the construction was carried out by the assessee. This is evident from the report of the DVO – Decided in favor of Assessee. Whether construction of commercial space in the project is in excess of 5% of the aggregate built up area – Held that:- Reliance has been placed upon the judgment in the case of Manan Corporation vs. ACIT [2012 (9) TMI 700 - Gujarat High Court] - Amendment of s. 80-B(10) and the insertion of cl. (d) w.e.f. 1 April, 2005 is prospective only and cannot be applied retrospectively; assessee's two housing projects having been approved prior to 31st March, 2005 and the built-up area of commercial use being 5.12 per cent and 3.5 per cent respectively, it was entitled to deduction under s. 80-IB(10) – In the present case, permission of development was granted by AUDA on 16.10.2002 and BU permission was granted on 01.03.2004. The amendment by way of insertion in clause (d) of 80-IB(10) came to effect from 01.04.2005 and it is prospective in nature and therefore, it cannot be applied for housing projects approved prior to 01.04.2005 – Decided in favor of Assessee.
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