TMI Blog2007 (1) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... n the return of income filed the assessee claimed that some of building projects undertaken by him were eligible for deduction under the provisions of section 80-IB(10). Accordingly, he claimed deduction aggregating Rs. 6,04,50,350. The learned Assessing Officer found that in those building projects certain area was utilized for construction of shops. He asked the assessee as to why the proportionate profit attributable to the sale of shops should not be disallowed as not covered by exemption under section 80-IB(10) of the Act. The assessee submitted that same issue had arisen in his case for assessment year 2001-02 and the learned CIT(A) held by his order dated 26-8-2004 for that assessment year deleted the similar disallowance made by the Assessing Officer. Further the assessee submitted his arguments on merits. The learned Assessing Officer found that while the CIT(A) s order in the case of the assessee was in favour of the assessee there was another order of CIT(A) in the case of M/s. Saroj Sales Corporation that had been decided against that assessee. Following the reasoning adopted by the learned CIT(A) in the case of M/s. Saroj Sales Corporation and also on the basis that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same had to be accepted blindly without looking into the construction of the project actually done by the builder. The learned CIT(A) noted that the legislation had added cl. (d) to section 80-IB(10) with effect from 1-4-2005. Had there been intention of legislation to allow deduction on shop area also in earlier years the legislature could have amended the section with effect from an earlier date. In this view of the matter two interpretations were not possible. The provisions of section 80-IB(10) as applicable for the assessment year talked of housing project and not the commercial shops. The CIT(A), on such reasoning, upheld the disallowance as made by the Assessing Officer. Still aggrieved, the assessee is in appeal before us. 5. During the course of hearing before us the learned counsel for the assessee argued that the assessee had fulfilled all the conditions as laid down under the provisions applicable to assessment year before us. The housing projects, concerned had been approved before 31-3-2005 by the local authorities concerned. All the undertakings had commenced development and construction of the housing projects on or after 1-10-1998. All the projects were on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate of architect for the built-up area of the housing project of M/s. Unique Star Construction (at pp. 7-15 of the paper book). ( ii )Form No. 10CCB along with copy of local authority s approval dated 25th Jan., 2000 and certificate of architect for the built-up area of the housing project of M/s. Harsh Unique Developers (at pp. 16-24 of the paper book). ( iii )Form No. 10CCB along with copy of local authority s approval dated 19th June, 2000 and certificate of architect for the built-up area of the housing project of M/s. Harsh Deep Construction (at pp. 25-32 of the paper book)." The learned CIT(A) for assessment year 2003-04 seemed to have a wrong notion that the local authority concerned gave approval only in respect of the residential portions and not the portions of construction relating to amenities and benefits to the residents like the convenient shops , etc. While delivering her appellate judgment for assessment year 2003-04, the CIT(A) remarked at para 10 (p. 6) of her order, as follows, "Perusal of the approval letter by Municipal Corporation revealed that the Municipal Corporation has approved the housing project and not the project with commercial constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 80-IB(10) conferred the exemption, the intention behind the provision was most important. 10. We have carefully considered the rival submissions. There is a suggestion in the order of the learned CIT(A), that the construction has not been done as per approved plan of Municipal Corporation. She, however, does not elaborate and relies upon any material for those observations. During the course of hearing before us, the learned counsel categorically stated that there is no violation of building plans. Both the learned Assessing Officer as well as the learned CIT(A) have founded their orders on the premise that the expression "house" means a residential accommodation only. Under the head "Chapter IV-C" "Income from house property" charge of tax is in respect of house property that may be residential house, a shop, an office building, factory premises, godown, warehouse etc. 11. Apart from the provisions of "Chapter IV-C" of the Act that place the charge of tax on building premises for all dues under the head "Income from house property", in the case of Tata Engg. Locomotive Co. Ltd. v. Gram Panchayat AIR [1976] SC 2463 the Hon ble Supreme Court have observed : "T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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