9911796707
TMI Blog2010 (9) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, these appeals were heard together and, as a matter of convenience, are. being disposed of by this consolidated order. 2. The grievances raised by the assessee are as follows : "On the facts and in the circumstances of the case and in law- 1.The learned CIT erred in passing an order under section 2.63 by holding that the assessment made under section 144 read with section 153A was erroneous and prejudicial to the interest of revenue on the ground that under section 80-IB(10) commercial construction is not a part of housing project prior to 1st April, 2005, and hence deduction under section 80-IB(10) on a residential-cum-commercial project was not justified. 2.The learned CIT erred in applying the decision of Mumbai Tribunal in case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on record, it is seen that an area of 8,821.20 sq. ft. constructed in the said project is commercial (shops are as measured by the DVO vide report dated 25th Feb., 2005). Since your project was completed in the assessment year 2004-05, no commercial construction was permissible in a housing project. 3. Further, provisions of commercial construction within a housing project were introduced with effect from 1st April, 2005 and the maximum permissible limit for the said commercial construction is 2,000 sq. ft. Even under this provision the area of commercial construction exceeds the prescribed limit of 2,000 sq. ft. 4. It is thus clear that the order dated 27th Dec., 2006 is erroneous as in it the deduction under section 80-IB has wrong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the assessee's reliance on the CBDT clarification is misplaced as the project of the assessee in fact was a residential-cum-commercial project, and the said clarification did not state that the commercial units will be allowed before 1-4-2005. Learned CIT also rejected assessee's reliance on Saroj Sales Organisation case (supra) on the ground that it did not consider Tribunal's decision in the case of Laukik Developers v. Dy. CIT [2007] 105 ITD 657 (Mum.), and the said decision has been challenged before the Hon'ble High Court. It was in this backdrop that the CIT revised the subject assessment order by concluding as follows : "10. On a perusal of assessment order it is seen that the Assessing Officer has not discussed anything a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of the revenue, is that, according to him, section 80-IB(10), as it stood prior to the amendment with effect from 1-4-2006, did not permit any commercial construction in a housing project. In support of this proposition, learned CIT has relied upon a decision of the Co-ordinate Bench of this Tribunal in the case of Laukik Developers (supra). However, that view of the matter is, at the minimum, not at all free from doubt. As a matter of fact, there has been a cleavage of opinion on this issue so far as Co-ordinate Benches of this Tribunal were concerned. It was for this reason that a Special Bench was constituted in the case of Brahma Associates v. Joint CIT [2009] 119 ITD 255 (Pune)(SB) to resolve these conflicting views of the Co-ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent so far as this Division Bench of the Tribunal is concerned, we cannot approve the stand of the CIT to the effect that merely because there has been an element of commercial construction in the housing project, the assessee is disentitled to deduction under section 80-IB(10) particularly when the component of commercial construction is much less than norms laid down by the Special Bench. When we put this position to the learned Departmental Representative, he fairly stated that the Special Bench decision directly covers the issue but added that the Special Bench decision is not binding on us because it is per incuriam in as much as it does not take into account correct legal position and binding judicial precedents. We do not, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction. Learned CIT's view of the matter may be one of the possible views of the matter, but the view he claims to be wholly erroneous is also a possible view of the matter, and is not only view of the Special Bench of this Tribunal in the case of Brahma Associates (supra) but also a view fairly accepted by the Department itself in proceedings before the Special Bench. The very foundation of learned CITs impugned revision orders is thus devoid of legally sustainable merits. There are no legally sustainable findings by the learned CIT to the effect that the assessment orders in question are erroneous in law and in the absence of such a finding, which is sine qua non for exercise of powers under section 263, we cannot uphold the action of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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