TMI Blog2012 (7) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, respectfully following the above rulings no infirmity in the order of CIT(A)- in favour of assessee. - ITA No.2641/Mum/2009 ITA No.3109/Mum/2009 - - - Dated:- 30-5-2012 - SHRI RAJENDRA SINGH, SHRI VIVEK VARMA, JJ. Appellant by : Shri Atik Ahmed Respondent by : Shri M. Subramanium O R D E R PER RAJENDRA SINGH, AM: These appeals by the revenue are directed against different orders dated 10.2.2009 and 10.2.2009 of CIT(A) for the assessment years 2005-06 and 2006-07. The disputes raised in both the appeals is identical. These appeals are being disposed of by single consolidated order for the sale of convenience. Identical dispute raised is regarding disallowance of claim of deduction under section 80IB (10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80IB(10) had been allowed by the Tribunal though there was commercial element involved in the project. The assessee therefore filed revised computation making claim during the assessment proceedings. The AO was however not satisfied by the explanation given. It was observed by him that in view of the amendment of section 80IB(10) by Finance Act 2004, deduction under section 80IB was not allowable in case the built up area of shops and other commercial area included the project exceeded 5% of aggregate built up area or 2000 sq.ft. whichever was less. Admittedly, in case of the assessee the commercial area exceeded 2000 sq.ft. . The AO, therefore, held that deduction under section 80IB was not allowable. Accordingly, he disallow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.1.2008 (AY 2005-06) in which the Tribunal held that the amended provisions would not apply in respect of projects approved prior to 31.3.2005 as in respect of those projects there was no stipulation to the limit on commercial aspects. In the present case, the project had been approved on 18.1.2003, and therefore, provisions of clause (d) of section 80IB(10) were not applicable. CIT(A), therefore held that deduction under section 80IB(10) would be available to the assessee after excluding the profit from sale of commercial area. In assessment year 2005-06, there was no profit from sale of commercial area, and therefore CIT(A) allowed deduction fully. In assessment year 2006-07 CIT(A) noted that sale of commercial area was only 4% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0IB(10) inserted in the Finance Act 2004, and effective from 1.4.2005, deduction under section 80IB(10) cannot be allowed in case built-up area includes commercial area exceeding 5% of the aggregate built-up area or 2000 sq.ft. whichever is lower. Whether the provisions of clause(d) would be applicable in respect of projects approved prior to 1.4.2005 has been a debatable issue. This aspect had been examined by the Mumbai bench of the Tribunal in case of Saroj Sales Corpn.,(115 TTJ 485), in which the Tribunal held that the amended provisions will not apply to the project approved prior to 1.4.2005 as at the time of approval there was no stipulation as to commercial area in the provisions of law. Further, the Hon'ble High Court of Bombay in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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