9911796707
TMI Blog2012 (7) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... of claim of deduction under section 80IB (10) of the income tax Act, 1961(the Act). 2. Facts in brief are that the assessee who was engaged in the business of builders and developers, had claimed deduction of Rs.1,06,60,890/- for assessment year 2005-06 and Rs.69,60,100/- for assessment year 2006-07 under section 80IB(10) of the Act. The AO during the assessment proceedings noted that the project undertaken by the assessee was not fully residential and also included commercial area. The AO also noted that in assessment year 2004-05, the assessee had originally made claim of deduction under section 80 IB(10) but during assessment proceedings the same was withdrawn vide letter dated 31.10.2006. Similarly assessee had also withdrawn claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not allowable. Accordingly, he disallowed the claim of deduction in both the years under consideration. 3. The assessee disputed the decision of AO and submitted before CIT(A) that withdrawing the claim by way of filing of letter during assessment proceedings was not a bar on making the claim during the hearing of the case after ascertaining the correct position of law. There was no estopple against the provisions of law. It was also submitted that the project had started much before the amendment and therefore, the amended provisions were not applicable in case of the assessee. CIT(A) agreed with the submissions made by the assessee that there was no estopple against the provisions of law and assessee could always make claim during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale of commercial area was only 4% of the total area and therefore, he reduced the claim of deduction by 4%. Aggrieved by said decision, revenue is in appeal before the Tribunal. 4. Before us, the ld. DR appearing for the revenue assailed the order of CIT(A). It was argued that deduction under section 80IB(10) of the Act should not be allowed as there was violation of provisions of clause(d) of section 80IB(10). He, strongly supported the orders of AO. The ld. AR on the other hand argued that the provisions of clause(d) were not applicable as housing scheme had been approved much before 1.4.2005. It was also submitted that in view of the judgment of Hon'ble High Court of Bombay in case of Brahma Associates (333 ITR 289), in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further, the Hon'ble High Court of Bombay in case of Brahma Associates (supra), have held that provisions of clause (d) of Section 80IB(10) would apply prospectively. In the present case, the project had been approved long before the cut-off date of 1.4.2005, and therefore, respectfully following the above rulings we do not see any infirmity in the order of CIT(A). In fact we find that following the judgment of Hon'ble High Court of Bombay in case of Brahma Associates(supra), the assessee could also have claimed deduction in respect of profit from commercial area which has not been allowed by CIT(A). But since assessee is not in appeal, the order of CIT(A) has to be upheld. Accordingly we confirm the orders of CIT(A) and dismiss the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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