9911796707
TMI Blog2012 (8) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... fter claiming deduction u/s 80IB(10) of the Income Tax Act, 1961 (the Act) of the entire amount of Rs. 48,27,70,646/-. During the course of assessment proceedings, the assessee was asked to justify the claim of deduction u/s 80IB(10) of the Act. It was stated by the assessee that (para 8 of the assessment order): i) The assessee is engaged in the business of real estate developers and has constructed the SRA project situated at CTS No. 262A & 262B, Village Anik, Chembur, N.E. Ward, Mumbai. ii) They have entered into the agreement with SRA & MMRDA for Express Highway dtd. 16.9.99. iii) The size of the plot is more than one acre and built up area of each premises is 225 sq. ft. iv) The commercial premises do not exceed 5% of the built up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also placed in the case of Saroj Sales Organisation v. Income Tax Officer in ITA No. 4008/Mum/2007. However, the A.O. did not accept the assessee's submission. He was of the view that after the amendment to section w.e.f. 1-4-2005 those projects are eligible for deduction whose built up area of the shops and other commercial establishments included in the project does not exceed 5% of the aggregate built up area of the housing project or 2000 sq. ft. whichever is less. Since in the case of the assessee as per certificate dtd. 28-3-2008 (supra) the commercial area constructed by the assessee in the project as per the assessee's own admission is more than 2000 sq. ft., hence, in view of the provisions of sub-clause (d) the assessee is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is lower." 5. At the time of hearing, the ld. D.R. submits that for the reasons as mentioned in the assessment order and keeping in view that against the decision of Hon'ble jurisdictional High Court in the case of CIT v. Brahma Associates (2011) 333 ITR 289 (Bom), the Revenue has filed SLP before the Hon'ble Supreme Court, the ld. CIT(A) was not justified in allowing the claim of the assessee and therefore the order passed by the A.O. be restored. 6. On the other hand, the ld. Counsel for the assessee while relying on the order of the ld. CIT(A) submits that the issue is covered in favour of the assessee by the decision of the Tribunal in Haware Constructions Pvt. Ltd. V. ITO in ITA No. 5601/Mum/2009 for A.Y. 2005-06, 686/Mum/2010 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(A) be upheld. 7. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that the facts are not in dispute inasmuch as it is also not in dispute that the project of the assessee was started in 1999. The first phase was completed on 1-10- 2005 including the commercial area. We further find that it is also not in dispute the entire scheme was approved by the Government of Maharashtra and SRA and a tripartite agreement was signed on 10-9-1999. 8. In Haware Constructions Pvt. Ltd. (supra) the Tribunal following the various decisions of the co-ordinate Benches of the Tribunal and the Hon'ble jurisdictional High Court in the case of Brahma Associates observed that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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