TMI Blog2012 (8) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Finance Act, 2005 and the deduction u/s 80IB(10) is on the profits derived from the housing project approved by the local authority as a whole, the A.O. was not justified in disallowing the claim of the assessee and hence we are inclined to uphold the findings of the ld. CIT(A) in allowing the same - Decided in favor of assessee. - ITA No. 4517/Mum/2011 - - - Dated:- 6-6-2012 - SHRI DINESH KUMAR AGARWAL AND SHRI N.K. BILLAIYA JJ. Revenue by : Shri A.C. Tejpal Assessee by : Shri J.P. Bairagra O R D E R PER DINESH KUMAR AGARWAL, J.M. This appeal preferred by the Revenue is directed against the order dated 28-03-2011 passed by the ld. CIT (A) - 36, Mumbai for the A.Y. 2008-09. 2. Briefly stated facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide his letter dtd. 19-10-2010 provided the relevant details as follows: i) Details of total built up area constructed 50414.60 sq.mt. =542461 sq.ft. ii) Area constructed for residential purposes- 49242.63 sq.mt. = 529850 sq.ft. iii) Area constructed for shops 1171.97 sq.mt. = 12610 sq.ft. iv) Area constructed for purposes of Balwadi, School, Hospital, Society Office, Fire brigade, welfare centre etc. 1082.28 sq.mt. = 11645 sq.ft. In view of the fact that the area constructed for shops was much more than 2000 sq.ft. and as such provisions of section 80IB(10)(d) of the Act are attracted. The assessee was again asked to justify its claim. In response it was inter alia submitted by the assessee that project was commenced in the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire scheme was approved by the Government of Maharashtra and SRA and a tripartite agreement signed on 10-9-1999 the appellant is eligible to claim deduction u/s 80IB(10), following the decision of Hon ble Bombay High Court and ITAT cited by the ld. Counsel and accordingly he allowed the claim of the assessee. 4. Being aggrieved by the order of the ld. CIT(A) the Revenue is in appeal before us taking the following ground of appeal:- On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in deleting the addition by way of disallowance u/s 80IB(10) by holding that the law as it stood on the date of commencement of the project would apply instead of the amended provision that was in force in the year the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2005-06, is not applicable to assessee s case. Therefore, the assessee cannot be denied the benefit of deduction u/s.80IB(10) for the commercial area exceeding 5% of the built up area or 2000 sq. ft. whichever is less. In view of the above, he submits that in the case of the assessee the construction was started in the 1999 and the first phase was completed on 1-10-2005 having commercial area of 12610 sq. ft. which is 2.3% of the total built up area constructed i.e. 542461 sq. ft. as per para 8.3 of the assessment order, therefore, the assessee satisfied the condition laid down u/s 80IB (10) of the Act i.e commercial area is not exceeding 5% of the built up area. He further submits that following the above decision, the amendment as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal authority as a whole, the Tribunal was not justified in restricting the section 80-IB(10) deduction only to a part of the project. However, in the present case, since the assessee had accepted the decision of the Tribunal in allowing section 80-IB(10) deduction to a part of the project, the findings of the Tribunal in that behalf could not be disturbed. In the absence of any distinguishing feature brought on record by the Revenue, we respectfully following the decision of the Hon ble jurisdictional High Court and the consistent view of the Tribunal hold that since the project was started in 1999 i.e. prior to the amendment by the Finance Act, 2005 and the deduction u/s 80IB(10) is on the profits derived from the housing project ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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