9911796707
TMI Blog2012 (8) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Rs. 2.23 crores. Thereafter, the AO issued reopening notice and reopened the assessment u/s 147 of the Act. Vide order dated 14.12.2007, AO withdrew the deduction u/s 80-IB(10) (supra). The reason as stated was that assessee's project in question was residential cum commercial which did not qualify for deduction u/s 80-IB (10). 3. In assessee's appeal against the reassessment order, the Ld. CIT (A) also confirmed the AO's findings vide order dated 23.1.2009. 4. On the other side, since the Ld. CIT (A) had upheld the reassessment order (supra), penalty proceedings commenced against the assessee. In response to the show cause notice, it submitted only those facts which had already been filed during assessment proceedings. The AO vide p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d AR before us has opposed the Revenue's arguments by submitting that in quantum proceedings, the disallowance in question has already been deleted by ld Coordinate Bench of Mumbai ITAT. He has also submitted that the Hon'ble jurisdictional High Court has also upheld the deletion of disallowance in question vide order dated 29.11.2011 (copies of the orders of ITAT and Hon'ble High Court have also been produced). In the light thereof, he has prayed that the penalty in question does not have any legs to stand. 8. We have heard both the learned representatives in detail. Admittedly, in the reopening proceedings, the AO made disallowance of the claim already allowed u/s 80-IB of the Act. It has come on record that in quantum proceedings, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stretch of imagination can an open area be considered as proportionately relatable to residential as well as commercial area. As the size of the plot in this case is more than one acre, condition u/s 80-IB(10)(b) also stands fully satisfied. Insofar as the reliance of the Kolkata Bench order in Bengal Abuja Housing Development Ltd. (supra) is concerned, we are again unable to find any finding given by the Tribunal which comes in the way of granting deduction to the assessee in consonance with the judgment of the Hon'ble jurisdictional High Court. The learned Departmental Representative has referred to certain submissions made before the Kolkata Bench but was unable to point out the relevant parts of the Tribunal order wherein such submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these cannot be taken as a tool for putting the assessee in a better position than in which it was before such proceedings. We, therefore, direct to allow deduction u/s 80-IB (1) for Rs. 2.23 crores and odd, which has been disallowed in the present proceedings." 9. We also find it from the paper book that the Hon'ble Bombay High Court has also upheld the ld Coordinate Bench order on 29.11.2011 by observing as under:- "Counsel for the appellant states that the questions sought to be raised in the appeal are covered against the revenue by the decision of this Court in the case of CIT vs. Brahma Associates reported in (2011) 333 ITR 289 (Bom). In this view of the matter, the appeal is dismissed with no order as to costs." 10. In the light o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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