TMI Blog2012 (11) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... tion u/s 80IB(10) in respect of other phases of the property known as ‘Golden Nest’ & also that the housing project of ‘Golden Nest’ phase VII and X are approved by the local authority on 25-1-2001 and phase XI and XIA on 14-1-2004 i.e prior to 1-4-2005 inserted under Clause (d) to section 80IB(10) w.e.f. 1-4-2005 which is prospective in nature and not retrospective - As the percentage of commercial area in phase VII, X and combined phase XI and XIA of the property known as ‘Golden Nest’ are at 6.59%, 4.99%, and 5.48% respectively was not controverted by the Revenue even at this stage - in favour of assessee. On the issue of area of row houses exceeding 1000 sq. ft. the CIT(A) held that the deduction u/s 80IB(10) has to be allowed on pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilt up area of shops in phase VII is 8327 sq. ft. and in the phase X it is 7768 sq. ft. A reference was made to the local authority i.e. Mira Bhayander Municipal Corporation by the A.O. to clarify as to whether the project of the assessee was a housing project and in response to this reference, the local authority stated that the project is a Group Housing . In view of the existence of the above commercial area in the phase VII and phase X, the deduction claimed u/s 80IB(10) for the A.Y. 2005-06 was disallowed by the A.O. During the year under consideration i.e A.Y. 2006-07, the remaining flats of the above two phases i.e. phase- VII and X have been sold on which deduction was claimed by the assessee, however, the A.O. disallowed the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be disallowed as the project of the assessee consists of commercial area which is in excess of the limit prescribed u/s 80IB(10)(d) of the Act. In response to the above, the assessee submitted that since the subject housing project was approved by the local authority prior to 1-4-2005 i.e. on 14-1-2004, the rigors of restriction of area of such development for shops and other commercial establishments upto 5% as introduced with effect from 1-4-2005 would not apply to the subject project, particularly so, as section 80IB(10) of the Act, as it stood then, did not envisage such capping and secondly as per the clarification of CBDT, the approval of the local authority of a project as housing project would be considered adequate for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed u/s 80IB(10)(d) (wrongly mentioned as 80IB(10)(a) in respect of phase XI A and, therefore, he disallowed the claim of deduction u/s 80IB (10) in respect of the above phases of the property known as Golden Nest . 2. On appeal, the ld. CIT(A) following The decision of the Special Bench of the Tribunal in the case of Brahma Associates vs. JCIT (2009) 122 TTJ (Pune)[SB] 433, Vandana properties vs. ACIT (2009) 31 SOT 392 (Mumbai), Saroj Sales organisation vs. ITO, 3 DTR (Mum) 494, Bengal Ambuja Housing Development Ltd. vs. Dy. CIT in ITA No. 1735/Kil/2005 for the A.Y. 2002-03, however, held that the claim of deduction u/s 80IB(10) is allowable to the appellant for the year under consideration i.e A.Y. 2006-07 on the commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 333 ITR 289 (Bom), therefore, the ld. CIT(A) was fully justified in allowing the claim of the assessee. On the issue of row houses, the ld. counsel for the assessee submits that this issue does not arise in the year under consideration as the same has already been considered by the Tribunal in the earlier assessment years and following the order of the Tribunal the A.O. has disallowed the claim u/s 80IB(10) of the Act amounting to Rs 6,70,464/- vide order giving effect to the ITAT order dtd. 28-11-2011 for the A.Y. 2004-05, appearing at page 213 to 216 of the assessee s paper book, therefore, the order passed by the ld. CIT(A) be upheld. 6. We have carefully considered the submissions of the rival parties and perused the material availab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -IB(10) up to March 31, 2005 would be allowable irrespective of the fact that the project is approved as "housing project" or "residential plus commercial". (c) In the absence of any provisions under the Income-tax Act, the Tribunal was not justified in holding that up to March 31, 2005 deduction under section 80-IB(10) would be allowable to projects approved by the local authority having residential building with commercial user up to 10 per cent. of the total built-up area of the plot. (d) Since the deduction under section 80-IB(10) is on the profits derived from the housing projects approved by the local authority as a whole, the Tribunal was not justified in restricting the section 80-IB(10) deduction only to a part of the project. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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