TMI Blog2013 (2) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... sment years the approval of the authorities and commencement certificate are post 1/10/1998. Similarly, the Tribunal upheld the finding of the CIT(A) in holding that DVO has certified that combined area of the flats was less than 1500 sq. ft. Consequently, Tribunal while upholding the order of the CIT(A) held that Section 80 IB(10) are complied with and the respondent-assessee is entitled to the benefit of Section 80IB of the Act for assessment years 2004-05, 2005-06 and 2006-07. Thus CIT(A) as well as the Tribunal have based their decisions on a concurrent finding of fact & conclusion reached by the Tribunal based on findings of fact cannot be found fault with as the revenue has not been able to show that the impugned order is perverse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22/1/2002 and commencement certificate was also issued. The Bhoomi Poojan of the project was done on 26/1/2002. On 5/4/2002, the respondent received permission for non agricultural use of the land. 3. There was a survey done by revenue some time in 2006 and during the course of survey it appeared from the statement of one of the Director of the respondent-assessee that the built up area of the flats was more than 1500 sq. ft. However, the Assessing Officer referred the matter to DVO who certified that the area of the flats was less than 1500 sq. ft. 4. On the aforesaid facts, the Assessing officer by assessment order for all the three years by three separate orders held that the respondent-assessee was not entitled to benefit of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter in appeal to the Tribunal for all the three assessment years. The Tribunal by its order dated 30/4/2012 for assessment years 2004- 05, 2005-06 and 2006-07 dismissed the revenue's appeal. The Tribunal held that the amendment to Section 80IB of the Act by which an explanation was brought into Section 80IB (10) of the Act was effective only from 1/4/2005. Consequently, so far as assessment year 2004-05 is concerned the claim cannot be denied as the explanation to section 80IB (10) would come into force only from 1/4/205. Thus the claim for the benefit of Section 80IB (10) of the Act cannot be denied for assessment year 2004- 05 as the Explanation to Section 80IB of the Act would come into force from assessment year 2004-05 onwards. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) and the Tribunal have rendered a finding of fact that the area of the flat was less than 1500 sq.ft. on examination by the DVO. Consequently, the Tribunal concluded that the project was approved post October, 1998 and the area of the flat as constructed in the building was less than 1500 sq. ft. One more fact which would be have to be borne in mind is that the user of the land from agriculture to non agriculture use was received by the respondent assessee only on 8/4/2002. 9. The conclusion reached by the Tribunal based on findings of fact cannot be found fault with as the revenue has not been able to show that the impugned order is perverse warranting an interference by this Court. In view of the above, the questions of law as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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