TMI Blog2011 (5) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... ffective ground raised by the Revenue reads as under:- Whether on the facts in the circumstances of the case and in the law, the Hon ble CIT(A)-II, Thane in allowing the benefit of deduction u/s 80IB(10) claimed by the assessee in respect of project Ganesh Plaza II. 2.1 Facts of the case, in brief, are that the assessee is engaged in the business of construction of residential cum commercial complex under the proprietary firm Shri Ganesh Builders. The assessee is claimed to be following work in progress method. During the impugned assessment year, the assessee claimed deduction u/s 80IB(10) for an amount of Rs. 86,87,698/- on account of income from the project Ganesh Plaza II. 2.2 The A.O. noted that during the survey u/s 133 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be constructed for commercial or business purpose as provided in clause 3 in the agreement which was subsequently reduced to 10% as per Notification issued by Urban Development Department, Maharashtra Regional and Town Planning Act, 1966. Reliance was placed on the decision of Special Bench of ITAT in the case of Brahma Associates vs. JCIT (ITA No. 4008/Mum/2007 order dated 6.4.2009. The decision of the tribunal in the case of Saroj Sales Organisation vs. ITO reported in 3 DTR (Mum) was also brought to the notice of the ld. CIT(A). It was argued that the law can prescribe only such conditions which are capable of being fulfilled and complied with. It cannot compel a person to do a thing which he cannot do or perform. 2.4 Based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the last para of the order at page 19 by expressing the opinion that the deduction on profit from commercial areas to the extent of prescription as per clause (d) of Section 80IB(10) of the IT Act, 1961 may be allowed as against the decision which was followed by CIT(A)-II, Thane wherein as per clause V of the decision finding was given wherein Commercial built up area does not exceed 10% of the total area are eligible for the benefit as such projects are predominantly residential in nature Appellant s case is covered by this finding being having identical facts. 5. The ld. Counsel for the assessee, at the outset, filed a copy of the decision of the Tribunal in the case of Hiranandani Akruti JV vs. DCIT in ITA No. 5416/Mum/09 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the arguments as advanced by the ld. Counsel for the assessee. 4. We have considered the rival submission made by both the sides, perused the orders of A.O. and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the A.O. denied the benefit of deduction u/s 80IB(10) of the Act on the ground that the commercial areas in the project is 3399 sq. ft. which is well above 2000 sq. ft. or 5% of the project which is one of the pre-conditions for claiming deduction u/s 80IB (10) of the Act. We find the condition of 2000 sq.ft. or 5% of the project was brought to the statute by the Finance (No.2) Act, 2004 w.e.f. 1.4.2005. Prior to this insertion, there was no suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ousing project. He follows percentage completion method of accounting and offers profits in AY 02-03 to 04-05, claims exemption u/s.80-IB(10) and is allowed exemption. On the same project in AY 05-06, the Assessee would not get the benefit of Sec.80- Hiranandani Akruti JV 20 IB(10). We therefore find no grounds to take a view different from the one taken by the co-ordinate bench of the Tribunal in the case of Saroj Sales Organization (Supra). 27. We are of the view that we are not supplying any words to the statute but are only holding that the law as it existed in the A.Y.04-05 when the Assessee submitted its proposal for slum rehabilitation and the permission for carrying out the development was accorded on 17.11.2003 and when the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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