TMI Blog2014 (7) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench - the Assessee is an individual - after obtaining the development permission, the property was developed by constructing 97 flats - The details have been provided - the Assessee claimed the deduction by urging that it had completed the project and full occupation certificate was issued by the Municipal Corporation of Greater Mumbai as early as in 2004 - That being the case, the amended definition would not apply since that is relevant for the Assessment Year 2005-2006. - Decision in the case of M/s. Tinnwala Industries [2014 (7) TMI 90 - BOMBAY HIGH COURT] followed. The profits booked by the Assessee is on sale of the flats as that would be the only manner in which he would derive profit and later on book them - he cannot take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee for A. Y. 2005-2006 onwards the provision of Section 80IB(10) subsection (14) in respect of the definition of built up area (including the measurements of projections and balconies) introduced with effect from 01.04.2005 would be applicable? 3. Mr. Ahuja is very fair in urging that one of the questions raised for this Court's consideration and termed as substantial question of law stands concluded against the Revenue by a Division Bench order passed by this Court in Income Tax Appeal No. 3315 of 2010 between the Commissioner of Income Tax15, Mumbai v/s M/s. Tinnwala Industries decided on 13th April 2012. 4. Mr. Ahuja submits that Section 80 (IB) of the Income Tax Act and particularly the deduction which is the subject m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentical case was dealt with by the Division Bench in the case of The Commissioner of Income Tax15, Mumbai v/s M/s. Tinnwala Industries (supra), where the Division Bench expressly held that this definition which has been brought on the statute book with effect from 1st April 2005, would not apply to such projects which are completed prior to 1st April 2005. In that, the balcony area would not therefore be includable. Insofar as computation of 'built up area' of the flat is concerned, the amendment having been brought in and introduced on 1st April 2005, then, in any housing project approved by the local authority prior to this date, balcony area cannot be included but will have to be excluded, is the conclusion reached by the Divisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench order. Firstly, we do not find any such argument being raised on behalf of the Revenue either before the Commissioner or before the Tribunal. This is not a pure question of law and which we can decide with reference to some chart. This is a mixed issue and ought to have been squarely raised for consideration. The only argument raised was that, the definition of term 'built up area' is not prospective but retrospective. That argument has been rejected by the Division Bench and equally by the Tribunal. In this case we do not find that any other issue was raised. Hence the Revenue is not justified in now urging that he must go by booking of the profits and which were on actual sale. The sale having taken place during the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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