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2015 (5) TMI 193 - SUPREME COURT

2015 (5) TMI 193 - SUPREME COURT - TMI - Deduction under Section 80IB(10) as applicable prior to 01.04.2005 - whether project which is cleared as "residential plus commercial" project cannot be treated as housing project and therefore, this direction is contrary to the provisions of Section 80(I)(B)(10)? - Held that:- Projects which are approved by the local authorities as housing projects with commercial element therein.

Reading the direction in its entirety and particularly the firs .....

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ty in the residential units is permitted. - Special Leave to Appeal (C) No(s). 22450/2011 - Dated:- 28-4-2015 - K Sikri And Rohinton Fali Nariman JJ. For the Appellant : MR. B. V. Balaram Das For the Respondent : MR. Nikhil Nayyara Judgement SLP (C)No.22450/2011, SLP (C)No. 20534/2013, SLP (C) CC No.12785/2013, SLP (C)CC No.11544/2013, SLP (C) No.21661/2013, SLP (C) No.21662/2013, SLP (C) No.21663/2013, SLP (C) No.24961/2013, SLP (C) No.31709/2013, SLP (C) No.34888/2013, SLP (C) No.10678/2015, S .....

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2011, SLP(C) No. 28169/2011, SLP(C) No. 33053/2011, SLP(C) No. 23109/2012, SLP(C) No. 31167/2012, SLP(C) No. 28756-28757/2011, SLP(C) No. 21298/2012, SLP(C) No. 27671/2011, SLP(C) No. 27673/2011, SLP(C) No. 27249/2011, SLP(C) No. 31278/2011, SLP(C) No. 26807/2011, SLP(C) No. 28168/2011, SLP(C) No. 34137/2011, SLP(C) No. 26010/2011, SLP(C) No. 26011/2011, SLP(C) No. 27675/2012, SLP(C) No. 5766/2015, SLP(C) No. 5767/2015, SLP(C) No. 5770/2015, SLP(C) No. 10827/2015, SLP(C) No. 12107/2015, SLP(C) N .....

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(C) No. 3127/2012, SLP(C) No. 3793/2012, S.L.P.(C)...CC No. 7562-7563/2012, SLP(C) No. 16627/2012, SLP(C) No. 20034/2012, SLP(C) No. 20035/2012, SLP(C) No. 21299/2012, SLP(C) No. 16490/2013, SLP(C) No. 16491/2013, SLP(C) No. 16492-16493/2013, SLP(C) No. 18023/2013, SLP(C) No. 18024/2013, SLP(C) No. 18025/2013, SLP(C) No. 18026/2013,SLP(C) No. 21665/2013, SLP(C) No. 28449/2013, SLP(C) No. 32691/2013, SLP(C) No. 32693/2013, SLP(C) No. 2766/2014, SLP(C) No.5699/2014, SLP(C) No.33433/2014, SLP(C) No .....

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All these special leave petitions are filed by the Revenue/ Department of Income tax against the judgments rendered by various High Courts deciding identical issue which pertains to the deduction under Section 80IB(10) of the Income Tax Act, as applicable prior to 01.04.2005. We may mention at the outset that all the High Courts have taken identical view in all these cases holding that the deduction under the aforesaid provision would be admissible to a "housing project". All the asse .....

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rity, shall be hundred per cent of the profits derived in any previous year relevant to any assessment year from such housing project if, - (a) such undertaking has commenced or commences development and construction of the housing project on or after the 1st day of October, 1998; (b) the project is on the size of a plot of land which has a minimum area of one acre; and (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within .....

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in the impugned judgment. The High Court interpreted the expression "housing project" by giving grammatical meaning thereto as housing project is not defined under the Income Tax Act insofar as the aforesaid provision is concerned. Since sub-section (10) of Section 80IB very categorically mentioned that such a project which is undertaken as housing project is approved by a local authority, once the project is approved by the local authority it is to be treated as the housing project. .....

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by the High Court are as follows: - "30. In the result, the questions raised in the appeal are answered thus: - a) Upto 31/3/2005 (subject to fulfilling other conditions), deduction under Section 80IB(10) is allowable to housing projects approved by the local authority having residential units with commercial user to the extent permitted under DC Rules/ Regulations framed by the respective local authority. b) In such a case, where the commercial user permitted by the local authority is with .....

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lding with commercial user upto 10% of the total built-up area of the plot. d) Since deductions under Section 80IB(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 Section 80IB(10) deduction only to a part of the project. However, in the present case, since the assessee has accepted the decision of the Tribunal in allowing Section 80IB(10) deduction to a part of the project, we do not disturb the fin .....

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