TMI Blog2015 (5) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... iates [2011 (2) TMI 373 - BOMBAY HIGH COURT] has held that the clause (d) of section 80IB(10) is prospective in nature and would not apply to the housing projects commenced prior to 1.4.2005. In the present case it is seen that the approval of the project was granted on 16th July, 2002 well before introduction of the provisions of clause (d) which came into effect from 1.4.2005. No substantial questions of law. - Decided against revenue. - Income Tax Appeal Nos. 1628, 1629, 1931, 2235, 2469, 354 of 2013 - - - Dated:- 24-4-2015 - S. C. Dharmadhikari And A. K. Menon,JJ. For the Petitioner : Mr Vimal Gupta, Senior Counsel a/w Mr Sham Walve i/b Mr V A Bajpayee For the Respondent : Mr Mihir Naniwadekar ORDER P.C. 1. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any definition of housing project the said expression is required to be construed as well as applied in the manner used and understood on common parlance i.e. as a project consisting of residential houses, and, therefore, was no need whatsoever to resort to any interpretation ? (4) Whether on the facts and circumstances of the case, the Hon'ble Income Tax Appellate Tribunal erred in not appreciating the fact that the word included in clause (d) of Sec.80IB(10) which was introduced w.e.f. 1.4.2005, to hold that commercial user is an integral part of the housing project and, therefore, would have to be so considered even prior to 31.3.2005 giving it a retrospective effect ? (5) Whether on the facts and circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andatory requirement of Pune Municipal Corporation and the City Engineer of Pune Municipal Corporation. It was categorically required to include the aforesaid commercial area. The Assessing Officer also observed that the commercial premises number 1, 2, 3, 4, 5 on the first floor of the building D and commercial premises number 1, 2, 3, 4 of building D-1 had area more than 20 sq. mtr. each and therefore fall in the category of convenience shopping as defined in Rule 123.6(ii) of the Development Control Rules. In the circumstances the assessing officer denied the benefit of section 80IB (10). 4. It is further observed by the assessing officer that on the 7th floor i.e. flt Nos.25 to 28 of building E, E3 and Flat No.38, 39, 40, 41 and 43 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be applied retrospectively. 7. The Tribunal also held that the contention that only a pure housing project was eligible for deduction was also misconceived in view of the judgment of Brahma Associates. The Tribunal held that the project in order qualify for benefit of section 80IB(10) could include residential and commercial premises as approved by the Corporation. Furthermore, there were objections raised by the revenue that built up area of some of the units exceed 1500 sq. ft. and therefore provision of section 80IB(10) would not apply since the said section was inserted with effect from 1st April, 2005. The tribunal once again decided issue in favour of the assessee and directed the Assessing Officer to allow deduction under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s submission apropos assessment year 2005-06 will make no difference since the provisions of section 80IB(14)(a) will not affect the present project having been sanctioned prior to 1.4.2005. In the present case it is seen that the approval of the project was granted on 16th July, 2002 well before introduction of the provisions of clause (d) which came into effect from 1.4.2005. 11. In the circumstances and in the facts of the present appeals these issues are covered by the judgment in M/s. Happy Home Enterprises and M/s. Kanakia Spaces Pvt. Ltd., we do not find that any of the questions proposed give rise to any substantial questions of law. The appeals are accordingly, dismissed. There will be no order as to costs. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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