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Assistant Commissioner Of Income Tax Versus M/s Nirmal Lifestyle India Pvt Ltd

2015 (6) TMI 940 - ITAT MUMBAI

Proportionate deduction of 80IB(10) - flats which are having built up area of below 1000 sq. ft. - whether conditions of 80IB(10) have not been fulfilled for the whole project/building and cannot be approved in piecemeal for some flats in the building? - CIT(A) allowed claim - Held that:- There are series of decisions of this Tribunal, wherein, the Tribunal has held that in case of certain dwelling units exceeds the area prescribed u/s 80-IB(10) then the assessee would be eligible for deduction .....

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cided in favour of assessee. - ITA No.2957/Mum/2011, ITA No.2958/Mum/2011 - Dated:- 25-3-2015 - Vijay Pal Rao And N K Billaiya JJ. For the Appellant : Shri Surinder Jeet Singh For the Respondent : Shri Bhupendra Shah ORDER Per: Vijay Pal Rao: These two appeals by the revenue are directed against two separate orders of CIT(A) both dated 24.01.2011 for the A.Y. 2007-08 and 2008-09 respectively. The revenue has raised common grounds in these appeals.The grounds raised for A.Y. 2007-08 are as under: .....

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2. The assessee firm engaged in the business of construction and development of residential and commercial properties and claimed deduction u/s 80IB(10). During the assessment proceedings u/s 143(3) r.w.s 153A, the Assessing Officer found that the assessee has constructed various housing units having built up area more than 1,000 sq. ft., therefore, the assessee is not entitled for deduction u/s 80-IB(10). Accordingly, the Assessing Officer disallowed the claim of deduction u/s 80-IB(10). 3. On .....

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, he has relied upon the following decision of co-ordinate benches of this Tribunal in the case of ACIT Vs. Ekta Sankalp Developers dated 12.09.2014 in ITA No. 3316 and 3318 of Mumbai 2012 and submitted that the Tribunal has observed that there is no scope of any proportionate allowance of deduction u/s 80-IB(10) as held by the Hon'ble Jurisdictional High Court in the case of CIT Vs. Brahma Associates 333 ITR 289 5. On the other hand, the Ld. Authorized Representative has submitted that an i .....

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58 dismissed by Cal HC. 6. Having considered the rival submissions as well as relevant material on record, we note that there are series of decisions of this Tribunal, wherein, the Tribunal has held that in case of certain dwelling units exceeds the area prescribed u/s 80-IB(10) then the assessee would be eligible for deduction proportionately to the extent of the dwelling unit having the constructed area less than the limit provided in the section. We further note that even in case of ACIT Vs. .....

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hich stands not defined under the Act, clarified that the housing project as contemplated is only a housing project as approved by the local authority, to which (approval) the provision refers to, so that the same, where not violative of any of the conditions listed in the provision, as with regard to the extent of commercial user (which condition did not exist in the provision as it stood at the relevant time), could not be imposed by judicial diktat. Further, the project, as approved, is a sin .....

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roved by the local authority and not to a part of the project. If the conditions set out in section 80- IB(10) are satisfied, then deduction is allowable on the entire project approved by the local authority and there is no question of allowing deduction to the part of the project. [emphasis ours] That the same is rendered upon examining the provision in a different context would be of no moment, which though prevailed with the tribunal in the case of Ekta Housing (P.) Ltd. (supra) (copy on reco .....

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ssociates (supra), are also thus apparently in conflict therewith in-as-much as the same opine in favour of deduction, which extends to the entire profit of the project, with reference to the profit attributable to the residential units satisfying the condition of section 80-IB(10)(c), i.e., to a part of the project. The proposition is even otherwise inconsistent with the fundamental principle that any deduction is subject to eligibility, i.e., satisfaction of each of the conditions precedent. F .....

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truction, was found to contain a condition with reference to the residential unit comprising the housing project. The condition, by necessary implication, applies to all the residential units of the housing project. The converse, however, cannot be said to hold, so that only such housing project, all the residential units comprising which satisfy the condition of section 80-IB(10)(c), is an eligible project. The word project , clearly mentioned in each of the other clauses, is conspicuous by its .....

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intention was found expressed in its plain language; it being trite that there is no equity about tax and there is no room for intendment, so that one has to look fairly at the language used, even as exhorted time and again by the apex court. Also, fiscal statutes are to be strictly interpreted, and so are the exemption provisions. It is only once an entity or income, which is the subject matter of exemption, is found, on such construction, to be within the ambit of the provision, that a liberal .....

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toward promoting the growth of affordable housing in the country, the construction enables the same, while at the same time operating to exclude the extension of the incentive to housing that is not covered or targeted by the provision, as sought to be included by the ld. AR. Again, it is trite law that the benefit of any ambiguity, if any, in the language of the provision, so that two reasonable views are permissible, is to go to the tax payer. We may clarify that our decision, even as sought .....

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