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TMI Blog2012 (4) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... own ignoring material facts available on record." 02 "On the facts and circumstances of the case as well as in law, the Ld. CIT(A) erred in directing Assessing Officer to grant deduction u/s. 801B (10) of the Income Tax Act, 1961 without considering the facts that area of some of the flats exceeds 1500 square feet Section 8OlB(10) (10)(c) disentitling the assessee to claim deduction u/s. 801B (10). 03 "On the facts and circumstances of the case as well as in law, the Ld. CIT(A) erred in law to allow deduction u/s.801B(10) ignoring the fact that only one combined project was approved which was conveniently divided later on, into two separate projects that is Residential Project and Commercial Project to be run by the assessee and MIs. R. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the project is not disputed as it is less than 1500 sq.ft. However, the assessee has received the consideration in some of the flats for more than 1500 sq.ft area which includes built up area plus the common area and may be called as 'super built up area'. It is pertinent to note that when the project has been sanctioned and the completion certificate has been issued as per the sanctioned plant which is for the residential flats having less than 1500 sq.ft, then even if the assessee has received the consideration for more than 1500 sq.ft in some of the flats, which would not constitute violation of conditions as prescribed u/s 80IB(10)( c) because the built up area is less than 1500 sq.ft. The CIT(A) has given the details of the flats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before us. Therefore, when each of the flats have been constructed as per the building plan duly approved by the local authorities and also completed as per the completion certificate, wherein the built up area of each flats has been shown less than 1500 sq.ft, then receiving the consideration by the assessee for more than 1500 aq.ft showing as saleable area of the flats would not enhance the built up area of the flats/residential units as per the sanctioned plant and completion certificate. 4.4 In view of the above discussion as well as in the facts and circumstances of the case, we do not find any error or illegality in the order of the Cit(A), qua this issue. 5 Ground no.3 is regarding disallowance of deduction u/s 80IB(10) on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (10) as exits at the relevant point of time, the subsequent amendment w.e.f 1.4.2005 cannot be applied with retrospective effect. When the amendment itself takes effect from 1.4.2005, then it cannot be presumed to be applied from retrospective effect. Our view has been supported by the decision of the Tribunal in the case of Saroj Sales Organisation vs ITO reported in 115 TTJ 485(Mum). 6.1 Even otherwise, the law on the point is very clear that unless provided in the statute, the law is always presumed to be prospective in nature. The CIT(A) has followed the decision of the Special Bench of the Tribunal in the case of Commissioner of Income-tax v. Brahma Associates, which has been upheld by the Hon'ble Jurisdictional High Court in 333 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Tribunal in allowing section 80-IB(10) deduction to a part of the project, we do not disturb the findings of the Tribunal in that behalf. (e) Clause (d) inserted to section 80-IB(10) with effect from April 1, 2005 is prospective and not retrospective and hence cannot be applied for the period prior to April 1, 2005." 6.2 Therefore, as per the pre-mended provisions of sec 80IB(10), once the project has been approved by the local authorities, then in the absence of any such condition of commercial area in the provisions of sec. 80IB(10), deduction cannot be denied on this point. Hence, we do find any reason to interfere with the impugned order of the CIT(A), qua this issue. 7 Now, we turn to ground no.1 regarding disallo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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