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2016 (4) TMI 425

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..... l in that behalf could not be disturbed. Since the AO following the order for preceding assessment years has denied the claim of deduction u/s.80IB(10) and since the CIT(A) following the order of the Tribunal in assessee’s own case for the preceding assessment years have allowed the claim of deduction u/s.80IB(10) and since the jurisdictional High Court has also decided the issue in favour of the assessee in assessee’s own case for A.Y. 2003-04, therefore, in absence of any contrary material brought to our notice the order of the CIT(A) has to be upheld. Merely because the revenue has filed an SLP before the Hon’ble Apex Court, the same cannot be a basis to take a contrary view than the view taken by the jurisdictional High Court in abse .....

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..... ds the limit of commercial built up area brought in by an amendment to section 80IB(10) of the Act. He noted that the assessment travelled through appellate stages and the assessee has been allowed relief. The Hon ble Bombay High Court was also pleased to held that the assessee was eligible for deduction u/s.80IB(10) of the I.T. Act though it was not an exclusive housing project. The AO further noted that the Hon ble High Court was pleased to order that the limit on the commercial built up area brought in by an amendment to section 80IB(10) of the Act cannot be held to have retrospective effect. The AO confronted the assessee regarding the allowability of the claim. It was contended by the assessee that in view of the decision of the Hon bl .....

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..... 17.57 sq.ft. and one residential unit admeasuring 1370 sq.ft. the AO held that the assessee is not entitled to deduction u/s.80IB(10) of the I.T. Act. 5. In appeal the Ld.CIT(A) following the decision of the Tribunal in assessee s own case for A.Y. 2003-04, 2004-05, 2005-06 and 2006-07 allowed the claim of the assessee. 6. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us with the following grounds : 1. The learned Commissioner of Income tax (Appeals) erred in holding the assessee as eligible for deduction u/s. 801 B(1 0) when the assessee's project had been approved as a 'residentialcum- commercial project' and not as a 'housing project' per se; and also when more than 20% of the entir .....

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..... in coming to the above conclusion on the incorrect premise that estoppels can be invoked against the Government in exercise of its legislative powers? 7. The Ld. Counsel for the assessee at the outset filed a copy of the order of the jurisdictional High Court in assessee s own case, i.e. Brahma Associates Vs. CIT reported in 333 ITR 289 and submitted that for A.Y. 2003-04 the revenue has challenged the order of the Tribunal and the Hon ble High Court has dismissed the appeal filed by the revenue. The assessee has derived profit from the same project for the impugned assessment year. Therefore, the assessee is entitled to claim deduction u/s.80IB(10) of the I.T. Act. Since the matter has been decided in favour of the assessee by the juri .....

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..... ppellate Tribunal was justified in holding that the projects wherein the commercial area is more than 10 per cent of the project and the profits from the residential dwelling units in that project can be worked out separately then, subject to fulfilling other conditions, deduction on the profits relatable to the residential part of the project would be eligible for deduction u/s.80IB(10)? 4. Whether on the facts and in the circumstances of the case and in law, the Income-tax Appellate Tribunal was justified in holding that the limit on commercial use of the built up area as prescribed by clause (d) of section 80IB(10) has not retrospective application and it applies only with effect from the assessment year 2005-06? 10. We find after .....

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