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2016 (4) TMI 425 - ITAT PUNE

2016 (4) TMI 425 - ITAT PUNE - TMI - Claim deduction u/s.80IB(10) - Held that:- Clause (d) inserted to section 80IB(10) with effect from April 1, 2005, is prospective and not retrospective and hence could not be applied for the period prior to April 1, 2005. Since deduction u/s.80IB(10) were on the profits derived from the housing projects approved by the local authority as a whole, the Tribunal was not justified in restricting the section 80IB(10) deduction only to a part of the project. Howeve .....

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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 absence of any contrary material - Decided in favour of assessee - IT .....

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of assessment proceedings the AO noted that the assessee is engaged in the business of real estate and a project named Brahma Estate was floated at Kondhwa, Khurd, Pune during the F.Y. 2000-01. The assessee claimed the said project to be an eligible project u/s.80IB(10) of the I.T. Act. The commencement certificate for the said project was obtained from the local authority on 06-10- 2010. The assessee declared profits from the project for the first time in A.Y.2003-04 and claimed deduction u/s. .....

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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. .....

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he explanation given by the assessee. He noted that although the jurisdictional High Court has decided the issue in favour of the assessee, however, the revenue has preferred further appeal before the Hon ble Apex Court by way of Special Leave Petition. According to the AO, as per the provisions of section 80IB(10) of the Act, the assessee for getting the benefit has to fulfil the following conditions : a) Housing project has to be approved by local authority. b) Project to be completed before 3 .....

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ing the financial year relevant to A.Y. 2010-11 has exclusively derived by the sale of 8 commercial units admeasuring 5217.57 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 .....

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on under section 80IB(10) as applicable prior to 1St April, 2005 is admissible in the case of a 'housing project' comprising residential housing unit and commercial establishments? 3. The learned Commissioner of Income Tax (Appeals) erred in failing to appreciate the letter and spirit of section 80IB(10) prior to its substitution by the Finance (No.2) Act, 2004 w.e.f. 01.04.2005 which had avowedly been brought into the Statue to promote housing as a priority area and which (the un-amende .....

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n Steamship Line, 20 ITR 52 and Karimatharuvi Tea Estate Ltd., 60 ITR 262 ? 5. The learned Commissioner of Income Tax (Appeals) erred in holding that the amended provisions u/s. 80IB(10)(d) would not be applicable w.e.f. 01.04.2005 as the commencement certificate was dated 06.1 0.2000? 6. The learned Commissioner of Income Tax (Appeals) erred 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. T .....

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0) of the I.T. Act. Since the matter has been decided in favour of the assessee by the jurisdictional High Court in assessee s own case, therefore, the grounds raised by the revenue has to be dismissed. 8. The Ld. Departmental Representative fairly conceded that the issue stands decided against the revenue by the decision of the jurisdictional High Court. However, the Department has not accepted the decision and SLP has filed by the revenue before the Hon ble Apex Court. He accordingly submitted .....

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holding that the deduction u/s.80IB(10), as applicable prior to April 1, 2005 is admissible to a housing project comprising of residential housing units and commercial establishments ? 2. Whether on the facts and in the circumstances of the case and in law, the Income-tax Appellate Tribunal was justified in holding that a project having commercial area up to 10 per cent of the project is eligible for deduction on the entire profits of the project u/s.80IB(10) up to April 1 2005? 3. Whether on th .....

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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 considering various decisions the Hon ble High Court in assessee s own case has decided the issue against the revenue. It was held that clause (d) inserted to section 80IB(10) with ef .....

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