TMI Blog2016 (5) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... approval of the project. If the project is already approved prior to 1. 4. 2005, any subsequent restriction brought in Sec. 80IB would have to be given perceptive effect - Decided in favour of assessee - I. T. A. 1377/Mum/2014 - - - Dated:- 16-3-2016 - Sh. Rajendra, Accountant Member And Amit Shukla, Judicial Member For the Petitioner : Shri Sandeep Goel For the Respondent : Shri Ravikant Pathak ORDER Per Rajendra, AM Challenging the order of the CIT (A)-37, Mumbai, dated 1/01/2014, the Assessing officer (AO) has filed the present appeal. Effective ground of appeal is about allowing the deduction under section 80 IB of the Act. 2. Assessee-firm, a builder and developer, filed its return of income on 9/10/2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a AY 2004-05 to 2008-09. While completing the assessments, the AO again denied the claim made by the assessee under section 80 IB (10) of the Act for the reason that each building being a separate project was built on a plot of land having area less than 1 acre. In addition to it the AO held that some of the combine residential units exceeded 1000 sq. ft. 3. Aggrieved by the order of the AO, the assessee preferred an appeal before the FAA. After considering the available material on record, he held that identical issue had arisen in the earlier years, that the appeal filed by the Department was dismissed by the Tribunal as well as by the Honorable Bombay High Court. With regard to the issue pertaining to built-up area of some of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue was decided against the AO up to the High Court level, that it could not be said that new set of facts had emerged during the course of search proceedings, that the AO himself had admitted those facts in the remand report. Considering these facts, the FAA decided the first ground of appeal in favour of the assessee. With regard to the area of flats, exceeding 1000 sq. feet, the FAA considered the assessment order and the remand report of the AO along with the rejoinder filed by the assessee. He found that the AO had recorded the statements of the owners of the four flats, that at the time of original assessment proceedings the then AO had not made any disallowance with regard to the area of the some of the flats, that the disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that while deciding the appeal, for the AY. s. 2004 05 to 2008 09 (ITA/4149 4153/Mum/2012 , dated 2/01/2014), the Tribunal has deliberated upon both the issues and has decided them under: 5. We have carefully perused the orders of the lower authorities and the assessment order u/s. 143(3) which travelled upto the High Court. The assessment under consideration are framed u/s. 153A of the Act after search and seizure operation. We find that identical issues were also there in the regular assessment framed u/s. 143(3) of the Act. No new facts or findings which have emerged during the search proceedings in regard to issue of size of plot. However, while completing the assessment u/s. 153A, the AO has not accepted the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 143(3) of the Act. Later, the revenue has also lost its case before Hon ble High Court of Bombay. However, the revenue has not accepted the judicial decision in this regard and preferred an SLP before Hon ble Supreme Court of India which is pending as of now. 6. A perusal of the aforestated remand report show that the AO confirmed that the facts mentioned in the original assessment order as well as in the impugned assessment order u/s. 153A are the same. This being the fact of the matter, it cannot be said that new set of facts have emerged during the course of assessment u/s. 153A. Now that this issue has already attained its finality in favour of the assessee by the decision of the Tribunal in ITA Nos. 4060 4061/M/08 which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. A perusal of the provisions of Sec. 80IB(10) would show that it provides deduction for housing projects which are approved on or after 1. 10. 1998 and upto 31. 3. 2008. It also differentiates the projects approved between 1. 10. 1998 to 31. 3. 2004, 1. 4. 2004 to 31. 5. 2005 and 1. 4. 2005 to 31. 3. 2008. If the section is further analysed, it is based upon the approval of the project. If the project is already approved prior to 1. 4. 2005, any subsequent restriction brought in Sec. 80IB would have to be given perceptive effect. Similar view has taken by the Tribunal in the case of Global Reality Vs ITO 134 ITD 407, Haware Constructions (P) Ltd. 64 DTR 51(Bom), ITO Vs AIR Developers 25 DTR 287 and also by the Hon ble Bombay High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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