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2016 (5) TMI 144 - ITAT MUMBAI

2016 (5) TMI 144 - ITAT MUMBAI - TMI - Deduction under section 80 IB - effect of amendment - prospectively - Held that:- The prohibition against sale of more than one flat in a housing project to members of same family has been inserted specifically with effect from 1. 4. 2010 and the same cannot be treated with retrospective effect.

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 up .....

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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, declaring total income at rupees nil, after claiming deduction of ₹ .....

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was not entitled to claim deduction as per the provisions of the Act. In the earlier round of assessment, in the regular assessment under section143 (3) the AO had denied the claim made by the assessee under section 80 IB (10). At that time it was held that three buildings each considered a separate project and therefore the plot area for each project was less than 1 acre. The assessee, contended that three buildings constituted a single project. However, the AO made the disallowance. In the app .....

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ied 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 f .....

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eparately, that the builder had handed over separate flats to the flat purchaser, that afterwards the purchaser combine the two flights, that the builder was not responsible for the same, that purchase of two adjoining flats by one family itself was not restricted under section 80 IB(10), that the restriction on sale of two flats to an individual/same family members was introduced with effect from 1/04/2010, that the FAA had, while deciding the appeals for the AY 2004-05 to 2008 - 09 had decided .....

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e fact mentioned in the original assessment order as well as in the impugned assessment order u/s. 153A were identical, that in the original assessment proceedings the 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 reg .....

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here were two separate agreements/sale deeds for the same, that the society charges and municipal taxes payable by the owners of the residential units was separately charged for both the residential units and not on a combine basis as would have been the case if the combine flats had been prepared and sold as a single residential unit. The assessee had argued that the said units had been sold to purchasers as separate units and as per the agreements buyers were prohibited from making any alterat .....

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re feet, that the order of the AO could not be sustained. Finally he allowed the appeal filed by the assessee. 4. During the course of hearing before us the Departmental Representative (DR) left the issue to the discretion of the bench. The Authorised Representative (AR) stated that the Tribunal and the Honorable Bombay High Court had dismissed the appeal filed by the assessee for the earlier years. 5. We find that while deciding the appeal, for the AY. s. 2004 - 05 to 2008 - 09 (ITA/4149 - 4153 .....

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ing 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 the Tribunal by stating that new facts emerged which were not available at the time of earlier proceedings u/s. 143(3) of the Act. During the appellate proceedings, the Ld. CIT(A) requested the AO to furnish what are those new facts which have emerged after the date of the order of the Tribunal . The AO filed a remand report dt. 27. 2. 2012. The .....

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and the respective orders passed u/s. 143(3) r. w. s. 153A of the I. T. Act, 1961. On perusal of the details filed and verified from the records, it is observed that in both the assessment orders the respective A. O s have pointed out almost same set of facts as far as non compliance of conditions laid down u/s. 80IB(10(b) of the I. T. Act is concerned. It is also a matter of fact that the assessee firm has got relief on this count from the CIT(A) and Hon ble ITAT Mumbai has further upheld the d .....

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s 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 has been confirmed by the Hon ble Jurisdictional High Court in I. T. X. A. L. 1452 with 1453/2010. Respec .....

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approval to the project and if a local authority has approved buildings plan with residential unit of less than 1000 Sq ft and granted completion certificate as such deduction u/s. 80IB(10) has to be allowed. The assessee further contended that purchase of two adjoining flats by the same buyers or within one family by itself was not restricted and no adverse conclusions could be drawn from them. It was further submitted that even if the allegation of the Ld. AO that the two flats were sold as o .....

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