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TMI Blog2016 (5) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... in pursuance of CIT-II's order dated 30.3.2010 passed under section 263, had passed order under section 143(3) r.w.s section 263 on 28.12.2010. This order was challenged before the ld.CIT(A), which has given rise to this appeal. 3. First we take up the ITA No.841/RJT/2010. In this appeal, the grievance of the assessee is that the ld.CIT has erred in taking action under section 263 of the Income Tax Act, and thereby, directing the AO to disallow deduction under section 80IB(10) of the Act amounting to Rs. 29,1,359/-. 4. Brief facts of the case are that the assessee has filed its return of income on 27.10.2005 declaring NIL income. The assessment order was passed under section 143(3) on 20.12.2007, whereby, the AO has determined the taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The total income has been determined by the CIT at Rs. 29,40,399/-. He directed the AO to take total income of the assessee at this figure in place of Rs. 23,040/- taken in the assessment order passed under section 143(3) on 20.12.2007. 5. While impugning the order of the ld.CIT, the ld. counsel for the assessee contended that the issue in dispute is squarely covered in favour of the assessee by the order of the Hon'ble jurisdictional High Court in the case of assessee itself in the Asstt.Year 2004-05. He placed on record copy of the Hon'ble High Court rendered in Tax Appeal No.1115/2011. The ld.DR was unable to controvert the contentions of the ld.counsel for the assessee. 6. On due considerations of the facts and circumstances, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) had considered a very similar issue and rejected the revenue's appeal, making following observations:- "27)From the fact that the deduction under section 80- IB(10) prior to April 1,2005 was allowable on the profits derived from housing projects constructed during the specified period, on a specified size of the plot with residential units of the specified size, it cannot be inferred that the deduction under section 80- IB(10) was allowable to housing projects having residential units only,because, restriction on the size of the residential unit is with a view to make available a large number of affordable houses to the common man and not with a view to deny commercial user in residential buildings. In other words, the restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that though housing projects approved by the local authorities with commercial user to the extent permissible under the Development Control Rules/Regulation were entitled to section 80-IB(10) deduction, with effect from April 1, 2005 such deduction would be subject to the restriction set out in clause (d) of section 80-IB(10). Therefore, the argument of the Revenue that with effect from April 1, 2005 the Legislature for the first time allowed section 80-IB(10) deduction to housing projects having commercial user cannot be accepted." 5) This takes care of questions No. A and D" 7. Apart from above, this issue is now covered by the decision of the Hon'ble Supreme Court rendered in the case of CIT Vs. Sarkar Builders, 57 taxmann.com 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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