2009 (11) TMI 944

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..... This is an appeal filed by the Assessee against the order of the ld.CIT(Appeals)-II, Baroda, dated 17.12.2007 in Appeal No.CAB/II-738/06-07. 2.The sole issue involved in the grounds of appeal taken by the assessee is that whether the Learned Commissioner of Income Tax(Appeals) was justified in disallowing the claim of deduction under section 80IB in respect of project of construction of a prop .....

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..... e invited our attention to the recent decision of the Special Bench of the Tribunal in the case of Brahma Associates Vs. Joint Commissioner of Income Tax (OSD) [2009] 119 ITD 255 (Pune)(SB), wherein the issue of commercial cum residential housing project was considered and it was held that in certain circumstances, either the entire profit or proportionate profit of the project relating to residen .....

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..... has held as under: "130. To sum up, the conclusions arrived at by this Special Bench are as follows : (a) The deduction under s. 80-IB(10), as applicable prior to 1st April, 2005, subject to and in the light of the observations made in the preceding paras, is admissible in case of a ' housing project ' comprising residential housing units and commercial establishments. In case these projects .....

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..... construction of residential dwelling units can be worked out on standalone basis, deduction under s. 80-IB(10) will be available in respect of residential segment of the project. (b) The deduction under s. 80-IB(10) is available in respect of profits of housing project as a whole, and, as such, it is not relevant as to what is the portion of profits which can be said to be attributable to resi .....

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..... nder appeal is not available on record, in our considered view, it shall be just and fair to restore the issue back to the file of the Learned Assessing Officer for adjudication of the same afresh in accordance with the law and in the light of the decision of the Special Bench of the Tribunal in the aforesaid discussed case after allowing reasonable opportunity of hearing to the assessee. We order .....

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