TMI Blog2011 (6) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... r is less, which contravenes the stipulation of Sec.80IB(10)(d) for instant assessment disentitling the assessee from the claim of deduction u/s.80IB(10). 2. On the facts and in the circumstances of the case as well in law, the Learned CIT(A) has erred in holding that the assessee is entitled to deduction u/s.80IB(10) of ₹ 2,89,99,020/- ignoring the facts that the ITAT Special Bench, Pune (2009) 30 SOT 155 in the case of M/s Brahma Associates has categorically held that the provisions of clause (d) of sec.80IB(1)), inserted by Finance Act, 2004 wef 01-04-2005 has no retrospective effect and it applies only wef 01-04-2004 relevant to A.Y 2005-06 and onwards, which has binding effect in this case. 3. On the facts and in the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s.80IB(2)(i) and deduction could not be allowed. 3. On appeal, Ld. CIT(A) allowed the deduction. 4. Now the Revenue is in appeal before us and has raised three issues by way of above four grounds which we have already produced. 5. At the outset Ld. Counsel of the assessee submitted that all these issues raised by the Revenue are squarely covered against the Revenue by various decisions relied on by the Ld. CIT(A) and in this regard he carried us through various paras of the appellate order. 6. He submitted that the first issue is regarding construction of commercial area in excess of 5% is squarely covered by the decision of the Hon'ble Bombay High Court in the case of CIT vs. Bramha Associates [333 ITR 289] wherein it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case as well as by following the decision of the Tribunal in the case of Parth Corporation vs. ITO [supra], wherein it was clearly held that sec.80IB(2)(i) is not applicable for claiming deduction u/s.80IB(10). 9. We have considered the rival submissions carefully. We find that as far as the first objection raised by the Revenue regarding excess commercial area is concerned, the Hon'ble Bombay High Court in the case of CIT vs. Brahma Associates [supra] while reversing the decision of the Special Bench of the Tribunal in the case of Brahma Associates vs. JCIT 315 ITR (AT) 268 (PN) held as under: Held that clause (d) inserted in section 80IB[10] with effect from April 1, 2005, is prospective and not retrospective and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea that can be built in a housing project. Let us assume that the Assessee complies with all the conditions for allowing relief u/s.80-IB (10) i.e., it is approved as a housing project by the local authority but the area of commercial space as approved by the local authority is more than 2000 sq.ft. The Assessee commences the project but is able to complete only in the previous year relevant to AY 05-06. As per the change in law from AY 05-06 with regard to the area of commercial space in a housing project the Assessee would loose his eligibility to claim deduction. In such cases there is definitely grave hardship to the Assessee. The interpretation sought to be canvassed by the learned D.R. will also lead to absurd situation. Let us assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded on 17.11.2003 and when the Assessee commenced development is to be applied. Therefore, following the above decision, we reject this objection also. 11. As far as the third objection is concerned, we find that the Ld. CIT(A) adjudicated this issue vide para 5.4 which is as under: 5.4 Thus, the reliance placed by Ld. AO is over ruled by the Spl. Bench of Pune ITAT. Further, in paragraph 6.3 Ld. AO has mentioned that project was approved on 19.07.2003. but AOP was formed on 26.04,2004 and in para 6.4 it is argued by the OC that Shri Harshad P. Doshi is holding the development right and not the AOP and he has sold out the properties in A.Y 2005-06 and further it is mentioned by the Ld. AO hat Appellant has been formed by way of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner of the land development rights and also it is being contributed capital in the form of land development rights by Mr. Doshi. Further, it is not pertinent to mention that section 80IB(2)(i) is not at all applicable to the deduction under section 80IB (10) since itself is a separate code and independent of the provisions of section8OlB (2). This fact has been considered and upheld in the case of Parth Corporation V5. ITO, ITAT Mumbai Bench C reported at (23 SOT 420) and there is no necessity for such Appellant to be owner of the land or have approval in their name. According to this judgment the requirement for claiming deduction u/s.80IB (10) is that assessee is an undertaking must develop and build housing project, irrespective of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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