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TMI Blog2018 (7) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... m & on account of late payment of employees contribution to PF; respectively in assessment order dated 28.03.2014, involving proceedings u/s 143 (3) of the Income Tax Act, 1961 (Act). Heard both the parties. Case file perused. 2. We come to the first issue of section 14A r.w.r. 8D disallowance of Rs. 11,33,631/- made in the course of assessment as deleted in the lower appellate proceedings. Suffice to say, it emerges at the outset that the assessee has not derived any exempt income in the impugned assessment year. Hon'ble jurisdictional high court's decision in CIT vs M/s Ashika Global Securities Ltd. In ITAT 100 of 2014, GA 2122 of 2014 decided on 11.06.2018 upholds tribunal's similar order deleting identical disallowance in absence of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It is therefore, pertinent to reproduce the text of these sections as follows : The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2008 by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from such housing project if,- (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (e) not more than one residential unit in the housing project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad clearly violated conditions of those two clauses. On the other hand, Ld. AR has brought to my notice that the subject in the case of Everest Home Construction (India) Pvt. Ltd was in respect of clause (d) of section 80IB(10), whereas, in the case of Emgeen Holding Pvt. Ltd. vs. DCIT (2011) 12 Taxman 468 (Mum), the Hon'ble Mumbai Tribunal.-has held that that the provisions contained in clause (e) and (f) of section 80IB(10) are prospective in nature and not retrospective. The operative part of the judgment is extracted below: "We find that the deduction under section 80-IB(10) has been declined by the Assessing Officer on the ground that size of the residential unit was in excess of 1,000 sq. Ft. which, in turn, proceeds on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is concerned, as long as residential unit has less than specified area, is as per the duly approved plans and is capable of being used for residential purposes on stand-alone basis, deduction under section 80-1B(J0) cannot be declined in respect of the same merely because the end user, by buying more than one such unit in the name of family members, has merged these residential units into a larger residential unit of a size which is in excess of specified size. That precisely is the case before us. While on the subject, it is useful to take note of legislative amendment by virtue of which the legislature put certain restrictions on sale of residential units to certain family members of a person who has been sold a residential unit in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be for removal of doubt. On the contrary, this amendment shows that no such eligibility conditions could be read into pre-amendment legal position. [Para 8 ] In view of these discussions, ----- the deduction under section 80-1B(10) ought to have been allowed to the assessee entirely, [Para 9J" 4.4. It clearly emerges from the decision of the Hon'ble Mumbai Tribunal in the case of Emgeen Holdings Pvt, Ltd. (supra) that - (i) Clauses (e) and (t) of section 80-IB(10) inserted in Finance Act, 2009, have only prospective effect from 01/04/2010 and not retrospective. The law is always presumed to be prospective in nature unless provided in the statute, Therefore, the adjacent residential units, each less than 1,500 sq. ft. in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee be allotted more than one residential flats to more than one person; not being individuals. We find no merit in Revenue's instant argument. There is no dispute that the assessee's concerned allotments of the residential units took place upto 06.08.2008 only whereas the statutory amendment in the Act i.e. section IB(10) (e) and (f) came into operation from 01.04.2010. A coordinate bench (supra) has already concluded the said amendment to be having prospective effect only. 6. Learned counsel representing assessee quotes hon'ble apex court's decision in CIT vs M/s Sarkar Builders [2015] 375 ITR 392 (SC) settling the law about the above statutory amendment to be prospective effect. Learned Departmental Representative fails to rebut th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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