TMI Blog2019 (8) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... pon to comply with the said condition when it was not in contemplation of either the assessee or even the legislature at the time when the housing project was accorded approval by the local authorities. However, at the same time, we also cannot remain oblivious of the fact that the factual position in the case of the assessee before us, as had been canvassed by the ld. A.R, cannot be summarily accepted and would require to be verified. Accordingly, in all fairness, we restore the matter to the file of the A.O who is directed to adjudicate the issue as regards the entitlement of the assessee towards claim of deduction under Sec. 80IB(10) after considering the aforesaid judgment of Sarkar Builders - Appeal of the assessee is allowed for statistical purposes. - ITA Nos.4932 & 1457/Mum/2014 - - - Dated:- 28-8-2019 - Shri Shamim Yahya, Accountant Member And Shri Ravish Sood, Judicial Member For the Appellant : Shri G.P. Mehta, A.R For the Respondent : Shri Rajeev Gubgotra, D.R ORDER PER RAVISH SOOD, JM The present appeals filed by the assessee are directed against the order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d if excluded, the built-up area of the combined flats sold by the appellant were within the prescribed limit of 1000 sq.ft. and hence, the entire claim of deduction u/s 80IB(10) of the Act of ₹ 40,50,078/- may be allowed. 4. The learned CIT(A) failed to appreciate that the decisions rendered by the High Court ought to be followed instead of the decision Tribunal, even though rendered in the case of the appellant for earlier years, since the decision was rendered without considering the High Court decisions and hence, the disallowance of deduction u/s. 80IB(10) of the Act of ₹ 40,50,078/- is without any justification and liable to be deleted. 5. The appellant craves leave to add, amend, alter, or delete all or any of the aforesaid grounds of appeal. 2. Briefly stated, the assessee firm which is a builder and developer had e-filed its return of income for A.Y. 2010-11 on 18.09.2010, declaring its total income at ₹ 6,75,933/-. Subsequently, the case of the assessee was selected for scrutiny assessment under Sec. 143(2) of the Act. 3. During the course of the assessment proceedings it was observed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the A.O, who was of the view that the floor level mentioned in Sec. 80IB(14)(a) indicated that any lofts or cooking platforms made in the flats should not be considered while calculating the built-up area . Accordingly, it was observed by the A.O that the assessee had misinterpreted the definition of built-up area as provided in Sec. 80IB(4) of the Act. 5. It was further observed by the A.O that the assessee had misinterpreted the definition of built-up area as envisaged in Sec. 80IB(14)(a), and had wrongly stated that the definition provided by the local authority would be applicable. The A.O did not find favour with the claim of the assessee that the definition of built-up area of the residential unit that was inserted by the Finance (No.2) Act, 2004, w.e.f 01.04.2005, would only be applicable to the projects approved on or after 01.04.2005 and had no application as regards the housing projects approved prior to that date. Accordingly, the claim of the assessee that as its project was approved on 19.07.2003 i.e much prior to the insertion of the definition of built-up area as was made available on the statute vide the Finance (No.2) Act, 2004 w.e.f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t subsequent to the aforesaid order of the Tribunal the Hon ble Supreme Court in the case of CIT-19, Mumbai Vs. Sarkar Builder (2015) 375 ITR 392 (SC) had inter alia observed, that as the definition of built-up area as provided in clause (d) of Sec. 80IB(14) that was made available on the statute vide the Finance (No. 2) Act, 2004, w.e.f 01.04.2005 was inextricably linked with the approval and construction of the housing project, therefore, an assessee cannot be called upon to comply with the said condition when it was not in contemplation of either the assessee or even the legislature at the time when the housing project was accorded approval by the local authorities. In sum and substance, it was averred by the ld. A.R that as the approval in the case of the residential housing project of the assessee was granted by the local authority on 19.07.2003 i.e much prior to the insertion of the definition of built-up area as had been made available on the statute in clause (a) to Sec. 80IB(14), vide the Finance (No.2) Act, 2004 w.e.f 01.04.2005, therefore, the same was not applicable in its case. 8. Per contra, the ld. Departmental Representative (for short D.R& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at that as the definition of built-up area in clause (a) of Sec. 80IB(14) that was made available on the statute, vide the Finance (No. 2) Act, 2004, w.e.f 01.04.2005 was inextricably linked with the approval and construction of the housing project, therefore, an assessee cannot be called upon to comply with the said condition when it was not in contemplation of either the assessee or even the legislature at the time when the housing project was accorded approval by the local authorities. However, at the same time, we also cannot remain oblivious of the fact that the factual position in the case of the assessee before us, as had been canvassed by the ld. A.R, cannot be summarily accepted and would require to be verified. Accordingly, in all fairness, we restore the matter to the file of the A.O who is directed to adjudicate the issue as regards the entitlement of the assessee towards claim of deduction under Sec. 80IB(10) after considering the aforesaid judgment of the Hon ble Supreme Court in the case of CIT-19, Mumbai Vs. Sarkar Builder (20150 375 ITR 392 (SC) . In terms of our aforesaid observations the matter is set aside to the file of the A.O for fresh a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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