TMI Blog2020 (9) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... change in the facts which were in existence during the initial assessment year, the claim of exemption cannot be withdrawn. In the present case as discussed above, the fact remains undisputed there was no change in the facts of the case as compared to earlier years. Therefore, in our opinion the decision on the principle of consistency laid down by the Hon ble High Court of Bombay is clearly applicable to the present case. Revenue could not bring on record there was change in the facts of the case in the year under consideration compared to the facts of earlier years in assessee s own case, thereby we hold that the assessee is entitled to claim deduction u/s. 80IB(10) of the Act on pro-rata basis by following the rule of consistency. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur in Pune District. The said housing project is on the plot area of 1.55 hector i.e. 15500 square meter. The sanctioned built up area is 9455.19 square meter and amenity is 2225.58 square meter and submitted the details of construction as on 31-03-2013. According to AO the assessee fulfilled all the conditions except condition of provisions of section 80IB(10)(d) of the Act and held the built up area of shops and commercial establishment is exceeded by 5000 square feet. The AO confronted the same with the assessee. The assessee contended that the amenity building is separate and different from residential housing building. According to AO though the building is different and separate but it is part and parcel of housing project as per sanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shops and other commercial establishments but the same should not exceed 3% of aggregate built-up area of the housing project or 5000 ft. whichever is higher. If the ceiling provided in this clause is violated, the housing project no longer remains an eligible project for the purposes of section 80-IB(10) of the Act. Admittedly, in the instant case the assessee had constructed shops and commercial establishments over an area of 25,942 ft. which is more than the stipulated 5000 ft. mentioned in clause-(d) of Explanation to section 80-IB(l0). Therefore, the assessee has violated the express provisions and thereby disentitled itself from the benefits of this section. 13. As far as the contention of the assessee that deduction should be & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bombay in the case of Commissioner of Income Tax Vs. Paul Brothers reported in 216 ITR 548 and submitted that it was not open to the respondent to deny benefit as sought u/s. 80IB(10) of the Act for subsequent years where a benefit of said deduction was given in the earlier years on satisfaction of certain conditions. He also referred to the order of this Tribunal in the case of M/s. Messung Systems Vs. Asstt. Commissioner of Income Tax in ITA Nos. 1206 to 1210/PN/2013 for A.Ys. 1992-93 to 1994-95, 1996-97 and 199798, order dated 30-09-2016 and submitted that this Tribunal by following the decision of Hon ble High Court of Bombay in the case of Paul Brothers (supra) held that the respondent could not disturb the consistency in granting t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Form No. 10CCB also shows the claim of pro-rata built up area of shops and other commercial establishments at 2225.58 sq. ft. out of 5000 sq. ft. Thus, it is clear the assessee claimed pro-rata deduction in respect of built up area of shops and other commercial establishments for the year under consideration. 9. Coming to the previous A.Y. 2012-13 the Form No. 10CCB is at page No. 44 of the Paper Book, wherein in Column No. 23 the assessee sought pro-rata deduction for built up area of shops and other commercial establishments at 2225.58 sq. Mtr. and there is no denial by the respondent revenue regarding the allowance of pro-rata deduction in respect of shops and other commercial establishments in the A.Y. 2012-13. 10. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars. Therefore, in our opinion the decision on the principle of consistency laid down by the Hon ble High Court of Bombay is clearly applicable to the present case. 13. Regarding the order of this Tribunal as relied by the ld. AR in the case of M/s. Messung Systems (supra) we find the similar facts in the said case, this Tribunal while placing reliance on the decision of Hon ble High Court of Bombay in the case of Paul Brothers (supra) held the assessee is entitled to claim deduction u/s. 80IB(10) of the Act when the deduction of earlier years has not been disturbed any of the authorities. The relevant portion of para 17 is reproduced here-in-below for better understanding : 17. Accordingly, we hold that where the benefit of deductio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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