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TMI Blog2025 (3) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment order dated 12.03.2013. 2. This is the third round of litigation between the parties. Briefly stating, the appellant assessee is a partnership firm and is engaged in the business of promoter, builders and contractors. Assessee filed its return of income for A.Y. 2006-07 on 31.10.2006, declaring total income at Rs. 28,69,487/-. Subsequently, assessee filed revised return of income on 22.10.2007, declaring total income at Rs. Nil after claiming deduction of Rs. 28,69,487/- u/s. 80IB(10) of the Act in respect of the profits derived from the housing project. Learned assessing officer examined assessee's said claim and found that the scheme in respect of which deduction u/s. 80IB(10) was claimed was not notified by the CBDT. In absence of aforesaid notification., assessee's claim for deduction u/s. 80IB(10) of the Act was disallowed and the total income of the assessee was assessed at Rs. 28,69,487/- vide assessment order 30.10.2008. 3. Learned CIT(A), vide order dated 22.01.2010 passed in first appeal, confirmed the disallowance. Appellant assessee preferred an appeal before this Tribunal against the order dated 22.01.2010 passed by learned CIT(A) and produced notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dment to section 80IB(10) (a & b), vide finance (2) Act 2004 relaxed the condition imposed by section 80IB(10)(b) by introducing the 'proviso' to section 80IB(10)(a & b). It was further submitted that the substantive provision of law cannot be overridden by the CBDT notification dated 05.01.2011 which restrict the eligibility of section 80IB(10) to housing projects approved under the slum rehabilitation scheme only on or after 01.04.2004 and before 31.03.2008. Learned assessee's representative has pointed out that the issue is squarely covered by the order dated 14.03.2014 passed by the coordinate Mumbai bench of this Tribunal in Ramesh Gunshi Dedhia Vs. Income Tax Officer, ward-21(1)(2), Mumbai, [2014] 45taxmann.com 155 (Mum-Trib.). 9. Learned DR has submitted that an appeal was preferred by the revenue against the ITAT order dated 14.03.2014 passed by the Tribunal in Ramesh Gunshi Dedhai (supra). However, the same was withdrawn due to low monetary effect. Learned DR thus submits that this Tribunal has to give a free look to the case in hand, however supported the impugned order. 10. At the very outset, it is pertinent to mention that assessee raised the grievances before Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roject has been approved by the local authority before the 1st day of April, 2004, on or before the 31st day of March, 2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April, 2004 but not later than the 31st day of March, 2005, within four years from the end of the financial year in which the housing project is approved by the local authority; (iii) in a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority. Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 vide SRA approval letter at page 56-61 of assessee's paper book commencement certificate for sale-c2 was granted by SRA on 29.06.2002 vide page 66-67 of assessee's paper book. Full occupation certificate was granted for rehabilitation building-A on 27.04.2001 vide page 62 of assessee's paper book. Full occupancy certificate was also granted for rehabilitation building-B on 27.04.2004 vide page 65 of assessee's paper book. Full occupation certificate was granted for sale building-C on 02.06.2003 vide pages 63-64 of assessee's paper book. Full occupation certificate for sale of building C2 was granted on 17.01.2008 by SRA vide page 68-69 of assessee's paper book. The scheme of SRA contained in regulation 33(10) of development control regulation for greater Mumbai has been notified vide CBDT notification no. 67 dated 03.08.2010 which was further clarified by CBDT in notification No. 01/2011 dated 05.01.2011. The rigours of section 80IB(10) were relaxed by introduction of proviso by finance Act, 2004, wherein it was provided that the condition stipulated in clauses (a) & (b) shall not be applicable. 13. As regards, the condition/requirement of section 80IB(10)(b) in respect of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 2011 of CBDT as under- S.O.(E)- In exercise of the powers conferred by clauses (a) and (b) of sub-section (10) of section 80IB of the Income Tax Act, 1961 (43 of 1963). The board hereby notifies, the Scheme for slum redevelopment prepared by the Maharashtra Government under sub-section (2) of Section 37 of the Maharashtra Regional Town Planning Act, 1966 (Mah.XXXVII of 1966) and published vide notification No. TPS-1893/973/CR-49/93A/UD-13, dated the 26th February, 2004, as a scheme for the purposes of the said section subject to the condition that any amendment to the Scheme hereby notified shall be required to be re-notified by the Central Board of Direct Taxes. This notification shall be deemed to apply to projects approved by a local authority under the aforesaid scheme on or after the 01st day of April, 2004 and before 31st day of March, 2008 thereby making the incomes arising from such Projects eligible for deduction under sub-section (10) of section 80IB from the Assessment Year 2005-06 onwards." 7.1 As per this notification the board in para 2 has stated that this notification shall be deemed to apply to the projects approved by the local authority under the SRS sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions stipulated there under. One of the conditions is that the project is on the size of plot of land which has a minimum area of 1 acre under clause (b) of section 80IB(10). An exclusion has been carved out under the proviso to clause (a) & (b) of the section 80IB(10) whereby the condition stipulated under clause (a) & (b) shall not apply to the housing project carried out in accordance with the scheme framed by the Central Government or State Government for reconstruction or redevelopment of area declared as slum area under the law. The projects of the assessee are under the slum rehabilitation scheme framed by the State Government of Maharashtra which has been notified by the board vide notification dated 05th January 2011. Thus it is clear that the requirement under the proviso to section 80IB(10) (a) & (b) for exclusion of the conditions prescribed under the said clauses is that the housing project is carried out in accordance with the scheme for reconstruction or redevelopment of slum area. Such scheme either framed by State Government or Central Government and notified-by-the board in this behalf. The plain reading of the proviso inserted by the Finance Act, 2004 to cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 80IB(10) and not for adding any new condition which is otherwise not required for housing projects for availing the benefit of deduction u/s 80IB(10). Even otherwise the condition as stipulated in clause (a) of section 80IB(10) is with respect to sanction of the project is only for the time period of completion of the project and there is not such condition that if a project is approved prior to 01.04.2004 is not entitled for the benefit u/s 80IB(10). The proviso in question stipulates the requirement of notification of scheme of reconstruction or redevelopment of slum area and does not discriminate the project carried out in accordance with such scheme framed by the Central Government or by the State Government. Once the scheme is notified all projects carried out in accordance with such scheme are entitled for the benefit of the proviso whereby the conditions prescribed under clause (a) & (b) are relaxed. Thus the second part of the notification dated 5th January 2011 is inconsistent/contrary to the proviso.The Board cannot insert a new condition in the provisions of a statute which is repugnant to the provisions itself as well as against the very object and scheme of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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