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2013 (7) TMI 649 - ITAT MUMBAIDeduction under Section 80IB(10) - Provisions of section 80-IB(10) were applicable only when project is approved as "housing project" and in the assessee's case it was "residential as well as commercial project" approved by the Navi Mumbai Municipal Corporation - Deduction under section 80-IB(10) be allowed even if the commercial area is up to 10 percent of the total built up area of the plot – Held that:- There was no evidence about the commercial area not being on the ground floor. It, therefore, depicts that the commercial area being shops, etc. were situated on the ground floor of the building. If that be the case then the built up area for staircase and passage, lift or lift room are to be considered as part and parcel of residential area because these are only to facilitate residents for going up and coming down from the building. It does not assist shops, in any manner, to function with the help of staircase, lift area, lift room, etc. In such a situation the built up are covered under staircase, life passage, lift room etc. has to be considered as part and parcel of residential area and not as commercial area – Deduction is eligible to housing project approved by the local authority as such or as "residential plus commercial project" having residential as well as commercial units to the extent permitted under the Development Control Rules – Decided in favor of Assessee. Unbuilt-up area also be considered in proportion to the residential and commercial area – Held that:- It is obvious that there cannot be 100 percent construction on any plot. Some area has to be left open as per the plan and construction can be done only as per the specifications approved by the competent authority. By no stretch of imagination can an open area be considered as proportionately relatable to residential as well as commercial area. As the size of the plot in this case is more than one acre, condition under section 80IB(10)(b) also stands fully satisfied - Decided in favor of Assessee. Proceeding under section 147 read with section 143(3) – Held that:- Assessee can be allowed deduction under section 80-IB(10) only to the extent it was disallowed in the present proceedings which amounts to ₹ 2,23,85,571. In so far as the disallowance of deduction to the tune of ₹ 31,70,650 is concerned, the same cannot be conferred on the assessee for the reason that it was disallowed in the original assessment order passed under section 143(3) and no material has been brought to our notice to indicate that such order has been modified in any manner. As the reassessment proceedings are aimed at taxing the income which has escaped assessment, these cannot be taken as a tool for putting the assessee in a better position than in which it was before such proceedings - Decided against the Assessee.
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