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2014 (9) TMI 653 - ITAT MUMBAIRejection of deduction u/s 80IB(10) – Conditions not fulfilled – Merger of three plots - scheme for redevelopment of the slum area - Held that:- As decided in assessee’s own case for the earlier assessment year, it has been held that the assessee carried out development on three different plots; each of those plots was less than one acre - These plots were not contiguous to each other - Though the plots were located at Dharavi, Mumbai, they were at different places - there were other slums in between these three slum area 'which was rehabilitated by the assessee - the development cannot be said to be done by the assessee in plot of land of one acre and above - the issue of merger of three plots for the purpose of area of plot being 1 acre has been decided against the assessee consistently by this Tribunal – relying upon CIT v. Brahma Associates [2011 (2) TMI 373 - BOMBAY HIGH COURT] - the requirement under the proviso to section 80IB(10) (a) & (b) for exclusion of the conditions prescribed under the clauses is that the housing project is carried out in accordance with the scheme for reconstruction or redevelopment of slum area - the intent of legislation is to exempt the condition of minimum of 1 acre plot size in the case where the housing project is carried out in accordance with the slum reconstruction scheme framed by the Central Government or State Government and such scheme is notified by the board. The projects are carried out in accordance with the scheme for redevelopment of the slum area as framed by the State Government of Maharashtra and the same has been notified by the board vide notification dated 5th January 2011 - 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 - the second part of the notification is inconsistent/contrary to the proviso of clause (a) & (b) of section 80IB(10) as well as to the intent of the legislature inserting the said 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 said provision of the statute - the proviso to clause (a) & (b) of section 80IB(10) mandates the notification of scheme and not the project under the scheme - Therefore, putting any extra condition for discriminating the project under the scheme is outside the scope of notification under clause (a) & (b) of section 80IB(10) - the assessee is entitled for benefit of the proviso to clause (a) & (b) of section 80IB(10) and, therefore, is eligible for deduction u/s 80IB(10) if the other conditions as prescribed under clause (c) to (e) are satisfied – Decided in favour of assessee.
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