2013 (11) TMI 1673 - AT - Income Tax

Deduction u/s.80IB(10) - Held that - The main limb on which deduction was denied was for the reason that area of verandah was not excluded or exempt under section 78(3) of the Bye-laws of Kolhapur Municipal Corporation. CIT(A) following the decision of his predecessor decided the issue in favour of assessee with regard to 19 bungalows. With regard to bungalows C5 and D5 which admittedly are more than 1500 sq.ft. but were sold to the owners of the land and profit thereof has not been the subject matter of section 80IB(10). Accordingly no adverse view has taken by CIT(A). Coming back to the issue of built up area as per bye-laws of Kolhapur Municipal Corporation with regard to 19 bungalows mentioned above we find that Tribunal has set aside this issue to Assessing officer stating that the Finance Act of 2004 with effect from 01/04/2005 inserted the definition of built up area at subsection 14(1) of section 80IB. The built up area was defined as under Built up area means the inner measurements of the residential unit at the floor level including the projections and balconies as increased by the thickness of the walls but does not include common areas shared with other residential areas.Technically speaking the definition of built up area as given above will be applicable only with effect from 01/04/2005. The Honourable Supreme Court in a recent Five Judge Bench decision in the case of CIT V/s Varas International Pvt. Ltd. 2006 (2) TMI 76 - SUPREME Court has held that for an amendment to be construed as being retrospective the amended provision must indicate either by terms or by necessary implication that it is to operate retrospectively. Thus we restore this issue to Assessing Officer with similar directions.

Summary

Issues Involved:
1. Application of the case Brahma Associates V/s. CIT-II, Pune.
2. Deduction under section 80IB(10) for bungalows exceeding the limit of 1500 sq.ft.
3. Fulfillment of all conditions under section 80IB(10) for deduction eligibility.
4. Consideration of Miscellaneous Petition by the AO.
5. Exclusion of verandah space in calculating the built-up area of bungalows.

Issue-wise Detailed Analysis:

1. Application of the Case Brahma Associates V/s. CIT-II, Pune:
The Revenue contested the CIT(A)'s application of the Brahma Associates case, arguing that the assessee violated section 80IB(10)(d). The Tribunal upheld the CIT(A)'s decision, referencing the Brahma Associates case, which established that a housing project approved by local authorities with permissible commercial use is eligible for section 80IB(10) deduction.

2. Deduction under Section 80IB(10) for Bungalows Exceeding the Limit of 1500 sq.ft.:
The Revenue argued that the assessee violated section 80IB(10)(c) by constructing bungalows exceeding 1500 sq.ft. The Tribunal noted that the definition of "built-up area" including verandah was introduced by the Finance (No.2) Act, 2004, effective from 01.04.2005, and held that this definition is not retrospective. Therefore, the pre-2005 projects should not include verandah in the built-up area calculation, supporting the CIT(A)'s decision.

3. Fulfillment of All Conditions under Section 80IB(10) for Deduction Eligibility:
The Tribunal examined whether the assessee met all conditions under section 80IB(10). It found that the project was approved before 01.04.2005, and the conditions for built-up area and commercial space were not applicable retrospectively. The Tribunal upheld the CIT(A)'s decision that the assessee fulfilled the necessary conditions for deduction.

4. Consideration of Miscellaneous Petition by the AO:
The Revenue claimed that the CIT(A) ignored a Miscellaneous Petition by the AO regarding reassessment. The Tribunal did not find this argument substantial enough to overturn the CIT(A)'s decision, as the primary issues regarding built-up area and commercial space were already addressed.

5. Exclusion of Verandah Space in Calculating the Built-up Area of Bungalows:
The Tribunal addressed whether verandah space should be included in the built-up area calculation. It referred to the Kolhapur Municipal Corporation's by-laws and previous Tribunal decisions, concluding that verandah space should not be included for projects approved before 01.04.2005. The Tribunal restored this issue to the AO for further examination, following similar directions as in previous cases.

Conclusion:
The Tribunal partly allowed the Revenue's appeals, restoring certain issues to the AO for re-examination, and upheld the CIT(A)'s decisions on key points regarding the non-retrospective application of the built-up area definition and the eligibility for deduction under section 80IB(10). The cross objections by the assessee were disposed of accordingly.