2012 (12) TMI 59 - AT - Income Tax

Deduction u/s.80IB(10) denial of deduction because the assessee had constructed more commercial area than permitted under clause (d) of sec. 80IB(10) Held that - Assessee commences the project but is able to complete only in the previous year relevant to asst. yr. 2005-06. As per the change in law from asst. yr. 2005-06 with regard to the area of commercial space in a housing project the assessee would loose his eligibility to claim deduction. In such cases, there is definitely grave hardship to the assessee - legislature would not have intended to take away a vested right without clear words to that effect in the provisions of s. 80-IB(10) as amended by the Finance Act, 2005, w.e.f. 1st April, 2005 - law as it existed in the asst. yr. 2004-05 when the assessee submitted its proposal for slum rehabilitation and the permission for carrying out the development was accorded on 17th Nov., 2003 and when the assessee commenced development is to be applied - Revenue s appeal is dismissed

Summary

Issues involved:
Interpretation of deduction u/s.80IB(10) - retrospective effect of clause (d) of Section 80IB(10) - construction of more commercial area than permitted under clause (d) of sec. 80IB(10).

Analysis:
1. The primary issue in this appeal was the entitlement to deduction u/s.80IB(10) amounting to Rs.7,68,52,511, which was denied by the Assessing Officer (AO) due to the construction of more commercial area than allowed under clause (d) of sec. 80IB(10).
2. The Commissioner of Income Tax (Appeals) [CIT(A)] allowed the deduction by relying on the decision of the Special Bench of the Tribunal in the case of Brahma Associates and a previous order in a similar case.
3. The appellant argued that the issue was covered by the decision of the Bombay High Court in the case of CIT vs. Brahma Associates and other Tribunal decisions supporting the allowance of deduction in similar circumstances.
4. The Bombay High Court held that clause (d) of section 80IB(10) inserted with effect from April 1, 2005, is prospective and not retrospective. The Tribunal's decision to restrict the deduction to a part of the project was not justified.
5. The Tribunal in another case emphasized the importance of the time of approval by the local authority and the conditions to be satisfied for deduction under section 80IB(10) at different points in time.
6. The Tribunal concluded that the law as it existed when the project was commenced should be applied, and the amendment by the Finance Act, 2005, should not take away vested rights without clear provisions to that effect.
7. Following the decisions of the Tribunal and the Bombay High Court, the Appellate Tribunal found no infirmity in the CIT(A)'s order deleting the disallowance and dismissed the Revenue's appeal.

In conclusion, the issue of deduction u/s.80IB(10) and the retrospective effect of clause (d) of Section 80IB(10) was settled in favor of the assessee based on the interpretation of relevant legal provisions and judicial precedents. The Tribunal's decision highlighted the importance of considering the law as it existed when the project commenced and upheld the allowance of deduction based on the prevailing conditions at that time.