2013 (12) TMI 1010 - AT - Income Tax

Applicability of section 80IB - Held that - Area of commercial usage was less than 5% of total constructed area and project was approved by the CIDCO Municipal Corporation as a residential project - Following Brahma Associates vs. JCIT 2009 (4) TMI 215 - ITAT PUNE - As per insertion of clause (d) in section 80IB(10) vide Finance Act, 2004 - Restriction of 5% is applicable only with prospective effect and there is no justification to presume that such a limit or prohibition was in place in the earlier years as well on the commercial use of area - Even 10% of commercial area can be allowed whereas, Appellant s shops area is less than 10% of the total housing project or residential area - The issue regarding applicability of provision of law under clause (d) of sub- section (10) of section 80IB of Act, is relevant for the housing project approved after 01.04.2005 and it cannot be presumed to be decisive as applicable for the old housing project approved much earlier than amended provision of law prospectively - Decided against Revenue.

Summary

Issues:
- Deduction u/s. 80IB(10) for exceeding commercial area limit of 2000 sq.ft.
- Ex-parte consideration of appeal due to absence of assessee's representation.
- Disallowance of deduction u/s. 80IB(10) by AO based on gymnasium area inclusion.
- Assessee's submission on commercial area being less than 2000 sq.ft. and 5% of total area.
- CIT(A)'s decision allowing deduction based on judicial consistency and precedents.

Analysis:
1. The Revenue filed an appeal challenging the CIT(A)'s order allowing deduction u/s. 80IB(10) concerning the commercial area exceeding 2000 sq.ft., citing the decision of ITAT Special Bench Pune in the case of M/s. Brahma Associates. The AO disallowed the deduction due to the gymnasium area inclusion, which led to the dispute over the commercial area exceeding the specified limit.

2. The case proceeded ex-parte as no representation was made on behalf of the assessee, and the appeal was considered accordingly. The absence of the assessee's representation led to a one-sided evaluation of the appeal.

3. The assessee, a partnership firm developing a housing project, contended that the commercial area was below 2000 sq.ft. and 5% of the total constructed area, meeting the conditions under u/s. 80IB(10). The gymnasium area was excluded as it was part of common amenities for residents, not for commercial gain.

4. The CIT(A) allowed the deduction, emphasizing judicial consistency and citing precedents like the decision in the case of Brahma Associates. The judgment highlighted that even a 10% commercial area could be permissible, which was not exceeded by the appellant's project, justifying the entitlement to the deduction.

5. The decision further emphasized that subsequent legislation should not alter the interpretation of existing laws unless ambiguous, maintaining consistency in judicial interpretation. The order of the CIT(A) was upheld, rejecting the Revenue's appeal based on the lack of merit and the incorrect inclusion of common amenities as commercial area, affirming the assessee's eligibility for the deduction.

6. Ultimately, the Revenue's appeal was dismissed, affirming the CIT(A)'s decision to allow the deduction u/s. 80IB(10) for the housing project, based on the project's compliance with the specified commercial area limits and judicial precedents.