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2016 (5) TMI 144 - AT - Income TaxDeduction under section 80 IB - effect of amendment - prospectively - Held that - The prohibition against sale of more than one flat in a housing project to members of same family has been inserted specifically with effect from 1. 4. 2010 and the same cannot be treated with retrospective effect. A perusal of the provisions of Sec. 80IB(10) would show that it provides deduction for housing projects which are approved on or after 1. 10. 1998 and upto 31. 3. 2008. It also differentiates the projects approved between 1. 10. 1998 to 31. 3. 2004 1. 4. 2004 to 31. 5. 2005 and 1. 4. 2005 to 31. 3. 2008. If the section is further analysed it is based upon the approval of the project. If the project is already approved prior to 1. 4. 2005 any subsequent restriction brought in Sec. 80IB would have to be given perceptive effect - Decided in favour of assessee
Issues:
1. Deduction under section 80 IB of the Income Tax Act not allowed by the Assessing Officer. 2. Disallowance of claim made by the assessee under section 80 IB (10) of the Act due to plot size and built-up area exceeding 1000 sq. ft. 3. New facts emerging during assessment under section 153A of the Act. Issue 1: Deduction under section 80 IB not allowed by the Assessing Officer: The Assessing Officer (AO) denied the assessee's claim of deduction under section 80 IB(10) of the Act, stating that the project did not meet the criteria as per the provisions of the Act. The First Appellate Authority (FAA) decided in favor of the assessee, noting that the issue had been previously decided in favor of the assessee by the Tribunal and the Honorable Bombay High Court. The FAA also addressed the issue of combined residential units exceeding 1000 sq. ft. The FAA considered the arguments presented by the assessee regarding the sale of two adjoining flats as separate units and found in favor of the assessee based on the previous decisions for AY 2004-05 to 2008-09. The FAA concluded that the AO's order could not be sustained and allowed the appeal filed by the assessee. Issue 2: Disallowance of claim under section 80 IB (10) due to plot size and built-up area exceeding 1000 sq. ft: The AO disallowed the claim made by the assessee under section 80 IB (10) for each building being considered a separate project with a plot of land less than 1 acre and some residential units exceeding 1000 sq. ft. The FAA reviewed the assessment order, remand report of the AO, and the arguments presented by the assessee. The FAA observed that the disputed residential units had been sold as individual units with separate agreements, society charges, and municipal taxes, supporting the assessee's contention. Referring to relevant cases, the FAA held that the built-up area of the flats was less than 1000 sq. ft. as per ministerial regulations, and thus, the AO's order was not sustainable. The FAA allowed the appeal filed by the assessee. Issue 3: New facts emerging during assessment under section 153A of the Act: The AO claimed that new facts had emerged during the assessment under section 153A, which were not available during the earlier proceedings. However, the remand report confirmed that the facts mentioned in the original and impugned assessment orders were the same. The Tribunal, following the decision confirmed by the Honorable Jurisdictional High Court, dismissed the AO's claim of new facts emerging during the assessment under section 153A. The Tribunal upheld the FAA's decision in favor of the assessee, dismissing the appeals filed by the Revenue. In conclusion, the Tribunal upheld the FAA's decision, dismissing the appeals filed by the Assessing Officer. The issues regarding the deduction under section 80 IB, disallowance due to plot size and built-up area exceeding 1000 sq. ft, and the emergence of new facts during assessment under section 153A were thoroughly analyzed and decided in favor of the assessee based on previous judicial decisions and relevant legal provisions.
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