2016 (6) TMI 122 - AT - Income Tax

Claim of deduction under section 80IB(10) - Held that - The issue arising before us is identical to the issue before the Tribunal in assessee s own case in assessment year 2008-09, where the deduction claimed under section 80IB(10) of the Act was denied to the assessee on account of area of flats in building F including balcony exceeding 1500 sq.ft. and further in respect of 4 flats adjacent were merged and the area exceeded 1500 sq.ft. and also because of commercial shops / establishments in buildings J & K. The assessee initially had not claimed the deduction under section 80IB(10) of the Act in respect of above said flats and commercial shops. However, additional grounds of appeal were raised before the CIT(A) in assessment year 2008-09 that it was entitled to the claim of deduction under section 80IB(10) of the Act. The said additional plea raised by the assessee was considered at length and after considering the additional evidence filed by the assessee and admitting the same under Rule 46A of the Rules, the CIT(A) held the assessee to be eligible to claim the deduction under section 80IB(10) of the Act. Similar claim has been made by the assessee in the instant assessment year relating to assessment year 2009-10 and where the factual aspects and issue raised are identical to the issue in assessment year 2008-09, following the same parity of reasoning and also because of reason that the CIT(A) in allowing the claim of deduction, had in turn relied on the order of CIT(A) relating to assessment year 2008-09, which has been upheld by the Tribunal in assessment year 2008-09, we allow the claim of assessee. Upholding the order of CIT(A) in this regard, we dismiss the grounds of appeal raised by the Revenue. - Decided in favour of assessee.

Issues Involved:

1. Whether the project approved as a "residential + commercial project" qualifies as a "housing project" for deduction under section 80IB(10) of the Income-tax Act, 1961.
2. Applicability of amended provisions under sections 80IB(10)(d) and 80IB(10)(c) to projects commenced prior to 01.04.2005.
3. Estoppel against the Government in exercise of its legislative powers.
4. Proportionate deduction under section 80IB(10) for eligible residential units in a mixed project.
5. Admission of additional evidence and claims at the appellate stage.

Detailed Analysis:

1. Qualification of "Residential + Commercial Project" as "Housing Project":

The Revenue contended that the project was approved as a "residential + commercial project" and not as a "housing project," which violated the provisions of section 80IB(10) of the Act. The Tribunal, however, relied on the CIT(A)'s decision which had allowed the deduction under section 80IB(10) for the project "Treasure Park," noting that the project was approved before the amendment effective from 01.04.2005. The CIT(A) had considered the project as a whole and found that the conditions laid down in the section were satisfied, except for certain units where no deduction was claimed.

2. Applicability of Amended Provisions:

The Revenue argued that the amended provisions under sections 80IB(10)(d) and 80IB(10)(c) should apply to the project. However, the Tribunal upheld the CIT(A)'s decision that these amendments were not applicable to projects approved before 01.04.2005. The Tribunal referred to the decision in the assessee's own case for the assessment year 2008-09, where it was held that the amendments did not retroactively affect projects sanctioned before the specified date.

3. Estoppel Against the Government:

The Revenue raised the issue that estoppel could not be invoked against the Government in exercise of its legislative powers. The Tribunal did not explicitly address this issue in the detailed analysis but upheld the CIT(A)'s decision, which implicitly rejected the Revenue's argument by allowing the deduction based on the pre-amendment approval of the project.

4. Proportionate Deduction for Eligible Units:

The Tribunal noted that the assessee had claimed proportionate deduction under section 80IB(10) only for the residential units with a built-up area of less than 1500 sq.ft. The CIT(A) had allowed the deduction for these eligible units, and the Tribunal upheld this decision, rejecting the Revenue's argument that the entire project should be disqualified due to the presence of commercial units and larger residential units.

5. Admission of Additional Evidence and Claims:

The Tribunal addressed the Revenue's concern about the CIT(A) admitting additional evidence and claims that were not made in the original return or during assessment proceedings. The Tribunal cited the Bombay High Court's decision in CIT Vs. Pruthvi Brokers and Shareholders, which allows appellate authorities to admit additional claims and evidence. The Tribunal found no merit in the Revenue's argument and upheld the CIT(A)'s decision to admit the additional evidence and allow the deduction based on the revised claims.

Conclusion:

The Tribunal dismissed the Revenue's appeal, upholding the CIT(A)'s decision to allow the deduction under section 80IB(10) for the project "Treasure Park." The Tribunal found that the project, approved before 01.04.2005, met the conditions for deduction, and the amendments to the section did not apply retroactively. The Tribunal also supported the CIT(A)'s decision to admit additional evidence and claims, allowing proportionate deduction for eligible residential units.

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