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2012 (7) TMI 91 - HC - Income TaxWhether the Tribunal was correct in holding that the Assessing Officer had failed to prove that the residential flats exceeded built-up area of 1500 sq. feet each and penthouse flats Held that - All the 84 or 83 flats constructed are less than the 1,500 sq. ft., the assessee cannot be denied the benefit and taxed on the ground that it exceeds 1,500 sq. ft. Hence this question of law is answered in favour of the assessee and against the revenue. Whether the definition of built-up area as inserted by Finance (No.2) Act of 2004 with effect from 01.04.2005 is prospective or retrospective in nature Held that - Object behind enacting this provision, namely to bring in investments and to encourage the infrastructure development of middle income housing projects - Courts have to harmonize these provisions and interpret the same in a manner to achieve the object of the legislature than to distress the said object - definition of built-up area as inserted in sub-Section 14(a) of Section 80-IB by Finance No.2 Act of 2004, which came into effect from 01.04.2005 cannot be held to be retrospective; it applies only to such housing projects, which are approved subsequent to 01.04.2005 - Assessee, in the instant case, is entitled to the benefit of the aforesaid provision and hence the said substantial question of law is answered in favour of the assessee and against the revenue. Whether a housing project includes a commercial complex - if in the housing projects approved by the local authority, a commercial complex is also constructed, does it cease to be a housing project so as to disentitle the assessee from the benefit of Section 80-IB (10) of the Act - by way of amendment, introduction of clause d of sub-Section 10 of Section 80-IB, it is clear that the housing project contemplated under sub-section 10 of Section 80IB includes commercial establishments or shops also Held that - By way of an amendment, an attempt is made to retract the size of the shops or commercial establishments - Therefore, necessarily the said provision also has to be read prospectively and not retrospectively. As is clear from the amendment, this provision came into effect only from the day the provision was substituted. Therefore, it cannot be retrospective - In favour of the assessee
Issues Involved:
1. Whether the Tribunal was correct in holding that the Assessing Officer had failed to prove that the residential flats exceeded a built-up area of 1500 sq. feet each and that penthouse flats and other flats built contrary to the sanctioned plan were constructed by the assessee. 2. Whether the Tribunal was correct in holding that the definition of "built-up area" inserted by Finance No. 2 Act of 2004 with effect from 01.04.2005 is prospective and not retrospective. 3. Whether the Tribunal was correct in holding that the housing project over which deduction under Section 80-IB(10) of the Act was claimed was entitled to the same despite a commercial complex also being constructed. 4. Whether the Tribunal was correct in allowing deduction under Section 80-IB(10) of the Act when the assessee violated the norms prescribed in the Section and the sanctioned plan. Detailed Analysis: 1. First Substantial Question of Law: The assessee obtained approval for a housing project on 14.06.2002 and constructed 84 flats within the stipulated period. The construction included head rooms on the top floor, which were not part of the sale deeds. The local authority granted an occupancy certificate, indicating compliance with the sanctioned plan. The Tribunal found no evidence that the assessee constructed the head rooms before the sale of the flats. The Tribunal held that the balconies should be excluded from the built-up area calculation as per the National Building Code before 01.04.2005. Thus, the flats were within the 1500 sq. ft. limit, and the assessee was entitled to the benefit under Section 80-IB(10). The court answered this question in favor of the assessee. 2. Second Substantial Question of Law: The definition of "built-up area" was inserted by the Finance (No.2) Act of 2004, effective from 01.04.2005, and included projections and balconies. Before this amendment, built-up area did not include these elements according to the National Building Code and Building by-laws. The court held that the amendment was not retrospective as the legislature did not explicitly state so. Applying the definition retrospectively would require the assessee to seek a modified plan, which would be impractical and contrary to the legislative intent. Therefore, the definition applies only to housing projects approved after 01.04.2005. This question was also answered in favor of the assessee. 3. Third and Fourth Substantial Questions of Law: The court examined whether a housing project that includes a commercial complex ceases to be a housing project under Section 80-IB(10). The approved housing project included 84 residential units and a commercial building. The court noted that the provision was amended to limit the built-up area of shops and commercial establishments to 3% or 5000 sq. ft., effective from the date of the amendment. Prior to 01.04.2005, there was no such limitation. The court held that the provision is prospective and does not apply to projects approved before this date. Consequently, the assessee was entitled to the benefit under Section 80-IB(10), and the interpretation by the Assessing Authority and Appellate Commissioner was unwarranted. These questions were answered in favor of the assessee. Conclusion: The court answered all substantial questions of law in favor of the assessee and against the revenue, thereby dismissing the appeal.
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