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TMI Blog2012 (11) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... 0IB (10) in respect of the housing project called "Golden Nest" constructed in various phases i.e. phase VII to XI-A at Bhayander area. For the year under consideration i.e. A.Y. 2006-07, the assessee has claimed deduction u/s 80IB(10) at Rs. 2,83,75,846/- in respect of the housing project called "Golden Nest". The claim of the assessee for deduction u/s 80IB(10) for the A.Y. 2005-06 was examined by the A.O. and found that in the housing project of the assessee, the total built up area of shops in phase VII is 8327 sq. ft. and in the phase X it is 7768 sq. ft. A reference was made to the local authority i.e. Mira Bhayander Municipal Corporation by the A.O. to clarify as to whether the project of the assessee was a housing project and in res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006. The A.O. further observed that apart from selling flats pertaining to phases XI and XI-A of the project during the year under consideration, the assessee also sold small left over built up areas of phases VII and X which also had commercial area exceeding 2000 sq. ft. during the same period. In view of the commercial are of the project being more than 2000 sq. ft., the A.O. asked the assessee as to why the deduction u/s 80IB(10) claimed by him on the above project may not be disallowed as the project of the assessee consists of commercial area which is in excess of the limit prescribed u/s 80IB(10)(d) of the Act. In response to the above, the assessee submitted that since the subject housing project was approved by the local authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behind the grant of benefits under section 80IB(10) was to give benefits for creation of housing infrastructure for the middle strata of the society. The benefits did not extend to the development of properties for commercial use. The benefit was meant for dwelling units for middle sections of the society. The A.O., after, relying on the decision of ITAT Mumbai in the case of Laukik Developers (2008) 108 TTJ 0364, concluded that the assessee does not fulfil the conditions as prescribed u/s 80IB(10)(d) (wrongly mentioned as 80IB(10)(a) in respect of phase -XI A and, therefore, he disallowed the claim of deduction u/s 80IB (10) in respect of the above phases of the property known as "Golden Nest". 2. On appeal, the ld. CIT(A) following The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of the A.O. 5. On the other hand, the ld. counsel for the assessee while relying on the order of the ld. CIT(A) refers page No. 18 of the assessee's paper book to submit that the percentage of commercial area of the property known as 'Golden Nest' phase VII is at 6.59%, phase X is at 4.99% and combined phase XI and XI A is at 5.48% which is less than 10% as held by the Hon'ble jurisdictional High Court in the case of CIT vs. Brahma Associates reported in (2011) 333 ITR 289 (Bom), therefore, the ld. CIT(A) was fully justified in allowing the claim of the assessee. On the issue of row houses, the ld. counsel for the assessee submits that this issue does not arise in the year under consideration as the same has already been considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other conditions), deduction under section 80-IB(10) is allowable to housing projects approved by the local authority having residential units with commercial user to the extent permitted under the Development Control Rules/ Regulations framed by the respective local authority. (b) In such a case, where the commercial user permitted by the local authority is within the limits prescribed under the Development Control Rules/Regulation, the deduction under section 80-IB(10) up to March 31, 2005 would be allowable irrespective of the fact that the project is approved as "housing project" or "residential plus commercial". (c) In the absence of any provisions under the Income-tax Act, the Tribunal was not justified in holding that up to March ..... X X X X Extracts X X X X X X X X Extracts X X X X
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