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TMI Blog2013 (2) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's project is not liable for deduction u/s 80-IB, once all other conditions are fulfilled. One can say that the date of commencement i.e., 17th October 2004, can be taken as the date of approval as it was from this date the approval given by the SRA becomes operative. Thus, the contentions of the revenue cannot be sustained. In favour of assessee - IT Appeal No. 2901 (Mum.) of 2011 - - - Dated:- 12-9-2012 - P.M. Jagtap And Amit Shukla, JJ. S.K. Singh for the Appellant. Rakesh Joshi for the Respondent. ORDER Amit Shukla, Judicial Member - The present appeal preferred by the Revenue, is directed against the impugned order dated 31st January 2011, passed by the learned Commissioner (Appeals)-XXXII, Mumbai, for assessment year 2007-08, on the following grounds:- "1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing deduction under section 80IB(10) of Rs. 1,47,11,573, without appreciating the fact that the project is not eligible for deduction under section 80IB(10). 2. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in appreciating that the date of approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aggregate size of the project or two thousand square ft, whichever is less; and (iv) Project has been completed within the stipulated period. 4. However, till the date of the completion of assessment proceedings, the CBDT had not issued any notification in terms of the proviso to sub-section (10) of section 80-IB. The assessee before the Assessing Officer pleaded that since all other conditions stands fulfilled, the claim for deduction under section 80-IB(10), should be otherwise allowed. 5. The Assessing Officer, after analysing the provisions of section 80-IB(10), which was applicable prior to 1st April 2005, and also after 1st April 2005, held that the assessee does not fulfil the conditions given in the proviso to section 80-IB(10), which clearly states that the claim has to be notified by the CBDT, which, in the present case, the scheme on which the assessee has done her project has not been notified which is evident from the letter dated 23rd August 2007, issued by the CBDT. Accordingly, he disallowed the claim of Rs. 1,47,11,573, made under section 80-IB(10), vide order dated 24th December 2009. 6. Aggrieved, the assessee carried the matter in first appeal, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oject eligible for deduction under sub-section (10) of section 80IB from the A.Y. 2005-06 onwards. The appellant also satisfies other conditions of the notifications, such as the project is approved by the slum rehabilitation authority and the scheme is notified by the notification dated 3/8/2010 and such scheme does not fall under category VII mentioned in notification no.TPB-4391/4080(A)/UD-11(RDP) dated 3rd June 1992, or within clause 7.7 of the Appendix IV of regulation 33(10) which provides for joint development of slum and non-slum area. Therefore, after the clarificatory notification issued by CBDT on 5.1.2011, the appellant is now eligible for deduction under section 80IB(10) in respect of the profits derived from housing project on a land though the same is less than 1 acre. Therefore, A.O. is directed to allow the deduction of Rs. 1,47,11,573 under section 80IB(10). Aggrieved, the Revenue is in appeal before the Tribunal. 9. The learned Departmental Representative, first of all, submitted before us that the notification issued by the CBDT, was a fresh evidence which was not available before the Assessing Officer, therefore, the Commissioner (Appeals) should have calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been approved. The CBDT cannot, in any manner, frustrate the object and intent of the legislation by providing the time limit of approval. In support of this contentions, he relied upon the judgment of the Hon'ble Supreme Court in Shashikant Laxman Kale v. UOI [1990] 185 ITR 104, and various other decisions. He further submitted that once the amendment has been brought with a view to cure the hardship being faced in re-development of slums under the approved scheme of the State or Central Govt., the same should be treated as retrospective. In support of this pleading of retrospective effect is such situation, he relied on two Supreme Court judgments namely CIT v. Alom Extrusions Ltd. [2009], 319 ITR 306 and Allied Motors (P.) Ltd. v. CIT [1997] 224 ITR 677. 11. We have carefully considered the rival contentions and have perused the findings of the learned Commissioner (Appeals) as well as the material available on record. The assessee has undertaken a project under the scheme of Slum Rehabilitation Authority (SRA) framed by the Govt. of Maharashtra for carrying out a housing project in Dharavi, which is one of the biggest slum areas. The assessee, vide letter of intent dated 3r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf;" 12. From the plain reading of the above, it would be seen that the condition precedent for availing the deduction under section 80IB(10), has been given in clauses (a) and (b). On these conditions, rider has been put by the proviso which starts with a kind of non-obstante clause that "nothing contained in clauses (a) and (b) shall apply" to a housing project which has been carried out in accordance with the scheme framed by the Central Govt. or State Govt. for re-construction or re-development in areas to be slum under any law and it further provides that such a scheme should be notified by the Board in this behalf. Thus, an exception has been carved out by the proviso in cases of housing project de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a developer who undertakes to develop a housing project in a slum area under the scheme approved by the Central or State Govt. The CBDT which had issued the notification after more than five years of the amendment, has put a time limit of those housing projects which has been approved by the local authority on/or after 1st April 2004. Such a time limit can defeat the basic purpose of the proviso for which it was enacted as in the said proviso, the time limit provided in clause (a) of section 80-IB(10) has not been specifically made applicable, therefore, such a time limit cannot be imposed by way of subordinate legislation. Such notification can only clarify the statutory provisions and not over-ride them or restrict the operation of the main enactment. Therefore, in our considered opinion, the time limit of approval on/or after 1st April 2004, will not be applicable in the case of the proviso to section 80-IB(10). 15. Moreover, in the instant case, the approval which was given on 4th August 2003, was loaded with lot of terms and conditions to be fulfilled before the commencement. It was only after such terms and conditions were fulfilled, the assessee was given the commenceme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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