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TMI Blog2013 (7) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... parcel of residential area and not as commercial area – Deduction is eligible to housing project approved by the local authority as such or as "residential plus commercial project" having residential as well as commercial units to the extent permitted under the Development Control Rules – Decided in favor of Assessee. Unbuilt-up area also be considered in proportion to the residential and commercial area – Held that:- It is obvious that there cannot be 100 percent construction on any plot. Some area has to be left open as per the plan and construction can be done only as per the specifications approved by the competent authority. By no stretch of imagination can an open area be considered as proportionately relatable to residential as well as commercial area. As the size of the plot in this case is more than one acre, condition under section 80IB(10)(b) also stands fully satisfied - Decided in favor of Assessee. Proceeding under section 147 read with section 143(3) – Held that:- Assessee can be allowed deduction under section 80-IB(10) only to the extent it was disallowed in the present proceedings which amounts to ₹ 2,23,85,571. In so far as the disallowance of deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not eligible. In the assessment order passed, the Assessing Officer also examined that the total saleable area of the project was for 1,08,576 sq.ft. and the commercial area at 11,414 sq.ft. was 10.51 percent of the total saleable area of the project. Considering all these facts the Assessing Officer denied the remaining amount of deduction under section 80-IB(10). No relief was allowed in the first appeal. We have heard the rival submissions and perused the relevant material on record. It is noticed that in the original assessment deduction under section 80-IB(10) was disallowed to the extent it was relatable to the profits of commercial area. However in the instant proceedings under section 147, the Assessing Officer denied the remaining part of the deduction which was earlier allowed as in his opinion only the projects approved as "housing projects" were eligible and not those approved as "residential as well as commercial project" by the local authority, which in this case is Navi Mumbai Municipal Corporation. It would be relevant to note that the Special Bench of the Tribunal in Brahma Associates v. Joint CIT [2009] 315 ITR (AT) 268 (Pune) ; [2009] 119 ITD 255 (Pune) [S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to deduction. The Assessing Officer has calculated the percentage of commercial area to the total area at 10.51 per cent., which is otherwise not correct, as even accepted by the learned Departmental representative. Even if we do not enter into the arena of calculation of the percentage of commercial area vis-a-vis total built up area, the assessee deserves to succeed on the basis of the judgment of the hon'ble jurisdictional High Court as the project has been approved by the Navi Mumbai Municipal Corporation and it is nobody's case that the residential units with commercial user are not to the extent permitted under the Development Control Rules/regulations. If that be the position the assessee becomes entitled to deduction under this section for the entire amount of deduction. The learned Departmental representative placed reliance on the order passed by the Kolkata Bench of the Tribunal in Bengal Abuja Housing Development Ltd. v. Deputy CIT I. T. A. No. 1595/Kol/2005 dated March 24, 2006 by contending that the second condition for allowability of deduction under section 80-IB(10) as provided under clause (b), was not satisfied by the assessee. He stated that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld also be considered in proportion to the residential and commercial area. It is obvious that there cannot be 100 percent construction on any plot. Some area has to be left open as per the plan and construction can be done only as per the specifications approved by the competent authority. By no stretch of imagination can an open area be considered as proportionately relatable to residential as well as commercial area. As the size of the plot in this case is more than one acre, condition under section 80IB(10)(b) also stands fully satisfied. In so far as the reliance of the Kolkata Bench order in Bengal Abuja Housing Development Ltd. is concerned, we are again unable to find any finding given by the Tribunal which comes in the way of granting deduction to the assessee in consonance with the judgment of the hon'ble jurisdictional High Court. The learned Departmental representative has referred to certain submissions made before the Kolkata Bench but was unable to point out the relevant parts of the Tribunal order wherein such submissions have been accepted. We are further not convinced with the contention put forth by him that only the "housing projects" should be considered as eli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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