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TMI Blog2013 (10) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... s u/s.147 of the Act is bad in law and the A.O. was not right in reopening the assessment ? (B) Whether the ITAT was justified in law and on facts in coming to the conclusion that the disallowance of deduction u/s.80 IB (10) of Rs.32,84,031/- made by the A.O. is required to be deleted even though it is established that the built up area of the shops and other commercial establishments is 7.96% exceeding the statutory limit of 5% of aggregate built-up area of the housing project or 2000 sq.ft. whichever is less is re-opened under subsection (d) of Sec.80 IB of the Act ?" 2. We have heard the learned counsel Mr.Pranav Desai appearing on behalf of Revenue, who has forcefully argued to consider the lack of any reasoning as far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (Appeals) deemed it fit not to allow the process of reopening initiated by the Assessing Officer. 5. With regard to the second question of eligible deduction under section 80IB(10) of the Act, it would be apt to reproduce the findings of the CIT (Appeals), which read as under : "4.2 I have carefully considered the finding given by the Assessing Officer and the submission of the AR of the appellant. I find that similar issue arose appellant's case in A.Y. 06-07 wherein my predecessor CIT(A), vide para-6 on page-5 & 6 of his order in Appeal No.CIT(A)-I/301/08-09 dated 22/10/09 has held as under : "6. I have carefully considered the issue. I find that the shops does not appear to be the integral part of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the project." In view of the above decision of the Special Bench of Tribunal also the appellant is entitled to deduction u/s.80-IB(10) of the Act in respect of residential unit because, as per the AO himself the total built-up area of commercial unit was 7.96% which goes to show that more than 90% of the built-up area has been used for dwelling units. Since the appellant has abandoned one part of the project it has taken completion certificate in respect of other units bearing No.A to F and these certificates have been duly granted by the Municipal Authorities. Therefore, in respect of these projects even otherwise the appellant is entitled to deduction u/s.80IB(10) of the Act. Following the decision of Special Bench of Pune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Manan Corporation vs. Asstt. Commissioner of Income-Tax in Tax Appeal No.1053/2011 came across a somewhat similar question. In the said case, the assessee had claimed deduction under section 80IB(10) of the Act for having developed a housing project. The assessee had conformed to the ceiling of the commercial construction in such housing project as was applicable when the housing project was approved. Subsequently, however, such ceiling was reduced. Revenue contended that since the housing project was not yet completed, the reduced ceiling of permissibility of commercial construction should be applied. This court held that such reduced limit could not be applied. Relevant observations of the judgment read as under:- "21. N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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