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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 ..... eal No.395 of 2013 - - - Dated:- 16-9-2013 - M R Shah And Sonia Gokani, JJ. For the Appellant : Mr Pranav G Desai, Adv. For the Respondent : None ORDER :- PER : Sonia Gokani Aggrieved by the order of the Income Tax Appellate Tribunal (hereinafter referred to as the Tribunal ) dated December 14, 2012, the present Tax Appeal has been preferred by the appellant-Revenue raising the following questions of law for our consideration : "(A) Whether the ITAT was justified in law and on facts in holding that the action of the A.O. in reopening the proceedings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no right to open the reassessment after a period of four years. With regard to the claim on merits, it was a deduction under section 80IB of the Act, the Assessing Officer held that the same was not allowable as per the amendment inserted subsequently in section 80IB(10) of the Act, which was not made with retrospective effect. In similar set of circumstances, this Court for the assessment year 2004-05, in the assessee s own case, had quashed the action of the Assessing Officer of reopening the assessment beyond a period of four year. Thus, on the first count, the 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 secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idential units and commercial establishments if it is approved as a housing project 'by the local authority or where 90 per cent or more of the total built-up area is used for dwelling units; in case commercial use of built-up area is more than 10 per cent but the residential segment of the project satisfies requirements of s.80-IB(10) on standalone basis, and income from construction of residential dwelling units can be worked out separately, deduction under s.80-IB(10) will be available in respect of residential segment of 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 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own case and thus, the facts and circumstances would lead the Tribunal to uphold the order of the CIT (Appeals). 7. It could be noted from the decision of this Court rendered in Tax Appeal No.1119 of 2011 that the issue on merit, as rightly pointed out, is squarely covered. It would be profitable to reproduce the relevant findings as under : "8. Having heard the learned counsel for the respective parties, we notice that in a recent judgment dated 3-9-2012, a Division Bench of this court in the case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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