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TMI Blog2013 (10) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 – It was held in that case that there was no such restriction in taxing statute and the permissible ratio for commercial user made 5% to the total built up area by way of amendment and reduction of which by further amendment to 3% of the total built up area, has to be necessarily construed on prospective basis – Decided against the Revenue. - Tax Appeal No. 1119 of 2011 - - - Dated:- 23-10-2012 - Akil Kureshi And Harsha Devani,JJ. For the Petitioner : Mr. Pranav G. Desai For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Income Tax Act, 1961 ('the Act', for short) was available for income derived from such housing development. There was no restriction that the housing project should not contain commercial area exceeding certain limit. The statute also did not provide for any outer time limit within which such construction should be completed. With effect from 1-4-2005, however, newly introduced section 80IB(10) made two changes which are relevant for our purpose. Firstly, it provided that the undertaking should have commenced the construction of the housing project before 1-10-1998 and should complete the construction in case where a housing project has been approved by the local authority before 1-4-2004, on or before 31-3-2008. Second change intr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. He also noted the assessee's contention that the shops and commercial establishments were part of the housing project. From the beginning, the assessee had not claimed deduction under section 80IB(10) on sale of such commercial units. On such basis, the Commissioner was inclined to allow the assessee's appeal. The Commissioner noted that during the year when the assessee obtained the approval of the housing project, the ceiling on the commercial area in such housing project was not there in the statute and was introduced only for the assessment year 2005-06. 5. The revenue carried the matter in appeal before the Tribunal. The Tribunal rejected the revenue's appeal. It appears that before the Tribunal, the main contention of the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction in which housing project should not exceed 5% of the constructed area was introduced only with effect from 1-4-2005. The assessee cannot be expected to fulfill such requirement long after the housing project was approved and several years after the actual construction had commenced. He further submitted that the assessee abandoned the plan of constructing 'G' type of houses due to commercial non-viability. Not constructing such units cannot be seen as non-completion of the housing project within time. 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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % to the total built up area by way of amendment and reduction of which by further amendment to 3% of the total built up area, has to be necessarily construed on prospective basis. 9. With respect to the second objection of the revenue that even all units in type 'F' were not completed, the same is a pure question of fact. The Assessing Officer himself during the course of assessment had put the assessee to notice on this aspect. The assessee had pointed out that the construction of all units was over and in fact completion certificate was granted on 31-3-2007. It was on this basis the Commissioner (Appeals) had not accepted the revenue's stand of noncompletion of the remaining units other than type 'G' units. No further debate is, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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