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TMI Blog2013 (12) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... ousing project or residential area - The issue regarding applicability of provision of law under clause (d) of sub- section (10) of section 80IB of Act, is relevant for the housing project approved after 01.04.2005 and it cannot be presumed to be decisive as applicable for the old housing project approved much earlier than amended provision of law prospectively - Decided against Revenue. - ITA No. 1002/Mum/2011 - - - Dated:- 23-8-2013 - Shri B. Ramakotaiah And Shri Sanjay Garg,JJ. For the Petitioner : None For the Respondent : Shri O. P. Singh ORDER Per B. Ramakotaiah, AM:- This is a Revenue appeal against the order of CIT(A)-26, Mumbai dated 25.11.2010. The revenue raised the grounds on the issue of allowing deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derived by the builder. It was further submitted that AO examined the issues and allowed the deduction in assessment years 2005-06 and 2006-07. 5. Considering the facts and also relying on the Special Bench decision of the ITAT in the case of Brahma Associates, the ld. CIT(A) allowed the deduction by saying the following:- "5.1 It is pertinent to mention that in the case of Brahma Associates vs. JCTT ITA No. 1417 Spl. Bench (Pune) has also approved the decision of M/s. Saroj Sales Organization vs. ITO Ward 25(2)(3) ITA No. 4008/M/2007, the same finding has also been given by the Ld. CIT(A)-25 in the case of Ms Kinjal Associates in order Appeal No. CIT(A) XXV/ITO 25(1)(1)/ITA 290/08-09 dated 12.08.2009. Further, in the case of M/s Happy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normally should not get benefit of deduction unless the undertaking can show that the income from construction of residential dwelling units can be worked out separately and even after excluding the commercial use of plot, the project satisfies all the requirements of section 80IB (10) on standalone basis." 5.2 Thus, according to this decision, even 10% of commercial area can be allowed whereas, Appellant's shops area is less than 10% of the total housing project or residential area. Therefore, the issue regarding applicability of provision of law under clause (d) of sub- section (10) of section 80IB of Act, is relevant for the housing project approved after 01.04.2005 and it cannot be presumed to be decisive as applicable for the old ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A). First of all the order of ITAT Special Bench in the case M/s. Brahma Associates was more or less approved and in fact the Hon'ble High Court has even not approved the restrictions placed by the Special Bench to 10% of the total built up area for commercial usage when such restriction was not there before the Act was amended w.e.f. 2005-06. Therefore there is no merit in revenue appeal. Further as seen from the order of AO, the common amenities provided to the residents were also considered as commercial area thereby enhancing the area of commercial, so as deny deduction u/s.80IB(10). The gymnasium area provided was part of amenities to the residents and providing free of cost to the residents cannot be considered as commercial area. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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