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TMI Blog2014 (2) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT(A) erred in allowing the deduction under section 80lB to the assessee, without appreciating the fact that the total commercial space of the assessee's project is 6.12% of the built up area whereas as per clause (d) of the section 80IB(10), inserted w.e.f. 1.4.2005, the maximum commercial space in a project is allowed up to 5% of the built up areas only; 2. on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing the deduction under section 80lB to the assessee relying on the judgment of special bench in the case of Brahma & Associates reported in 119 ITD 255, ignoring that the facts of the said case will not be applicable here as fact of that case relates to AY 2003- 04 i.e. prior to insertio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in Goetz (India) Ltd V/s CIT (2006) 284 ITR 323 (SC) and accepting the revised computation filed by assessee. The appellant prays that the order of the ld. CIT(A) on the grounds be set aside and matter may be decided according to law. The appellant craves leave to amend or alter any ground or add a new ground or to submit additional new ground which may be necessary" 2. At the time of hearing, it was pointed out that grounds in the appeal for assessment year 2007-08 are similar to that of ground Nos. 1 and 2 of the appeal for the assessment year 2008-09 and it relates to the same project on similar issue. In view of above, it was agreed that both the appeals be heard together and be dispose off by a common order. Therefore, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the provisions of Section 80AC are applicable. Accordingly the deduction claimed by assessee u/s 80IB of the Act of Rs.24,85,233/- is to be disallowed on that ground as well. Being aggrieved, assessee filed appeals for both the assessment years under consideration. 5. In respect of assessment year 2007-08, the ld. CIT(A) stated that the issue of claiming of deduction u/s 80IB on account of built up area of shops and commercial establishment was considered by ITAT in assessee's own case in ITA No.7297/Mum/2007 for assessment year 2004-05 vide order dated 2.6.2009 wherein the assessment order was set aside and following it, he has directed AO to examine the claim of the assessee as per directions of ITAT and give effect on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred the decision of the Hon'ble Apex Court in the case of Kulu Valley Transport Co. P. Ltd. V/s CIT [1970] 77 ITR 518. Ld. CIT(A) has stated that similar issue in the context of section 54F also came before the Hon'ble Punjab and Haryana High Court in the case of CIT V/s Jagruti Agarwal (339 ITR 610) (P&H) and it was held that sub-section (4) of section 139 has to be read along with sub-section (1) of section 139 and therefore due date for furnishing the return of income according to section 139 was subject to extended period provided u/s 139(4) of the Act. Ld. CIT(A) stated that similar issue was also considered by the Hon'ble Jurisdictional High Court in the case of Trustees of Tulsidas Gopalji Charitable & Chaleshwar Temple Trust V/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time prescribed as per section 139(1) of the Act. In view of above, the department is in further appeals before the Tribunal. 7. At the time of hearing, ld. DR supported the orders of AO in denying the deduction u/s 80IB (10) of the Act in view of the amendment made by insertion of clause (d) of section 80IB (10) with effect from 1.4.2005 on the ground that aggregate area of shops and commercial area of the assessee is 3382 Sq.ft which is 6.12%. The ld. DR submitted that in view of amendment, the benefit is not available to the assessee in the assessment year falling after the amendment and also placed reliance on the decision of ITAT, Mumbai Bench in the case of ITO V/s M/s Everest Home Construction (India)Pvt. Ltd in ITA No.7021/Mum/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment years 2005-06 and 2006-07, the assessment years which also falls after the amendment made by insertion of Clause (d) to section 80IB(10) of the Act, applicable from 1.4.2005 has held that the assessee is eligible for deduction u/s 80IB(10) of the Act in respect of the housing project. As there is no change in facts and circumstances in the assessment years under consideration viz assessment years 2007-08 and 2008-09, the above decision of ITAT squarely apply to these assessment years as well. Not only this, the similar issue had also come before the Hon'ble Gujarat High Court in the case of Manan Corporation V/s ACIT reported in 214 Taxmann 373 (Guj) while considering the appeal for assessment year 2006-07 wherein it was held by Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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