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TMI Blog2014 (8) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... s as per approved plan lying adjacent to each other have been combined into one flat and owned by one owner or jointly with some of the members of his family - the rejection of the claim of the assessee for deduction u/s 80 IB(10) on this account cannot be sustained - the rejection of the claim of the assessee for deduction u/s 80 IB(10) cannot be sustained – Decided partly in favour of Assessee. - ITA No. 7147/MUM/2010, ITA No. 7148/MUM/2010 - - - Dated:- 2-5-2012 - Shri N. V. Vasudevan (J.M) And Shri Rajendra (A.M.),JJ. For the Appellant : Shri Rakesh Joshi For the Respondent : Shri V. Saxena ORDER Per N. V. Vasudevan, J.M ITA No.7147/M/2010 is an appeal by the assessee against the order dated 20/8/2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Survey No.45, Hissa No.10, C.S.No.247, 247/1 to 12 of Village Vile Parle (East) Taluka Andheri, Mumbai and another area measuring 595 Sq.mts. forming part of lands bearing Survey No.45, Hiss No.2 (Part) and 9 (Part) and CTS No.229 (Part) and 231 of Village Vile Parle (East), Andheri, Mumbai. It is not in dispute that the housing project carried out by the Assessee in the aforesaid properties was a single project and was being done in accordance with a scheme framed by the State Government for reconstruction or redevelopment of existing building in areas declared to be slum area under the law for the time beings in force. The project had the approval of Slum Rehabilitation Authority (SRA), Government of Maharashtra. The assessee had claime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he completion certificate in respect of such housing project is issued by the local authority; Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (b) the project is on the size of a plot of land which has a minimum area of one acre: (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue on the fulfillment of the second condition is that on 30/9/2008 a survey under section 133A of the Act was carried out in the place where the project were constructed by the assessee in the course of survey it turned out that the following flats which were sold under one agreement to one person had total area as per the agreement which was much more than thousand sq.ft. Flats i.e. B-101 and 102 (Mr. Vijay Choudhary) A-401 and 402 (Smt. Archana Sankhe). Further, it was also admitted that in case of certain flats as below there was single agreement and it has been sold to joint owners:- Since one of the condition for eligibility of deduction under section 80 IB (10) of the Act was that the area of flat developed should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not even revenues case that each of flat on stand alone basis was not a residential unit. Even flats were constructed or planned in such a way that two flats could indeed be merged into one larger unit, as long each flat was an independent residential unit, deduction under section 80-lB (10) could not be declined. What section 80-lB (10) refers to is residential unit and in the absence of anything to the contrary in the Act, the expression residential units must have the same connotations as assigned to it by local authorities granting approval to the project. The local authority had approved the building plan with residential units of less than 1,000 sq.fi. and granted completion certificate as such. There was no ambiguity about the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which such individual is a karta. [Para 7] It is clear that the amendment has been brought with prospective effect from 1-4-2010, and there is no indication whatsoever to suggest that these restrictions need to be applied with retrospective effect. The amendment seeks to plug a loophole but restricts the remedy with effect from 1-4-2010, i.e., assessment year 2010-11. The law is very clear that unless provided in the statute, the law is always presumed to be prospective in nature. It will, therefore, be contrary of the scheme of law to proceed on the basis that wherever adjacent residential units are sold to family members, all these residential units are to be considered as one unit. If law permitted so, there was no need of the inse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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