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TMI Blog2015 (2) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ace. The words "including projections and balconies" were inserted with effect from April 1, 2005, by the Finance Act of 2004. The question whether the definition of built-up area with effect from April 1, 2005, was prospective or retrospective in nature has been considered by in CIT v. Tinnwala Industries [2014 (7) TMI 90 - BOMBAY HIGH COURT] which holds that this definition which has been brought on the statute book with effect from April 1, 2005, would not apply to such projects which are completed prior to April 1, 2005. There are no distinguishing features brought on record which calls for any interference. The Tribunal view is a well reasoned and cannot be said to be perverse. Mr. Chhotaray's submission that the matter should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 4361 of 2010 dated March 28, 2012, since reported in [2013] 353 ITR 36 (Bom) and the special leave petition has been filed before the hon'ble Supreme Court which is pending ? 2. In Income Tax Appeals Nos. 1603 of 2013 and 1757 of 2013 two identical questions of law are proposed, although as worded, they can be distinguished from the common question in Income Tax Appeals Nos. 3 of 2013, 62 of 2013, 1627 of 2012 and 1628 of 2013. The two questions are as under : (i) Whether, on the facts and in the circumstances of the case and in law, the hon'ble Tribunal is justified in holding that the assessee is entitled to the deduction under section 80-IB(10) when the area of plot on which the following project is con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has a minimum area of one acre. The assessee then preferred the appeal before the Income-tax Appellate Tribunal. By the order dated May 4, 2010, it allowed the appeals. The Tribunal concluded that the flat area is less than 1,500 sq. ft. and, therefore, the assessee was eligible for deduction under section 80-IB(10). The Tribunal negated the Departmental representative's contention the agreement indicates super built-up area of more than 1,500 sq. ft. cannot be accepted as super built-up area includes common areas, stair cases and also balcony. The Tribunal concluded that the concept of super built-up area cannot be equated with the built-up area as per the regulations which refers to only to carpet area excluding the balcony and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-05 the Revenue had not raised any objection for deduction claimed under section 80-IB(10). Thus, on the factual aspects the Tribunal, as the last fact finding authority, has found that the project complied with the provisions of section 80-IB(10) and held that the project was compliant with clause (b) as well although the Assessing Officer had held otherwise. 6. Having considered the facts of the case, we find that the issue in these appeals relates only to section 80-IB(10)(b) and (c). Various amendments have been made to section 80-IB(10) by the Finance Act 2003-04 which are as follows : By the Finance Act, 2003, further amendments were made to sec tion 80-IB(10) and they read as under : (10) The amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were effected in the newly substituted sub-section (10) of section 80-IB. It reads thus : (10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the 31st day of March, 2007, by a local authority shall be hundred per cent. of the profits derived in the previous year relevant to any assessment year from such housing project if,- (a) such undertaking has commenced or commences develop ment and construction of the housing project on or after the 1st day of October, 1998, and completes such construction,- (i) in a case where a housing project has been approved by the local authority before the 1st day of April, 2004, on or before the 31st da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d one thousand and five hundred square feet at any other place ; and (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed five per cent. of the aggregate built-up area of the housing project or two thousand square feet, whichever is less. (emphasis supplied) 8. Furthermore, as the Tribunal has correctly observed the concept of super built-up area is used by builders to get higher price and the super built-up area includes common area of the stair-case and the balcony area. Since the super built-up area cannot be equated with built-up area it cannot be stated in the instant case that the area of the flat is more than 1,500 sq. ft. 9. There is no doubt that it is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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