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TMI Blog2015 (6) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. Hence taking note, of all the facts on record, therefore to hold that the appellant is eligible for deduction u/s 80IB(10) of the Act. As could be noticed from the order of the learned CIT(A), when there is a specific direction to the AO by the ITAT to follow the Special Bench decision of ITAT it has to be assumed that the direction is with reference to the issues which were originally objected to by the AO and the AO cannot take advantage of the order of ITAT for repeating the addition, defying the directions of the ITAT. At least the senior officer such as Commissioner of Income Tax should have carefully perused the record and CIT(A)'s order before granting authorisation. The very fact that the AO filed the appeals without even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of ₹ 1,97,63,000/- u/s 80IB, without appreciating that ITAT, Special Bench, Pune in the case of Brahma Associates 119 ITD 255 for AY 2003-04 has categorically held that the position with effect from AY 2005-06 would be different in view of the specific restriction introduced by S 80IB(21)(d) which provides that the commercial use of built-up area shall not exceed 2000 sq.ft. or 5% of the aggregate built up area, whichever is less. 3. On the facts and circumstances of the case and in law, the learned CIT(A) erred in holding that the amended section 80IB(10)(d) would not apply to the assessee's project as they are approved and started before 01.04.2005, without appreciating the ratio of the decision of the Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions to be fulfilled but the assessee has not furnished particulars with regard to fulfilment of other conditions. It deserves to be highlighted that in the first round of litigation the AO has not disallowed the claim of deduction under section 80IB(10) on any other ground other than the two specific issues mentioned above and the said two issues having been decided in favour of the assessee by the ITAT Special Bench, Pune the matter was restored to the file of the AO to follow the view taken by the ITAT Special Bench but the AO repeated the addition without even giving an opportunity to the assessee and by impliedly defying the direction of the ITAT. 5. Aggrieved, assessee preferred an appeal before the learned CIT(A) who in turn took ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal. 4.13 Having considered all the factual position of the case, I find that as per original order the dispute was w.r.t. commercial construction in excess of prescribed limit u/s. 801B(10) of the Act. The second dispute was that the project was not completed within 31-03-2008 and therefore the claim u/s. 80IB(10) is denied by the AO. However I find that the CIT (A)-XXVII vide his order dated 15/10/08 has already deleted the addition and allowed the deduction u/s. 801B (10) of the Act. Further the issue was again taken by the Department before Hon'ble ITAT, Mumbai wherein through common order for the A.Y. 2005-06 and A.Y. 2006-07, the matter is restored to the file of AO to decide the dispute keeping in view the decision of Pune Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has fulfilled all the conditions for claiming deduction u/s 801B(10), the deduction cannot be denied merely because the appellant did not obtain the completion certificate on or before 31.03.2008. Moreover, the project of the appellant was approved before 31.03.2005, there was no requirement of obtaining the completion certificate. Further to that the appellant's 'Housing Project' was approved by local authority prior to 01.04.2005, which has not been disputed at all by A.O. anywhere in his order. Further to that, as the jurisdictional Bombay High Court in the case of CIT vs. Brahma Associates (supra) has very categorically held that Housing Project - Special Deduction under section 80IB(10) - Law Applicable - Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated facts of the case and also the submission filed by, the appellant, I am of the considered view that in the appellant's case the provisions of section 801B(10) are applicable, as the appellant's project was approved prior to 01/04/05. The subsequent amendment will not affect the appellant's case in view of jurisdictional Bombay High Court decision in the case of Brahma Associates vs. JCIT (supra). As it is evident from the appellant's submission that the appellant comply all necessary conditions as envisaged under the provisions of law for claiming deduction u/s 80IB(l0) of the Act. Hence taking note, of all the facts on record, I am of the considered view to hold that the appellant is eligible for deduction u/s 80IB(10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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