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TMI Blog2015 (6) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... en if the proportionate area of plot is excluded from the total area of the plot of the project all other conditions prescribed u/s 80-IB(10) including the size of the plot are satisfied. Accordingly following the earlier order of this Tribunal we do not find any error or illegality in the order of CIT(A) allowing the proportionate deduction u/s 80-IB(10). - Decided in favour of assessee. - ITA No.2957/Mum/2011, ITA No.2958/Mum/2011 - - - Dated:- 25-3-2015 - Vijay Pal Rao And N K Billaiya JJ. For the Appellant : Shri Surinder Jeet Singh For the Respondent : Shri Bhupendra Shah ORDER Per: Vijay Pal Rao: These two appeals by the revenue are directed against two separate orders of CIT(A) both dated 24.01.2011 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of condition prescribed u/s 80-IB(10), the project of the assessee becomes ineligible for deduction u/s 80-IB(10). In support of his contention, he has relied upon the following decision of co-ordinate benches of this Tribunal in the case of ACIT Vs. Ekta Sankalp Developers dated 12.09.2014 in ITA No. 3316 and 3318 of Mumbai 2012 and submitted that the Tribunal has observed that there is no scope of any proportionate allowance of deduction u/s 80-IB(10) as held by the Hon'ble Jurisdictional High Court in the case of CIT Vs. Brahma Associates 333 ITR 289 5. On the other hand, the Ld. Authorized Representative has submitted that an identical issue has been considered by the Tribunal in assessee s own case for A.Y. 2004-05 to 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplated is only a housing project as approved by the local authority, to which (approval) the provision refers to, so that the same, where not violative of any of the conditions listed in the provision, as with regard to the extent of commercial user (which condition did not exist in the provision as it stood at the relevant time), could not be imposed by judicial diktat. Further, the project, as approved, is a single project, which either satisfies the conditions enlisted in the provision or not. There was therefore no scope for bifurcating it s profits into that subject to deduction there-under and not so. The following words capture the decision, which follows a comprehensive discussion on the various aspects, and in harmony and agreemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposition is even otherwise inconsistent with the fundamental principle that any deduction is subject to eligibility, i.e., satisfaction of each of the conditions precedent. Further, our reading of those decisions by the tribunal, did not exhibit any discussion on or an interpretation of section 80- IB(10)(c), as indeed was also the case for the judgment by the hon ble court in Brahma Associates (supra). The provision is accordingly examined closely, to find clause (c) as worded differently from the other clauses of section 80-IB(10), setting forth the conditions precedent for the eligibility to deduction of the profits of the project. The said clause, on a fair construction, was found to contain a condition with reference to the reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, for which we may refer to Bajaj Tempo Ltd. vs. CIT [1992] 196 ITR 188 (SC) relied upon by the tribunal in the various orders, as far as appears on a reading of their extracts as listed in the tribunal s order for A.Y. 2007-08 (supra). The interpretation is also in accord with a purposive and liberal approach, advocated by the apex court in, inter alia, Bajaj Tempo Ltd. (supra). The provision being an incentive provision, toward promoting the growth of affordable housing in the country, the construction enables the same, while at the same time operating to exclude the extension of the incentive to housing that is not covered or targeted by the provision, as sought to be included by the ld. AR. Again, it is trite law that the benefit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to these decisions, finally, it was held that assessee was entitled to proportionate allowance u/s. 80IB(10) of the Act. We do not see any reason to disagree with our earlier order Upholding the order of the FAA, we reject the Grounds of Appeal filed by the AO. 8. Since the issue is a recurring issue and we find that even if the proportionate area of plot is excluded from the total area of the plot of the project all other conditions prescribed u/s 80-IB(10) including the size of the plot are satisfied. Accordingly following the earlier order of this Tribunal as well as in view of the Judgment of Hon ble Calcutta High Court in the case of Bengal Ambuja Housing Development Ltd Vs. DC (supra), we do not find any error or illegality in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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