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TMI Blog2011 (11) TMI 689X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction u/s.80IB(10) of the Act without appreciating that the project consists of commercial units. 3. The decision of Hon ble Spl. Bench ITAT, Pune in the case of Bramha Associates vs. Joint Commissioner of Income Tax (2009) (122 TTJ (Pune) (SB) 433) is applicable only for A.Y. 2004-05 and earlier year and not for A.Y. 2006-07 or subsequent year. However, CIT (A) based on this decision allowed relief in assessee s favour for A.Y. 2006-07. 2. The facts of this appeal are in narrow compass. The assessee is a developer and a builder. The assessee claimed deduction u/s.80IB(10). The assessee has undertaken housing project under the name of M/s. Veena Sarang which is having one building consisting of five wings. As noted by the A.O. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (supra) has been confirmed by the Hon ble High Court of Bombay reported in 239 CTR (Bom) 30. The argument of the Ld. D.R. is that Sec. 80IB(10) has undergone amendment w.e.f. A.Y. 2005-06 and from the said year the restriction put by the Parliament is operative. We find that other coordinate Benches have taken a view that the amendment will be only applicable if the project are approved after 1.4.2005 viz. ACIT vs. Late. Smt. Saroj P. Vhora ITA 3530/M/2010 dated 24.8.2011 (ITAT Bench J Mumbai). 4. In the case of Brahma Associates (supra), their Lordships have held as under:- 25. The above conclusion is further fortified by cl. (d) to s.80- IB(10) inserted w.e.f. 1st April, 2005 provides that even though shops and commercial esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project, it would not be open to the IT authorities to contend that the project with convenient shopping alone could be considered as housing projects. In the present case, it is not in dispute that the project is approved for residential and commercial buildings as per the DC Rules, Pune. The fact that the residential buildings under the DC Rules can have commercial user up to 50 per cent of the built-up area of the plot cannot be a ground to hold that the project is not a housing project. It is for the legislature to impose restrictions on commercial user in a project for the purposes of availing s. 80-IB(10) deduction and that has been done by inserting cl.(d) to s. 80-IB(10) w.e.f. 1st April, 2005. Therefore, the decision of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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