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TMI Blog2011 (5) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case and in Law, the Ld. CIT(A)-III, Surat has erred in allowing deduction u/s.80IB(10) of ₹ 6,84,44,461/- (Rs.1,80,25,587/- and ₹ 5,04,18,874/-) relying upon the order of the ITAT Special Bench Pune s judgement dated 6/4/2009 in the case of Brahma Associates Others. 5. The brief facts are that it is noted by Assessing Officer in para-3 of the assessment order that while verifying the submissions filed by assessee along with return of income, it is observed that assessee had claimed deduction u/s.80IB(10) for two projects i.e. for Krishna Park Project for ₹ 1,80,25,587/- and Prasiddhi Project for ₹ 5,04,28,874/- total ₹ 6,84,44,461/-. It is further noted by assessee that after verification of details filed by assessee and after physical verification of the project by him, it is unearthed that the assessee had not fulfilled the conditions laid by income-tax Act for claiming the deduction u/s.80IB(10). Regarding Krishna Park project, it is noted by Assessing Officer that the built-up area of row houses comprising of house No.80 to 99 has four units which were bigger in size compared to the other units. The AO has w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) has decided this issue in favour of assessee by following the decision of Special Bench of Tribunal rendered in the case of Brahma Associates v. JCIT (2009) as reported in 119 ITD 255 (Pune) (SB). Regarding the first objection of the AO regarding Krishna Park project that build-up area of row houses is more than 1500 sq.ft. it was held by LD. CIT(A) that the AO is not justified in adding the open area in build-up area. Now the Revenue is in appeal before us. 6. It is submitted by Ld. CIT-DR of Revenue that issue regarding applicability of amended provision of Section 80IB(10) in the present case is covered against the assessee by the judgment of Hon ble Bombay High Court in the case of CIT v. M/s. Brahma Associates in Income-tax Appeal No.1194 of 2010 dated 22-02-2011. He submitted a copy of judgment of Hon ble Bombay High Court, which is kept on record. He submitted that this question was also before the Honb ble Bombay High Court as to whether clause-(d) of Section 80IB(10) was applicable in that case because the A.Y. involved was 2003-04 and hence the project in question was approved before 31-03-2005. It is submitted that this aspect has been decided by Hon ble Bombay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31-03- 2005. It is also submitted by him that this issue is squarely covered in favour of assessee by the decision of Co-ordinate Bench of Tribunal rendered in the case of Saroj Sales Organization v. ITO as reported in (2008) 115 TTJ 485 (Mum) and also by another decision of co-ordinate of this Tribunal rendered in the case of Hiranandani Akruti Jv v. DCIT as reported in (2010) 39 SOT 498 (Mum) in which earlier Tribunal decision rendered in the case of Saroj Sales Organization (supra) was followed. It is also submitted by him that in the case of Raj Developers v. ITO as reported in (2011) 43 SOT 184 (Ahd), the issue was although restored back to the file of Assessing Officer but the decision of co-ordinate Bench of this Tribunal rendered in the case of Saroj Sales Organisation (supra) was taken note of with approval. It is submitted that since the issue is squarely covered by these judgments of co-ordinate Bench of Tribunal, such decisions of co-ordinate Bench of this Tribunal should be followed and appeal of Revenue should be dismissed. 8. Reliance was also placed by him on two judgments of Hon ble apex court rendered in the case of CIT v. J.H. Gotla (1985) as repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection for the second project i.e. Prashiddhi project is this that total commercial/shop area of both these projects are more than 2000 sq.ft. as prescribed in clause-(d) of Section 80IB(10). Regarding first objection in respect of Krishna Park project, we find that a clear finding is given by Ld. CIT(A) that the Assessing Officer has included open area of 754 sq.ft. for computing the total build-up area of each unit of row house as 1654 sq.ft. and open area cannot be included in working out the total built-up area and therefore, this objection of AO is not justified. Ld. CIT-DR of the Revenue could not point out any mistake in this finding of Ld. CIT(A) and hence, on this aspect, we do not find any reason to interfere with the order of Ld. CIT(A) . 11. Regarding the second objection which is common for both the projects i.e. assessee is violating the provision of clause-(d) of Sec. 80IB(10), we find that Ld. CIT-DR of Revenue has placed reliance on the judgment of Hon ble Bombay High Court rendered in the case of M/s. Brahma Associates (supra) whereas the Ld. Counsel for the assessee has placed reliance on various decisions of co-ordinate Bench of this Tribunal which are prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were entitled to Section 80IB(10) deduction, with effect from 1/4/2005 such deduction would be subject to the restriction set out in clause (d) of Section 80IB(10). Therefore, the argument of the revenue that with effect from 1/4/2005 the legislature for the first time allowed Section 80IB(10) deduction to housing projects having commercial user cannot be accepted. 12. From the above para of judgment of Hon ble Bombay High Court, it is seen that it is not held by Hon ble Bombay High Court that clause (d) of Section 80IB(10) is applicable to those projects which are approved on or after 01-04-2005. But it is held that from 01-04-2005, deduction u/s.80IB(10) would be subject to the restriction set out in clause-(d) of Section 80IB(10). In our humble understanding, this judgment of Hon ble Bombay High Court covers this issue against the assessee and therefore, the various decisions of coordinate Bench of this Tribunal cited by Ld. Counsel for the assessee are of no use in the light of this judgment of Hon ble Bombay High Court. We respectfully follow this judgment of Hon ble Bombay High Court in preference to various decisions of co-ordinate Bench of this Tribunal. Regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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