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TMI Blog2010 (6) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... lidated order. 2. The revenue has raised following effective common grounds of appeal in all these appeals.: a. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to allow deduction u/s 80IB in respect of residential flats having built up area of 1000 sq.ft.s or less i.e. on pro-rate basis when there is no express provision in the Act to allow the same in such manner; c. On the facts and in the circumstances of the case and in law, the ld. CIT(A) has erred in directing the AO to allow deduction u/s 80IB by not appreciating the fact that the assessee s project also had some commercial units/establishments which was not contemplated by the Act. The Act says that it should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the findings of the assessment year 2003-04. 4. On appeal, the CIT(A) has allowed the claim of the assessee in view of the amended provisions of section 80IB(10) by Finance (No.2) Act 2004 w.e.f. 01.04.2005. The CIT(A) has noted that the condition for completion of project has been waived as per the amendment and more specifically in the foot note regarding the amendment. 4.1 As regards the commercial area is concerned, the CIT(A) has referred the CBDT circular no.F.No.205/03/2001/ITA/II dated 04.05.2001 whereby it is clarified that any project which has been approved by a local authority as a housing project should be considered adequate for the purposes of section 10(23G) and 80IB(10). Further, the CIT(A) was of the view that cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the project should be housing project and there is not scope for any commercial establishment. 6. The third line of argument of the learned DR is that the project is not completed within the stipulated time. He has pointed out that as per the existing provisions of law at the relevant point of time of the assessment, the required project would have been completed by 31.3.2003. Therefore, when the project could not be completed up to the time limit prescribed under the existing law, the assessee is not entitled for deduction under the provisions of section 80IB. He has relied upon the order of the AO. 7. On the other hand, the learned AR of the assessee has submitted that the condition of completion of housing project in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in (2009) 25 DTR (Nag) (Trib) 287 and the decision of Bengalore Bench of the Tribunal in the case of DCIT V/s Brigade Enterprises (P) Ltd (2008) 14 DTR 371 (Bang) (Trib). The ld. AR of the assessee further contended that as per the amended provisions of section 80IB shops and commercial establishments are permitted which need not be essentially selling only milk, diary products, bakery items and other general stores of kirana or flour mill only. The only condition for commercial establishment is that there should be an approval by local authority for establishment and commercial establishment. He has relied upon the order of this Tribunal in the case of Harshad P Doshi V/s ACIT 25(2), in ITA No.2305/M/2006 dated 28.01.2007. 9. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of section 80IB(10) are satisfied and particularly the area of the project should not be reduced to less than the area as prescribed in the section 80IB after excluding the proportionate area of the unit of the flats having built up area more than 1000 sq. ft. Therefore, in other words in order to allow pro-rata deduction u/s 80IB(10) it has to be seen that after excluding proportionate area of the project in the ratio of built up area of the flats having more than 1000 sq.ft to the built up area of flat laving less than 1000 sq. ft and if after excluding the proportionate area of the project with respect to the flats having more than 1000 sq.ft built up area the remaining project is still having minimum one acre of the area then pro-r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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