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TMI Blog2011 (10) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... as raised the following common grounds in these appeals: 1.On the facts and circumstances of the case and in law, the Id. CIT(A) erred in allowing the claim of deduction u/s. 801B( 10) of the I.T. Act. 1961 made by the assessee even though the Assessing Officer rejected the claim of such deduction on the grounds: i that the build up area of the 68 shops included in the housing project of tenements exceeded 5% of the aggregate built-up area of the housing project. thereby contravening the provisions of Sec. 801B(10)(d) of the Act. ii) that the assessee was a contractor and not a builder and iii) that the assessee has sold TDR and the same being movable asset, the provisions of Sec 801B (10) of the Act did not apply being applicable l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under consideration from MMRDA and the income of the assessee is not directly from the development of the project but by sale of TDR, which is not entitled for deduction u/s 80IB(10) of the Act. He has further submitted that the assessee has constructed 68 shops in the housing project which exceeds the prescribed limit of 5%. Even the commercial area in the project exceeds 10% of the total constructed aree of the project; therefore, the assessee is not entitled to the deduction. He has further contended that the housing project was sanctioned after 31.3.2005; therefore, the amended provisions of sec. 80IB(10) is applicable. He has relied upon the order of the Assessing Officer . 4.1 On the other hand, the ld AR of the assessee has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by virtue of first proviso therefore, when the assessee has not claimed any benefit under the proviso, the question of the scheme of SRA, as notified or not, does not arise. Accordingly, we do not find any merit in the objection raised by the ld DR. 5.1 As regards the objection regarding the commercial establishment is concerned, as per remand report, the Assessing Officer has accepted the fact that the project was approved vide agreement dt 11.5.2004; therefore, the pre-amendment of provision of sec. 80IB(10) are applicable. Accordingly, in view of the decision of the jurisdictional High in the case of Brahma Associates (supra), there is no bar of commercial establishment in the housing project for availing deduction u/s 80IB(10) prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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